Examination of Witness (Questions 280-299)
Sir David Edward QC
13 DECEMBER 2006
Q280 Lord Mance: Could you run such a
system in relation to a court like the CFI, and how would it fit?
Would it be on top of the existing one state, one judge?
Sir David Edward: This is on the assumption
that you accept that you will have one judge per Member State
and then you will say, "We will appoint nine more",
and you would select them in that manner.
Q281 Lord Mance: Do you think the time
is right and that Europe would accept this?
Sir David Edward: If you need more, I think
it would be difficult to get it through the Council, but I think
it is not impossible.
Q282 Chairman: Would it be any more difficult
than getting through a new judicial panel?
Sir David Edward: I should not think so, no.
Q283 Chairman: So if you need the additional
manpower that would be your preferred route forward?
Sir David Edward: Yes. As I said at the very
beginning, I think entities are not to be multiplied without necessity.
Q284 Chairman: No, quite, "Occam's
razor".
Sir David Edward: The fewer bodies there are,
the better, but I accept that both Judge Vesterdorf and Sir Christopher
Bellamy say this is bound to come sooner or later. Let us assume
that it is. They are both talking in terms of a five, 10 year
period, and what the CBI is talking about is, let us try and solve
this problem now.
Q285 Chairman: You do not see, particularly
when they offload the trademark work, that there is a present
crisis?
Sir David Edward: There may be, but I have not
seen the evidence of it. I am looking at this from afar now and
I do not want to get too far into saying they have not made a
case. It is just that I have not seen the case.
Q286 Chairman: One has the impression,
not only from the CBI, of course, but also perhaps from Judge
Vesterdorf's letter, though we have not yet heard evidence from
the CFI, that there is a certain enthusiasm certainly from those
quarters for the creation of a further judicial panel beneath
the CFI to deal with specific competition work. On the whole,
you would seem to disagree with this. Have you any reason to suppose
that your erstwhile colleagues on the ECJ, on the actual Court
take a different view from you?
Sir David Edward: So far as I know, there is
a clear difference of opinion in both Courts.
Q287 Chairman: When you say "in
both" you mean not between but within each?
Sir David Edward: Within each, some are more
enthusiastic for changing the structure than others. There were
Members of the Court of Justice who were very, very opposed to
the creation of the CFI, let alone any other subordinate tribunal,
and I was aware of that when I went there because we were not
entirely welcome. I think there is a difference of opinion. As
I say, the motivation for Judge Vesterdorf, as President of the
CFI, is a problem of managing the case load and he is looking
for ways of getting a manageable case load, which I can fully
understand, as President.
Q288 Chairman: We have just received
written evidence from the Commission which I think suggests that
the current rate of merger acquisitions challenges or reviews,
whatever you call them, is about seven a year?
Sir David Edward: Yes.
Q289 Chairman: Is that a significant
part of the CFI's workload?
Sir David Edward: The reason it is significant
is the need to find a rapporteur; to get that rapporteur
to drop everything else and devote his full time to this merger;
to find a composition of a court which will deal with it, and
which is able, likewise, to drop everything else to get on with
it and do it at high speed. That is the problem. Just going back
to what I said at the beginning, if the merger regulation could
include (which I believe it could) the creation of some kind of
independent body which would be required to be persuaded before
the prohibition of a merger went through, then I am not satisfied
that it would be necessary to create another court to deal with
it.
Q290 Chairman: But that would be a dramatic
transformation of the present process?
Sir David Edward: Indeed, but you could at least
do it for mergers because the merger regulation is a one-off situation
anyway.
Q291 Chairman: I see, so that would at
least allow you to, so to speak, narrow the scope of the problem
in terms of work overload?
Sir David Edward: Yes, in the Court, and in
so far as the complaint of industry is not so much about speed
but about quality.
Chairman: I see.
