Examination of Witnesses (Questions 400-419)
JUDGE BO
VESTERDORF, JUDGE
NICHOLAS FORWOOD,
JUDGE JOHN
COOKE AND
MR EMMANUEL
COULON
17 JANUARY 2007
Q400 Baroness Kingsmill: I have to say,
I think that is quite an important one, because how much time
do you think that that then takes out of the judicial year for
consideration of these cases? It sounds like quite a lot?
Judge Cooke: It can be quite a lot, yes. If
you take the practical situation now, we have two chambers and
we have ten reporting judges between those two chambers and while
they can continue to work, those judges who are not being renewed
or have been told they will be renewed, and you have two Presidents
retiring, then you have a necessary postponement of possible hearings
in cases.
Q401 Chairman: I follow that. It sounds
a relatively unusual event that you are going to have two Presidents
not returning.
Judge Cooke: I should say, there is to some
extent a compensating factor in that, once you know certain judges
are leaving, there is an acceleration in the priority given to
the work that is already in that chamber in order to ensure that
it is dealt with, but it is the planning of hearings from a certain
point onwards that tends to have this depressing effect on the
momentum of a chamber's work.
Q402 Chairman: Would that sort of hiccup
not be taken into account in the allocation of fast-track cases?
Judge Vesterdorf: It is one of the elements,
of course, that plays a role and if I have to give a chamber a
fast-track case, I need to avoid a chamber which has that sort
of problem.
Q403 Chairman: Quite.
Judge Vesterdorf: One should underline, in supplementing
Judge Cooke, that this is not something which we can change, it
follows from the Treaty and there is no way we can do it, and
it is made even worse by the fact that quite often—which
has, of course, been of a certain kind of interest to us—quite
a number of the judges from our own Court have been recruited
in between renewals to go up to the Court of Justice. Last year
we had three judges, in fact, leaving our Court to go to the Court
of Justice and that is in between the ordinary three-year periods,
so for two years we will be running into these kinds of problems
which are of a very practical character and have some impact on
other work.
Q404 Chairman: Could I check, are merger
cases the only ones in which you operate this fast-track system?
What proportion of fast-track cases do merger cases represent?
I am sorry, I think the answer is clear because you told us of
28 fast-track applications 17 were mergers, but are the rest competition
cases?
Judge Cooke: No. I have done a number, certainly
one United Kingdom case on the greenhouse gas emissions regulation.
In my experience, one of the crucial factors is, as I think Judge
Forwood was saying, the accelerated procedure is only effective
if very close to the outset of the case, the reporting judge can
be confident that taking this sort of short cut is going to work.
You have got to remember that we are getting in cases from more
than 27 different jurisdictions with different legal systems,
lawyers who have different practices and lawyers who may not be
familiar with our practice. One of the crucial functions of our
system is the report for the hearing, that is, as you know, the
reporting judge's analysis of what is at issue in the case, and
sometimes we have to use the writing of the report for the hearing
in an attempt to impose a discipline on the case. We send it out
to the lawyers before the hearing and they are invited to comment
upon it. But if they agree the report for the hearing, then it
becomes the agreed framework for us to analyse and decide the
case. In that sense, the crucial step in treating the accelerated
hearing is convincing the lawyer—in merger cases it is not
too difficult because they are usually specialists who are familiar
with the Court, but in other cases it may not be so—and
you have got to have confidence that they are going to co-operate
throughout the case if you say, "Look, so far as the Court
can see, it is grounds one, five and nine that are important in
this case, do you agree? Can we leave aside the others?"
You have got to get that assurance of co-operation at the beginning,
otherwise you may close the written procedure and suddenly find
you have all sorts of problems springing up that delay matters.
Q405 Lord Mance: I do not want to
become embedded in the general point about length of tenure which
is a much wider-ranging and important issue that Judge Cooke has
raised, but one follow-up question on a more detailed aspect of
it is if a case is not finished before the retirement of a judge,
what does that mean? As I understand it, the judge cannot return
on an ad hoc basis for that case. I do not know how difficult
it would be to change that and, assuming he cannot return, surely
the rest of the panel can go on to issue a decision, can they
not?
Judge Vesterdorf: When the case is being heard
by a five-man chamber the quorum in such a chamber is three judges,
that means if one is leaving and we cannot get the judgment out
before, the remaining three judges can hand down the judgment.
The problem is that by far the large majority of our cases are
dealt with by three-man chambers and if one is leaving then it
does not work, which is why we have either to stop the proceeding
and get on with other cases or we have to speed it up considerably
so that we can make sure that those three persons are still in
the Court and can render the judgment. In fact, 81 per cent of
all our cases are decided by three-man chambers.
Q406 Lord Jay of Ewelme: Why can
two not decide?
Judge Vesterdorf: Our Rules of Procedure are
such that there must be at least three judges.
Q407 Lord Jay of Ewelme: Are those
rules of procedure which would be in your power to change?
Judge Vesterdorf: They cannot be changed.
Q408 Baroness Kingsmill: On a similar
but slightly different point, some of the people who have appeared
before us have suggested that an advantage of a new competition
court would be the possibility of introducing judges who are not
lawyers. Do you see that there is any merit in that at all, given
that the nature of competition cases does involve a great deal
of economics?
Judge Vesterdorf: I would like to hand the floor
to Judge Cooke on that one, but one brief comment in that respect.
So far, the vast majority—indeed practically all—judges
in both courts, and now all three courts, have always been lawyers.
