Examination of Witness (Question 240-259)
Sir David Edward QC
13 DECEMBER 2006
Q240 Chairman: That is very helpful and
there are an awful lot of points there which we will no doubt
want to touch upon as we deal with other things. We do not start
with a green field; we have an existing situation, and you say
there is a move towards de-politicisation, but you do not, on
the other hand, want to transfer it to judicialisation. How do
we cope with that tension in the existing scheme of things in
terms of merger decisions in Europe?
Sir David Edward: I think it could be easier
to create a body (either within the Commission or separate from
the Commission) which would be responsible for taking certain
competition decisions, in particular the decision to find an infringement
of Article 81 or 82, to fine and to prohibit a merger. That arrangement
does exist, as has been pointed out, to some extent in the United
States and in Germany, so I do not think it is impossible to go
down that route. For me that could be an easier route and a more
satisfactory route than creating another court, subject to other
problems, of course.
Q241 Chairman: That is another body at
the initial decision making stage, therefore, which you have to
bring into being. There would still then be the process of review,
but as I apprehend what you are saying is that you might not need
to review so often; you would have achieved your quality control,
hopefully, at the earlier stage. Is that what you are saying?
Sir David Edward: That is my feeling. The point
has been made by a number of witnesses that they are dissatisfied
with the way in which decisions are taken and it seems to me that
the time has come to consider taking the decision making role
away from the same body which conducts the investigation and prosecution.
Q242 Chairman: That has not, as you appreciate,
been the main thrust of our inquiry. It is not a prominent suggestion,
although it is true that others have touched upon that general
area. But as I apprehend, Sir David, you do recognise that something
ought to be done because at the moment the overall process is
such that, generally speaking, if a merger is initially blocked
then the very passage of time of itself is going to frustrate
it. The suggestion you have just made apart, where would you target
your efforts to get a faster overall decision making process including
the finality of which understandably you also speak?
Sir David Edward: I would urge procedural autonomy,
but that is maybe a big step.
Q243 Chairman: We will need to unpack
that, I think, and probe you a little on exactly where that could
take us, but put that on one side for the moment.
Sir David Edward: I have made a number of suggestions
as to how the Court of First Instance might improve or refine
its fast-track procedure but I do think that apart from quite
small tweaking here and there, there is not a real solution to
this problem as matters stand.
Q244 Chairman: So it is tweaking here
and there. Which procedural rule is most obstructive, which most
inhibits the sort of improvement in procedures that otherwise
you could see open to the court?
Sir David Edward: It is not really a single
rule, it is the complex of rules. They provide a long time limit
for the lodging of the attack on the Commission's decision. There
is the written procedure and only to a certain extent can the
Court of First Instance actually cut down the time spent. As has
been demonstrated, the Court can say that it wishes short submissions,
and so on, but the parties do not necessarily comply with it.
There is also the consideration that some people in the procedure
may not want a quick decision. I have made a few suggestions and
they coincide with some of the suggestions made by John Temple
Lang, but I do not think there is a very easy way of doing it.
What I am not clear about is why a new competition court should
be any more able to do it than the existing Court.
Q245 Chairman: Even if it is custom-built
to deal principally with those aspects of competition law which
are the most urgent, mergers and acquisitions prominent amongst
them?
Sir David Edward: The question is whether the
Member States, in creating the court, would give it the degree
of procedural autonomy to address these problems. I was the Chairman
of the Committee of the CFI when it started, which was responsible
for drawing up the CFI's rules of procedure. My experience of
dealing with the Member States—and as I have pointed out,
dealing with the Member States is dealing largely with officials
of the Ministries of Justice—was not encouraging.
Q246 Chairman: I rather had the impression
from Sir Christopher Bellamy's evidence last week, because I think
he was fairly prominent in setting up the Civil Service Tribunal—I
appreciate it only came on-stream on 1 January this year and he
had gone before then, but I think he was prominent in arranging
it—
Sir David Edward: No, his role was in selecting
the judges.
Q247 Chairman: In selecting the judges,
not in setting it up, or the procedural rules?
Sir David Edward: No.
Q248 Chairman: Those encountered the
self-same difficulties?
Sir David Edward: I do not know, but it has
to be remembered that the Staff Tribunal is dealing with internal
problems and almost never do you have an external party. It is
an individual against the institution.
Q249 Chairman: And in this case the Commission?
Sir David Edward: In the Staff Tribunal, no,
it is any -
Q250 Chairman: I thought that the CFI
dealt with the Staff Tribunal from the outset?
Sir David Edward: The CFI was the Staff Tribunal.
Q251 Chairman: But I am talking about
the Civil Service Tribunal. That is the same thing?
Sir David Edward: Yes. What happened was that,
when they set up the CFI, what were transferred to us in the CFI
were competition cases and staff cases; staff cases are cases
brought by a member of staff or a group of members of staff against
one or more of the institutions about the terms of employment.
It can go from where somebody has been rated B in his report and
he wants to be rated A to a major question of employment fairness
and discrimination. It is that jurisdiction which has now been
transferred to the Civil Service Tribunal or the Staff Tribunal.
Chairman: Yes, I follow.
Q252 Lord Lester of Herne Hill: I wonder
whether I could ask two questions. First of all, of course in
this country the Judicial Committee of the Privy Council took
years to free itself, through government intervention, from having
to deal with the equivalent of staff cases involving the professions.
