Examination of Witnesses (Questions 362-379)
JUDGE BO
VESTERDORF, JUDGE
NICHOLAS FORWOOD,
JUDGE JOHN
COOKE AND
MR EMMANUEL
COULON
17 JANUARY 2007
Q362Chairman: Gentlemen, President, Judge Cooke,
Judge Forwood and Mr Coulon, welcome. Thank you all very much
for coming. I know that you, President, and you, Judge Forwood,
have appeared on earlier occasions before this or other sub-committees
and you know the way in which we proceed. For the others, the
proceedings are recorded, we are on air and you will get a copy
of the transcript and an opportunity to revise it and, if you
care to, to add to it. In the meantime it will be on the Web.
You have already had in advance warning of our proposed questions—there
will be supplementary ones—and I think you have also had
a copy of what by now has already become quite a considerable
body of both written and oral evidence. Of course, we also have
not merely the original CBI proposals, which I think you will
have had, but the President, Judge Vesterdorf's, letter to me
of 10 October last, which is a helpful part of the background
to our inquiry.[1]
Perhaps I could start by asking you whether, as a Court, the CFI
accepts the basic proposition that the CBI advances that there
is a need for some custom-built new EU Competition Court; in other
words, a new 225a creation of one or more panels to deal with
at least some competition cases?
Judge Vesterdorf: My Lord Chairman, members of the
Committee, thank you very much for the invitation to come here
today. Perhaps I should briefly introduce my colleagues. Judge
Cooke, our Irish judge who has been on the Court since 1996, Judge
Forwood, who you probably know, who has been on the Court since
December 1999 and our Registrar, Mr Coulon, who was elected Registrar
late 2005. As to your question, my Lord Chairman, when we received
this invitation to come to London to give evidence before the
Select Committee we decided that, of course, we had to have a
discussion in the Court on the various problems and questions
raised by the CBI document. We had such a discussion a few days
ago in preparation for this meeting. It should be said that what
we are about to say today during this meeting does not represent
any formal position of the CFI and, on top of that, we have not
discussed this type of question with the European Court of Justice,
the ECJ. So this is not a formal position, but an indication of
how the Court's members feel about the various suggestions and
proposals. I think, however, it transpired very clearly from the
discussions between the members of the Court a couple of days
ago that it is not the feeling that there is any immediate need
to set up a new judicial panel to deal with competition law and,
in particular, with merger cases; at least, not for the time being
and perhaps not for some years yet. The Court indeed finds that
it is up to the task before it; also as regards merger cases.
The so-called fast track procedure, the accelerated procedure,
which you have heard mentioned, has proven in our experience to
be a very useful instrument for the Court, and it has, particularly
as regards merger cases, allowed the Court to deal with and decide
these merger cases much more rapidly than is normally the case
for other cases heard by the Court, and I would tend to say—and
my colleagues would probably agree with me—probably as rapidly
as you could reasonably expect a court to deal with cases of such
complex character. We want, as you wish, to maintain a high level
of judicial quality in the work that we are doing. It is, however,
very clear that our Court has, over the last number of years considered
all proposals that are put to the Court from outside or from inside
regarding possible changes of our rules for procedure or of our
internal working methods and that it will continue to do so. So
that if useful proposals are made we will certainly look carefully
into such proposals, if they would allow us to further shorten
the time it takes to deal with or decide, in particular, merger
cases, which seem to be the only worry of the CBI, the time it
takes to deal with merger cases. That being said, I think we should
underline also that we regard our participation in this meeting
mainly as an opportunity for us to give this Committee precise
and correct and up-to-date information on the present situation
of the Court, and just also to clarify possible misunderstandings
in the submissions that have been submitted to the Committee.
We stand, therefore, quite ready and prepared to answer all your
questions and comment on the various ideas and proposals that
have been submitted to the Committee, and we are quite prepared
to answer all other questions that you may put to us. Your Lordship
mentioned the fact that I had sent a letter to you some months
ago regarding statistics. We have brought with us a complete update
of all these various statistics regarding the cases in general
before the Court, in particular the competition cases, and even
more particularly, regarding merger cases. These are not finalised
statistics; we are still only a couple of weeks into the New Year,
so, therefore, we are going to get some more information on the
precise numbers and statistics but we would prefer to give it
to you orally. I think that would be of assistance to the Committee
in understanding the problems that we face in the Court.