Q292 Lord Lester of Herne Hill: I can
understand the suggestion of some administrative way of dealing
with the merger regulation and access to justice problem. My question
is a rather person-in-the-street question, if you like, which
is why should we be giving priority to merger and acquisition
cases, apart from the administrative reform, by creating a special
piece of judicial machinery when all users of the European Court
of Justice and the CFI could make exactly the same plea about
the need for speed—speed of access, speed of determination—in
all their pressing cases? I gave an example to a previous witness
of collective agreements or gender discrimination, and one can
think of loads of other examples under the four freedoms. Is there
any special reason why mergers and acquisitions should be singled
out for this especially favourable treatment?
Sir David Edward: I think there is, in the sense
that from an economic point of view a merger can have a major
economic effect, for good or ill, and it is important that there
should be some form of control of mergers; and if there is to
be control of mergers there has to be some form of quality control
of the decisions. Therefore, I think there is a reason why mergers
should be looked at because of their economic importance. But
I do entirely agree with you that if it is then said that the
CFI, or funds, or judicial resources, should be devoted to mergers
in preference to, for example, Pillar III problems, which are
coming up fast (the judicial control of Pillar III problems),
Brussels II (children), even Brussels I (disputes about which
court has jurisdiction), and leave aside all the other internal
market issues, then in that sense I think one has to have a sense
of priority. In that context mergers do not assume quite the same
importance. That is why I am rather in favour of trying to attack
it at the level of first decision making rather than at the judicial
level.
Q293 Chairman: You have spoken about
the problem of the rules of procedure. I think we have outstanding
a request to some of our witnesses, I think it was the CCBE, who
were going to give us a list of those particular rules which they
thought most obstructive. Is that a possible exercise? I am not
asking you to do it, but could you identify certain specific rules
which you think are needlessly inhibiting the scope for fast track
procedures, case management generally?
Sir David Edward: Yes. I would need to take
time to go through it. It is rather more the structure of the
rules. The rules presuppose that you will have a written procedure
in a particular form and in which all the points must be raised
at the first stage and all relevant documents must be produced
at that stage. There is a number of straitjackets and handcuffs
which are put on the court. I know this from trying both in the
CFI and in the Court of Justice to be a case manager, and I found
it extremely difficult because part of the problem is that one
of the affected parties would tend to say, "No, no, no, but
I claim my right to have it done this way rather than that way."
It is not easy. The other problem is that it eliminates all possibility
of experiment with different procedures, which is exactly, of
course, so it seems to me, what the reforms in this country and
the procedure, for example, in the commercial court and in judicial
review have attempted to do, "Let's try a different way of
solving this problem".
Q294 Chairman: How many CFI chambers
are there?
Sir David Edward: There are 25 judges and the
President sits in one, but each of them is composed of more than
five judges, I think, but I am not sure.
Q295 Chairman: About four or five chambers?
Sir David Edward: About four or five, yes.
Q296 Chairman: Could one of them be for
a given period a chamber not necessarily to specialise in merger
acquisition cases but at least to have a lower workload for a
year or so to enable it then to fast track cases, whether they
be merger acquisitions or in other fields of Community law, which
are particularly deserving of an early decision?
Sir David Edward: I think, yes, this is possible.
Mind you, you cannot just say, "As from 1 January 2007, A,
B, C, D, E and F are going to do such-and-such for the next two
years", because they have got their existing load from 2006,
and when 2009 comes they are going to have another load and they
will not have finished their load from 2007-08. So there are problems
at each end of phasing. One can envisage, for example, that in
the British context you could do that with the Court of Appeal,
for example, but not when the time taken and the degree of preparation
of the case, the hearing and then the deliberation, takes as long
as it does. It is less easy to phase, I think.
Q297 Chairman: Are chambers, however
many they are composed of, fixed for a substantial period of time?
Sir David Edward: That is part of the juge
legal. The Court has to fix the composition of chambers.
Q298 Chairman: On a permanent basis?
Sir David Edward: I cannot remember how often.
I think the tendency is to fix them at the beginning of the mandate.
Q299 Chairman: And a mandate lasts for—
Sir David Edward: A judge's mandate is six years
and when you come in you are assigned to a chamber, so they tend
to be fixed.
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