Examination of Witness (Questions 300-319)
Sir David Edward QC
13 DECEMBER 2006
Q300 Chairman: This rigid rule simply
says that if a case comes in on a Tuesday it goes to one and if
it comes in on a Wednesday, or whatever it is, it goes to another?
Sir David Edward: It is extremely complicated,
but there is a list—it is published in the official journal—of
judges in a rather peculiar order; you start in the middle and
then work out. Then you fix the composition of the chamber by
the date when the decision has been taken as to which formation
will hear the case. So if it is a chamber of five, there is a
table which says which of the eight judges forming the chamber
will actually hear that case, and it is extremely rigid.
Q301 Lord Lester of Herne Hill: In the
Strasbourg procedure there are fast track discretions built in
if you are about to be killed, or tortured, or die, or not die
when you want to die. All of those are examples where the Strasbourg
Court will expedite the procedure and can do it extremely quickly.
Forgive my ignorance, but are there not similar discretionary
powers in Luxembourg as well of a wide kind to be able to give
exceptional acceleration with truncated procedures?
Sir David Edward: There is a fast track procedure
in the Court of First Instance and they are introducing a fast
track procedure for references in the Court of Justice, but the
problem is that it is only fast track within limits. The other
aspect, of course, is that in Strasbourg there are only the two
working languages, though obviously documents come in in other
languages, but there is not the same language tapestry to be coped
with.
Q302 Lord Lester of Herne Hill: But there
are 80,000 pending cases and they are working in more than 25
languages, and yet they can, if they want to, bring a case on
within four weeks?
Sir David Edward: Yes, but what is the case
about? It is an individual against one or more Member States.
A merger problem is not one individual against a Member State,
it is probably two or more major corporations against the Commission
on an issue of an administrative decision on a highly complex
issue raising economic and possibly social issues of a quite different
dimension. I think that is why it differs.
Q303 Lord Leach of Fairford: Have many
mergers actually failed for reasons of delay?
Sir David Edward: There seems to be an issue
in the evidence about that.
Q304 Chairman: We were told that since
1995, 19 have been blocked, 10 were appealed, four of the appeals
succeeded, but none of the 19 in the event went ahead, not even
the four which were successfully appealed.
Sir David Edward: Except the Tetra Pak
one, and that, as I think Dr Bishop explained, is because Tetra
Pak is a private company and therefore the private owners were
prepared to take the risk of proceeding with the merger even if
there was a risk.
Q305 Chairman: So Tetra Laval
went ahead?
Sir David Edward: Tetra Laval went ahead,
but that was exceptional.
Q306 Chairman: Quite, and that was despite
the Commission actually then trying unsuccessfully to take it
on appeal to the ECJ?
Sir David Edward: Yes.
Q307 Chairman: Assuming the suggestion
you began with, that there should be some other decision making
body rather than the Commission as presently, and the matter does
go, as now, to review or appeal, whatever you call it, and assume
it is indeed to an existing chamber. Should there be a right in
the chamber itself to take any fresh decision rather than simply
remit the case with all the additional delay that a remission
would occasion?
Sir David Edward: I think the parallel is the
right of the Court of Justice to take the final decision on an
appeal from the CFI. Normally, the Court of Justice on an appeal
quashes the judgment of the CFI and remits to the CFI to think
again. But the Court can, in certain circumstances, quash the
CFI decision and take the final decision itself. In German administrative
procedure there is the possibility that the Administrative Court
takes the decision itself. It finds that there has been a fundamental
flaw in the administrative decision and the Administrative Court
substitutes its own decision. It seems to me that within limits
that would be an intelligent power because in many cases—I
do not know in merger cases, but in many cases the effect of quashing
the decision is that it will be a matter for the Commission simply
to say, "We are not going to take another decision".
Q308 Chairman: Assuming that their block
on the merger has been quashed, how can they then decline to take
a further decision, or what is the effect of failing to take a
further decision?
Sir David Edward: The problem is that in certain
cases the decision of the Court quashing the decision effectively
determines the result of the case, but strictly speaking it has
to go back to the Commission to decide what to do about it.
Q309 Chairman: I see. All you are really
saying is that having suffered a bloody nose, the Commission says,
"Okay, let it go ahead?"
Sir David Edward: Yes.