Q363 Chairman: That is very helpful and
I am sure we would be very glad to have the written record of
the up-to-date figures. I do not want to go through your letter
in any detail but amongst other matters you refer to, in very
round figures, that the competition cases overall represented
about 40 per cent of the CFI's real workload, about 20 per cent
of the total pending cases, but obviously case for case they are
heavier and more time consuming than the average other sort of
case. Is that still about the overall size of that part of your
work?
Judge Vesterdorf: That is still correct. The
very latest statistics and figures give us exactly those figures.
I think the precise figure in terms of numbers is 18.6 per cent
of the pending cases, which are competition cases, and that they
represent roughly something like 35 per cent to 40 per cent of
the actual real workload of the Court. That is still correct.
Q364 Chairman: As a whole is the CFI
regarded as overloaded? Is there a troubling backlog; is the backlog
increasing?
Judge Vesterdorf: Let me put it this way, your
Lordship. We have statistics of the general workload of the Court
available now and available, in effect, all the way back to the
establishment of the Court of First Instance. The figures for
2006 that we have just prepared show us that we have an increase,
the largest increase ever in the number of cases introduced to
the Court in 2006, representing a rise of 33 per cent over all
our cases.
Q365 Lord Clinton-Davis: Why?
Judge Vesterdorf: The answer is that the applicants
have wanted to go to the Court more often in many more case cases
than they did before. But I should perhaps underline that this
33 per cent increase is divided into two figures: one is 46 per
cent up as regards trademark cases, and if we look at all the
other cases taken together, there was a rise of about 25 per cent.
So for the trademark cases we see a very significant increase.
And the figure, of course, excludes staff cases because since
the beginning of 2006, we have not had any more staff cases.
Q366 Chairman: So that increase is despite
having in fact offloaded the staff cases?
Judge Vesterdorf: Yes.
Q367 Chairman: I am not sure that Judge
Forwood seems to be in agreement with that?
Judge Vesterdorf: The increase of 33 per cent
is an increase regarding the cases that fall under our competence
as it is now.
Q368 Chairman: I follow.
Judge Vesterdorf: That is excluding staff cases—staff
cases are out of the picture. This is an increase of 33 per cent
compared with the same type of competence in 2005.
Q369 Chairman: I follow that, but having
offloaded the staff cases how does that increase leave you in
net terms?
Judge Vesterdorf: That leaves us with almost
exactly the same number of new cases introduced in 2006 as in
2004 and 2005, including staff cases.
Q370 Chairman: So the offloading
of the staff cases has not actually improved your net position
because of the subsequent increase? It is as simple as that.
Judge Vesterdorf: You can say that the advantage
has been swallowed up by the increase in the number of other cases
introduced to the Court.
Q371 Chairman: Have there yet been any
appeals in any of the staff cases?
Judge Vesterdorf: We have, as of 1 January,
received ten appeal cases, and it should be taken into account
that the new Civil Service Court entered into function as of 1
January 2006 and started rendering their first judgments and orders
towards the middle of 2006, and we had ten appeals before 1 January
this year. That is not a very high figure because it is the running-
in year, so to speak, of the new Court. Nevertheless, it is ten
appeals, and we would expect in this year, 2007, from the figures
we have as between the Court of Justice and our own Court before
the transfer, that the number of appeals to our Court should be
up to about 20 per cent, and in fact the rate of appeals recently
was 22 per cent. That would mean that we would receive something
like 40 to 50 appeal cases—at least 40 appeal cases.
Q372 Chairman: Forty appeal cases.
Judge Vesterdorf: A year.
Q373 Chairman: Staff cases.
Judge Vesterdorf: Staff cases a year.
Q374 Chairman: Roughly what proportion
of your workload will that represent?
Judge Vesterdorf: If the workload at the end
of 2007, as we expect, would go up to around 480 new cases, or
perhaps 500 cases, that would be less than ten per cent.
Q375 Lord Jay of Ewelme: I was very struck
by the figure you gave for the increase in trademark cases, up
46 per cent in the year. Are there any special reasons behind
that, a particular explanation behind that; or is that something
which you expect to see increase exponentially from now on; or
is this a spike and then you will go back to something more normal
afterwards?