It took years and years and at last it has happened, to the benefit,
I think, of everybody. The Staff Tribunal set up within the European
Union really is very similar to the staff tribunals set up for
international organisations under the auspices of the United Nations.
Sir David Edward: It is really the EAT for the
European Union.
Q253 Lord Lester of Herne Hill: So there
is nothing very difficult about doing that. I think that is right.
What I do not understand, because my knowledge tends to be more
on the Strasbourg side than the Luxembourg side, is how it comes
about that the Strasbourg Court is permitted complete procedural
autonomy in devising the rules of the European Convention of Human
Rights? As far as I am aware, it does not have to consult or certainly
get the consent of the Member States and yet within the Luxembourg
system the Court has to ask the consent of the governments before
it can change its procedures, is that right? If that is right,
why is that so?
Sir David Edward: It may be because we were
largely responsible for drafting the European Convention on Human
Rights, I do not know, but we did not draft the Treaties which
set up the Communities. Maybe at the time, in 1950, there was
a greater readiness to let the Strasbourg Court create its own
rules. As I said, culturally most of the Continental Member States
are rather against procedural autonomy and case management, but
I think it is also true that international tribunals, where Member
States' interests are involved, tend to have their rules fairly
tightly prescribed. Really I cannot say more than that why it
should be so, but there is no doubt that it is so and that every
attempt we made in the Court to free ourselves from these shackles
failed.
Q254 Lord Neill of Bladen: On the subject
of juge legal, is there some sort of suspicion that
you will get a "fixed" court if you allow freedom of
appointment? It is very much the pragmatic Anglo-Saxon tradition,
as you know, horses for courses. If you have a case on banking,
you try and pick a judge who has been practising for most of his
career in banking law. But that would be anathema, would it, on
the Continent?
Sir David Edward: It is not all Member States,
it is mainly Germany, because in the Nazi courts the court was
"fixed", and also the professional judges found it convenient
not to sit on certain cases. So it is a two-way process as far
as they are concerned. You should not be able to fix your court
and a judge should not be able to avoid sitting in a court in
which he or she does not want to be involved. It is a perfectly
understandable principle, but it is not a very satisfactory principle
in the European Union context because, for example, it now leads
to a situation in which the Grand Chamber of the Court of Justice
can hear a case, a preliminary reference, from a Member State
without the judge of the Member State. Under the Nice Treaty,
each Member State has a right to have a judge but the judge of
that Member State may not be part of the court which is hearing
the case. I used to find, not that one was urging a particular
national position, but that one had to explain, for example, how
the National Health Service works in Britain and why it is different
from the Belgian National Health Service. The judge of the country
from which the problem comes is, to say the least, useful in that
respect, but now that is not necessarily possible.
Q255 Chairman: Whereas in Strasbourg
invariably it is?
Sir David Edward: Indeed.
Q256 Chairman: And if our permanent judge
is conflicted, then an ad hoc judge is appointed, as Lord Mance
has been and I have been?
Sir David Edward: Yes.
Lord Lester of Herne Hill: A practice
which has been criticised!
Chairman: We will not go down that road!
Q257 Lord Jay of Ewelme: It seems to
me there are three possible causes of the difficulty arising over
delay. One is the sheer pressure of business in the Court itself.
The second is that the inherent nature of merger cases means that
they take a long time for all sorts of reasons. The third is just
procedural complexity. From what I understood you to be saying,
it is more the second and the third to which you would ascribe
delay, is that right?
Sir David Edward: Yes. I think there is also
an element of case overload. I do not know in detail, but what
I am told by my former colleagues on the CFI is that they hope
for a considerable diminution of case overload with the creation
of a trademark panel, in which event the problem of the competition
cases will not be so acute. So there is a problem of case overload,
but you can detect in some of the evidence a real conflict between
those who say, "I want it done quickly, but I want it done
thoroughly", and, "I want to be able to examine all
the economic considerations which have gone into this decision,
and in any event I challenge fundamentally the economic theory
on which it is based". You cannot have both, to be realistic.
Q258 Chairman: We have discussed a number
of aspects of the procedures but we have not actually touched
yet on language. To what extent is language a significant aspect
of the process which promotes delay?
Sir David Edward: I am not aware in detail.
I think in merger cases it is less of a problem in the sense that
for the time being Community-wide mergers are likely to involve
companies which will prefer one of the major languages and to
that extent it will be easier for the Court of First Instance
to operate in that language. The difficulty really is the translation
of documents into the working language of the Court if they are
going to use as the working language a language other than the
language of the case, which is not always the case, but it is
also the translation of the end product. Their judgments have
to be translated. They can be issued in the language of the case,
but they almost always have to be translated into at least English
and French before being published.
Q259 Lord Clinton-Davis: Will the advocates
be able to have a view on that, and to what extent is the Court
likely to hear them?
Sir David Edward: I have myself, as rapporteur
in the Court of Justice, agreed with counsel in a direct action
case that we would process the case in English and everything
was conducted in English, but the problem was that at the end
the judgment had then to be written and produced in other languages,
and that took two to three months. As I pointed out in my written
evidence, the Court translation service is geared to a particular
way of doing things and if you start changing the way in which
the translation divisions work, then first of all there are budgetary
considerations and then there are administrative considerations.
So it is not all that easy to change, even with the consent of
parties, and of course the Member States, as I have pointed out,
have a right to intervene in their own languages, although I think
in merger cases they relatively rarely do so.
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