Examination of Witness (Questions 320-332)
Sir David Edward QC
13 DECEMBER 2006
Q320 Chairman: He is qualified?
Sir David Edward: He is qualified because in
France there is no rule which says you must be a lawyer to be
a judge of the Cour de Cassation.
Q321 Chairman: I follow, but do you think,
as a matter of fact, it is a good idea? Would you welcome it?
Sir David Edward: I think we go back to this
question of generalists against specialists. Economists can be
as doctrinaire as anybody else and of course it would depend upon
who the economist was, because the tendency of those who promote
this idea is that they look for free market economists, but you
would not necessarily get free market economists.
Q322 Lord Jay of Ewelme: You would not
exclude the right kind of economist?
Sir David Edward: You might get a full Colbertiste.
Lord Jay of Ewelme: You might, but you
might get a liberal minded economist.
Q323 Lord Lester of Herne Hill: Professor
Basil Yamey.
Sir David Edward: Yes. I think it is
much easier to say, "Oh, wouldn't it be great", than
actually to make sure that you have got the result that you want
from it, if that is what you want.
Q324 Chairman: Short of them becoming
actual judges on whatever the tribunal may be, do you see any
useful deployment of them either as assistant rapporteurs
or in other such capacities, assessors?
Sir David Edward: I think there can be, certainly
as assessors, and again I go back to my point that if you had
another body at the decision making stage rather than at the appeal
stage, then you could certainly involve other people rather in
the way that the CAT and the old Restrictive Practices Court did,
and I do not see why not.
Q325 Chairman: Can we look at what should
happen to the CFI, assuming that it has less work, and let us
assume that it does not really matter whether it is because of
the creation of judicial panels or fresh chambers, or because
they are shunting off their trademark work. Let us pretend they
have more time than at the moment they need for their existing
workload. Yes or no, would it be a good idea that they should
hear preliminary references from the national court applying Community
competition law?
Sir David Edward: My answer to that is, provided
it was limited to questions from national courts related exclusively
to the interpretation and application of Articles 81 and 82. That
is, in my experience, relatively rare.
Q326 Chairman: And it would not have
happened in the case of Crehan?
Sir David Edward: Courage v Crehan. No,
it would not.
Q327 Chairman: Because really it was
not that sort of a question?
Sir David Edward: That is my difficulty. They
do not come in nice little boxes. I would have to say there is
clearly an argument for saying that the Court of Justice should
not be the sole court which deals with preliminary references.
For example, another field in which preliminary references might
go to the CFI would be the interpretation of the Social Security
Regulations.
Q328 Chairman: Yes, I see. I am not sure,
when we reach the final question that we had in mind to ask, concerning
an "interim solution" that it is a particularly apt
question for you, because I am not sure you see any present problem?
Sir David Edward: It is not to say I do not
see a problem, it is just that I do not know that this is the
solution to it. I believe that the interim solution lies in something
which could be done within the context of the merger regulation,
requiring an order of prohibition to be vetted by somebody other
than the staff of the Commission itself.
Q329 Chairman: But that is a long-term
solution as well as an interim solution?
Sir David Edward: It could be. Experience would
show whether it was a good one, but I do not see why it could
not be done within the context of the existing regulation.
Q330 Chairman: I had not sufficiently
spotted that, but I think it is to be found in your original—
Sir David Edward: No, it is something which
came to me really from reading the evidence, but I did mention
it in 1.4.
Q331 Chairman: Exactly, and others have
run with that, I think, including Temple Lang?
Sir David Edward: Yes, very much. We are both
singing from the same hymn sheet in that respect.
Q332 Chairman: Unless any other Member
of the Committee has any question for you, I think that brings
this to an end, and it remains for me just to thank you very much
indeed, Sir David, for coming and giving us a huge amount of assistance.
Nobody is better placed really to give us insights into the nature
and solution of the problem. Thank you very much indeed.
Sir David Edward: Thank you very much. As always,
it is a pleasure to appear before this Committee.
| 