Judge Vesterdorf: Thank you very much for the
question. It is useful for us to give the answer. We had a meeting
in autumn last year with the new President of the Chambres des
Recours at the Trademark Office in Spain, and over lunch we discussed
what the prospects were, how things are going in the Trademark
Office. He informed us, first of all, that they now have four
appeal chambers within the office and they had strengthened procedures
considerably, and they are therefore expecting a considerable
increase in the number of cases decided by these Chambres des
Recours or appeal chambers in the Trademark Office, leading us
to expect that the increase that we have seen this year will not
be a one-off. Perhaps it will not be 46 per cent once again, but
we should expect—the actual figures are that we received
143 trademark cases last year—on the basis of our talk with
the President that the number might easily this year go up to
around 170 or something like that—perhaps a bit more, perhaps
a bit less. That is an increase that will continue.
Q376 Chairman: The Commission's evidence
was that trademark cases in any event are numerous and pretty
routine, and the suggestion is that if you are going to offload
another category of work on to newly created panels they are a
good candidate and altogether a better candidate than general
competition cases. Do you agree with that view?
Judge Vesterdorf: I think both myself and my
colleagues on the bench agree with that point of view, that this
is an area of law that is clearly distinguishable and can be wrapped
up and sent off to a new court whenever the workload for our Court
becomes such that we cannot deal with all the cases. Therefore,
I think there is a general agreement between our colleagues that
that is particularly correct.
Q377 Chairman: Do you see any great problem
ahead in terms of achieving that?
Judge Vesterdorf: I should not think so. Seven
years ago there was a body established called the Comite de Reflexion
which was set up by the European Commission in 1999 and which
was composed of a former President of the Court of Justice and
a number of former judges of the Court of Justice and my own Court,
to discuss the future development and structure of the courts
in Luxembourg. They proposed the introduction of the new legal
basis for setting up the judicial panels and proposed three specific
candidates: future candidates for areas of law that could be sent
or shipped off to a new judicial panel. The first was civil service
cases, and that has been done. Secondly, trademark cases or industrial
property rights cases—we only have trademark cases in fact,
so that has been foreseen and it is also clearly, from our point
of view, something that probably ought to be done rather quickly
because we know it takes time before it really gets established,
but that is certainly something that probably would much more
easily come about.
Q378 Chairman: So really that could be
the next priority, rather than competition work, for the creation
of new panels, is that right?
Judge Vesterdorf: Probably, yes.
Q379 Lord Borrie: Could you state the
substantive reasons why the Court of First Instance would prefer
to offload, for example, trademark cases rather than competition
cases and whether merger cases alone or more broadly?
Judge Vesterdorf: I shall pick my words carefully
now, but I think it could be put like this. You know of course
that our Court was set up in 1989 as a Court intended to deal
specifically with competition cases, and the Court of Justice
had difficulties in dealing with those cases. Therefore, our Court
was set up to deal specifically with these cases and civil service
cases. It is therefore perhaps no wonder that the majority of
the members of the Court still have a certain high degree of affinity
for this kind of work and we have felt that we have been doing
a reasonably good job in that respect. Secondly, the trademark
area of law is, as I said before, an area of law which is very
specific, in which the cases do not normally touch on general
principles of community law, but is a specific type of law and
questions of law. On top of that, it can be clearly distinguished
from all other areas of law and is therefore, something that should
not present major problems in being shipped off to a new court.
Chairman: Given that you were, as you say, set
up in 1989 specifically above all to deal with competition cases,
it would be something of an irony that, because you have become
so busy, those were the ones you were going to lose. You mentioned
staff cases and trademark cases and you did actually say the Comite
des Reflexion mentioned three candidates.
Judge Vesterdorf: The third category was competition
cases. They mentioned that as the third possible candidate for
shipping off at some point in time to a judicial panel. But they
did it in a more circumscribed way in saying that it should probably
also at some point in time be considered whether competition cases
could be shipped off to a judicial panel. So they were not quite
as adamant as they were about civil service cases and trademark
cases.
1 Not printed in this Report. Back
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