Q310 Chairman: I am sorry, I had not
appreciated what the consequence of that was. But do they, having
had their first blocking decision quashed by the CFI, ever then
embark upon a fresh decision in your experience?
Sir David Edward: I do not know enough about
what they have done. There have been extremely few cases where
this has occurred. It is just a suggestion that at least it would
provide finality in a circumstance where finality can be provided.
Q311 Lord Bowness: This question probably
tells you that I have not practised before the ECJ or the CFI,
but how would giving them the power to quash speed it up? Would
not somebody want to be able to put the case? Would we not be
moving back?
Sir David Edward: No, sorry, they always have
the power to quash. The question is whether they have the power,
having quashed, to take the substantive decision because the theory
is like judicial review. If you go to judicial review in the High
Court against a decision of a local authority, strictly speaking
all you can do is quash the decision of the local authority and
then it goes back to the local authority to decide what to do,
whereas in German administrative procedure the Administrative
Court can take the decision.
Q312 Lord Lester of Herne Hill: I doubt
whether you are aware of this, but at this very moment in the
Moses room in our new Tribunals Bill the Government is introducing
precisely such an idea that where only one result could reasonably
follow from a quashing decision, the court or tribunal should
be able to take that decision itself rather than remitting it.
Am I right in thinking that is what you have in mind, that where
it is a virtual certainty where only one thing can result it is
pointless to have a further stage; you should be able to deal
with it yourself?
Sir David Edward: It produces finality more
quickly.
Q313 Chairman: I wonder, is that actually
all you are looking for? As Lord Lester rightly says, the only
power that would be conferred by the proposed legislation here
is if the tribunal was to say to itself, "There is only one
possible answer and anything else would be completely outrageous",
and then it could impose that particular solution, but I rather
thought that you or others have contemplated that they should
re-take the decision, even if there may be more than one view
open? It should be their view of events which counts?
Sir David Edward: There are various possibilities.
One is the simple possibility that you take the decision if there
is only one possible decision.
Q314 Chairman: That is not a difficult
one.
Sir David Edward: But let us assume that the
Commission declares a merger permissible on condition of divestiture
of one particular element in the undertaking. If that was the
subject of attack, then it would not simply be a matter of taking
the obvious decision, but simply saying, "The merger can
go ahead and that condition will not apply". There are various
stages in this which you could think of.
Q315 Chairman: Would it be taking the
decision as a matter of fact, that that condition simply was not
on any view justified, or would it be saying, "They didn't
have regard to this, that or the other material consideration
which might have borne upon whether it was an appropriate condition
to impose?" What intensity of review are we looking at here?
Sir David Edward: This is part of the problem,
I think, about the CBI proposal for the creation of a competition
court, because they do not address the question of intensity of
review.
Q316 Chairman: Quite. Can we just move
on to the last group of questions we wish to put to you, which
are about composition and location. Does location matter greatly?
Sir David Edward: There is a technical question.
According to the decision taken at the time of Maastricht, the
Court of Justice and the Court of First Instance must be in Luxembourg,
but the Luxembourg Government maintains that an earlier decision
in 1965 is still valid which requires that all judicial and quasi-judicial
bodies must be located in Luxembourg, and they have a specific
reservation to the declaration of Maastricht. So there would be
an argument about that.
Q317 Chairman: I am not sure we want
to devote too much time to that.
Sir David Edward: No, but from my personal experience
I am bound to say it was an advantage to be in Luxembourg rather
than in Brussels for the judicial function because I think it
is better than you are out of the political village.
Q318 Chairman: I follow that. Whether
there are any additional judges or whether there are additional
panels under 225A, or additional chambers of the existing CFI,
what about who should be on these various courts? Is there room
to have as judges non-lawyers, economists, businessmen?
Sir David Edward: The existing rule is that
the person must be qualified for appointment to judicial office
in the Member State from which he or she comes. That does not
necessarily mean that they are lawyers, or certainly not a lawyer
in our terms. For example, when I went to the Court of Justice
the French judge, Fernand Grevisse, was a conseiller d'Etat
in France but he was not a lawyer in the sense of having a law
degree or a professional qualification, and one of the early judges
on the Court of Justice was an economist.
Q319 Chairman: So you do not see any
actual bar to it?
Sir David Edward: As long as they are qualified,
and this is why Frederic Jenny—
| 
