Examination of Witnesses (Questions 220-238)
SIR CHRISTOPHER
BELLAMY, MR
CHARLES DHANOWA
6 DECEMBER 2006
Q220 Baroness Kingsmill: So the Competition
Court might not necessarily be the best way to do it, but it is
probably the most practical if you are going to do it at all?
Sir Christopher Bellamy: That would be my view.
Q221 Chairman: If it is to be done that
way, looking at the composition of the new panels, assuming—and
we touched on this earlier—that they do not have to be lawyers
but would have judicial powers, how would you see that? Would
you welcome non-lawyers being appointed to them?
Sir Christopher Bellamy: We have a very long
tradition of that in this country dating back to the Restrictive
Practices Court in the 1950s through to the present CAT on which
I sit with two wingers who are not necessarily lawyers but can
easily be professors of economics and so forth. It is very common
in, for example, the French system where the judges in the tribunaux
de commerce are all non-lawyers and exactly who you would
go for I do not know, but there are quite a lot of distinguished
business people, professors, accountants and so forth who, I am
sure, would have a good view on these things.
Q222 Chairman: And economists.
Sir Christopher Bellamy: And economists yes.
Q223 Chairman: You think that they would
have a real contribution to make?
Sir Christopher Bellamy: I think they would
have a contribution to make. There is some theological objection
sometimes in continental circles to having a judge who has a particular
sort of expertise deciding economic questions. It is a bit like
the issue of the medical member of the mental health tribunal
panel deciding on medical issues, a slight fear that he will decide
it because of his personal view on the subject rather than weighing
the balance of the argument. That has never been a problem in
any scenario I have ever been involved in. I think it would be
very good to move to a slightly wider perspective in some of these
merger cases especially as in this area, as Baroness Kingsmill
will know, the authorities are moving much more towards an economics-based
analysis, which is much more than a black-letter analysis, to
much more economic theory and so forth, which means judges have
to train up to deal with it. We need, I think, more economic expertise
in all these areas, which is another reason for thinking very
hard about the kinds of qualifications, background and experience
you need for the judges who have to decide these cases.
Q224 Chairman: Do you think your erstwhile
colleagues would take that same view?
Sir Christopher Bellamy: It is not something
I have discussed with them but, from the point of view of a common
lawyer, it is sometimes difficult to see how in the continental
system you really do decide on conflicts of expert opinion or
on disputed issues of fact, and economic fact could be one, because
you have not got the structures to do it of the kind we are used
to. I would have thought you could appoint a court expert, he
would write his report and back it comes and you would read it
and either accept it or not, but we have not yet got the ability
to have the dialogue that I think is necessary to understand these
cases and to get to the bottom of it, which is what Baroness Kingsmill
did in the Competition Commission and we try to do in the CAT.
Q225 Chairman: What about the case for
national competition judges being seconded? I know you are pre-eminent
amongst them and I am sure that you would not wish it for yourself,
but how do you see it?
Sir Christopher Bellamy: This, again, I think
is part of a much wider issue and I have thought for some time
now that there is too wide a gulf between the job the judiciary
is doing at national level and the job the European judiciary
is doing. Anything that can be done to lessen that gulf so that
the two parts of the system understand each other much better,
have an exchange of experience and participate in what each other
is doing, would be a positive development. I would very much like
to see in principle some kind of system whereby the Council of
Ministers established, probably by open competition but not necessarily,
a list of nominated national judges who were available to sit
in the European Court, and perhaps did go and sit for a period
of time either on specific cases or for a period of six months,
a year or whatever, as an extremely valuable refreshment of the
European system and a sharing of knowledge of what is happening
at national level.
Q226 Chairman: That answer is not confined
at all to the context of competition cases but across the board?
Sir Christopher Bellamy: Not at all.
Q227 Chairman: Would there be any particular
value in competition cases?
Sir Christopher Bellamy: I would hope so, although
there is a long way to go. Apart from our own jurisdiction here
in the United Kingdom, in the Oberlandesgericht in Frankfurt,
the Court of Appeal in Paris, the Market Court in Stockholm and
a number of other Member States' courts there is now very considerable
expertise in competition problems. I think it is a pity that the
Community does not draw on that in some way or another, so I would
very much like some kind of thought to be given to this kind of
possibility.
Q228 Chairman: Once again you could run
up against linguistic problems.
Sir Christopher Bellamy: You could, indeed.
Q229 Chairman: As to where it sits, I
am not sure it matters greatly but have you got any views?
Sir Christopher Bellamy: We have some very nice
premises in London, fully-equipped.
Q230 Chairman: But if there is to be
a new panel?
Sir Christopher Bellamy: It does not particularly
matter where it sits. It has to have a registry somewhere, I suppose,
and it has to have access to translation, which can increasingly
be done these days through email and all the rest of it, but I
am not sure that it matters particularly where it sits.
Q231 Chairman: A loose final question
on the future role of the CFI. Were it to be freed from the amount
of work it still has to do on competition cases, should it be
given the jurisdiction to hear preliminary references applying
Community competition law under 225(3)?
Sir Christopher Bellamy: I think there is a
good argument for that in cases which can be properly identified
and isolated as being pure Article 81 and Article 82 cases. Indeed,
I think there is some argument for saying that the Court of Justice
is not particularly well-adapted to doing those kinds of cases
in a sort of one-shot way. They tend to be very fact-intensive
and the Court of Justice is not geared up really to fact-intensive
cases. There are certainly some that might well need more than
one level of jurisdiction to get it right, so I think you could
deal with quite a number from the CFI and there would be the odd
one or two a year that would have to go up to the ECJ but with
the benefit of what the CFI had done I think might be quite helpful.
Q232Chairman: Would Courage v Crehan
be one such?
Sir Christopher Bellamy: I am not really sure
Courage v Crehan is really a competition law case in the
sense that I am talking about, I think it was much more about
remedies, damages and contractual obligations. It is perhaps not
without interest that there is an organisation, of which I was
for some time president, called the Association of Competition
Law Judges, an association to which all the Member States' judges
who do competition law belong. In that Association the German
judge proposed and the French judge seconded that the Association
should work in English, so there is, I think, a certain amount
of acceptance that English is the vehicular language in this area.
Q233 Lord Mance: The place where
the Court sat could be rather significant in that respect, could
it not?
Sir Christopher Bellamy: In terms of language?
Q234 Lord Mance: Yes.
Sir Christopher Bellamy: In what way?
Q235 Lord Mance: It could well lead
to a change of language if it sat away from Luxembourg.
Sir Christopher Bellamy: It could, yes.
Q236 Chairman: Or it could be peripatetic.
Sir Christopher Bellamy: It could be peripatetic.
Q237 Chairman: Now Mr Dhanowa has sat
here, is he your minder?
Sir Christopher Bellamy: He is there to catch
the balls that I have dropped!
Q238 Chairman: I am not sure you have
dropped any. Unless he, therefore, has anything that he wishes
to add or other members of the Committee have any further questions,
thank you very much, Sir Christopher, for coming here. It has
been an enormous help and we really are grateful. I know how difficult
it has been for you to fit us in. Thank you very much.
Sir Christopher Bellamy: Thank you very much
for fitting me in. Thank you very much indeed.
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