We have had at the Court of Justice people who have not had what
you would call "a traditional law education", people
from the Conseil d'E«tat in France, who have been appointed
to the Court of Justice, and we have indeed such a French judge
in our Court,[2]
but I think—not only think but I know—that in practice
in all other Member States they appoint lawyers to the Court.
It would seem normally from the ordinary reading of the Treaty
that people who are expected to exercise high judicial office—
Q409Baroness Kingsmill: Are capable of—
Judge Vesterdorf:—are lawyers and thus
capable of doing that which would normally be expected by lawyers,
but Judge Cooke would have a comment on that, I expect.
Q410 Lord Jay of Ewelme: We do not
all quite share that view.
Judge Vesterdorf: No, of course.
Judge Cooke: It is important to bear in mind
that what we are called upon to do under the Treaty in the Statute
of the Court is what you would call "judicial review".
In competition cases, what we have before us is a decision of
the European Commission either allowing or prohibiting a merger,
imposing fines or finding infringements of Articles 81 and 82.
In a sense, the specialised economic decision has already been
made in the contentious procedure before the Commission and, unlike
trademark and staff cases, which are a discrete area of secondary
legislation with their own distinct, pre-contentious procedures,
what we are being asked to do in competition cases is to apply
the primary law of the Treaty, Articles 81 and 82, to the decisions
of the European Commission. Has the European Commission, in making
this decision, correctly applied 81 and 82; has it misused its
powers; has it made manifest errors in its assessment? Of course,
the judges have to have an understanding of economics and most
of the judges will have a good understanding of the economic principles
that are involved, but we are judging the legality of decisions
in accordance with the articles of the Treaty and general principles
of Community law. In competition cases, particularly, many of
the grounds that are invariably raised are based upon general
principles: has access to the file been properly allowed; has
there been discriminatory treatment of one of the parties; have
the rights of defence, as they are called, been properly respected?
It is important, I think, to bear in mind that it is judicial
review which we are called upon to exercise.
Q411 Chairman: What about the scope for
using economists, accountants and so forth otherwise and directly
as judges? Do you see a role for them as assistant rapporteurs?
Apparently, that is envisaged for scientists in the proposed EU
patent court.
Judge Cooke: That possibility already exists,
assistant rapporteurs are provided for under Article 13 of the
Statute of the Court and in Article 65, I think, of our Rules
of Procedure. Under "Measures of Inquiry" we have the
possibility of appointing experts ad hoc for specific cases.
In point of fact, it has been very rarely used. I remember some
years ago, there was a period of time when we had an in-house
economist on the staff of the Court. The idea was that reporting
judges dealing with complex competition issues could consult the
economist and get a view. In fact, it was very little used because
many of the colleagues, particularly the continental colleagues,
were very nervous about consulting outside the knowledge of the
parties. There was doubt because in judicial review we are judging
the legality of the Commission's decision as of the date it was
taken and in accordance with the facts and arguments before the
Commission at the time. There was something of a reticence amongst
one's continental colleagues to introduce into the case file material
which was not part of the Commission's case file. I think I am
correct in saying it sort of withered away as an approach.
Judge Vesterdorf: At the end of the contract
of this economist we made a survey among all the judges of the
two courts to ask, "How many times have you effectively used
this economist?" Once we got the answers, there was one question:
"What has he been paid for over six years?" and, unfortunately,
that was the reality of the thing, then the contract was ended
and that was it.
Chairman: I understand.
Q412 Baroness Kingsmill: That may
say more about the nature of judges than it does about the nature
of economists.
Judge Vesterdorf: Maybe so, but it should be
pointed out that whilst only very exceptionally we have appointed
our own economic experts to assist the Court, in fact to my knowledge,
it has only been done once by the ECJ a number of years ago, the
reason why is that the parties to the case to a very large extent
present us with economic evidence from distinguished professors
from all over the world, of course appointed by one party but
then the other party will appoint their own experts to tell us
why the first one is wrong and on which point they are wrong.
We can examine, and we do actively put questions to those experts
during the hearing to test their thesis and reasoning and see
if they are on top of it, if they have got the facts right, before
they pronounce themselves on the economics of the case.
Q413 Chairman: Judge Cooke has just described
a very conventional, strict approach to judicial review, as a
judge here would recognise. That is linked really with the question,
would you welcome wider powers to engage in further factual analysis
in re-hearing cases with a view to adopting a decision yourself?
If you take the narrow, conventional approach to judicial review,
at the end of the day the decision either stands or falls, but
on the face of it you are not in a position to re-take that decision,
you can only remit it, as currently we are given to understand
that you would do if you quashed it?
Judge Vesterdorf: This is a question of some
interest, of course, and it is a question that has been put very
often in discussions at conferences, colloquia and seminars in
the competition world, many parties claiming that it would be
beneficial to the whole procedure if the Court could take the
final decision once the case comes before the Court. That is not
possible under the Treaty, it is as simple as that, it cannot
be done and, therefore, the only way it could be changed is if
Member States were willing to accept that the institutional balance,
which has been set up carefully under the Treaty, allowing the
Commission as a quasi-administrative political body to take those
decisions, that specific power should be taken away and given
to judges. If it were to be given to judges, then the judges would
have to have broader powers of an investigatory character, but
that is not of actuality because it cannot be done, and I fail
to see Member States accepting that as a change.
Q414 Chairman: It would need a Treaty
change and it would probably involve longer hearings by you because
you would then have to be in a position to take a factual decision
yourselves, those would be the downsides, but the benefit, I suppose,
would be at least where you are going to be quashing the Commission
decision, you do not then have to send it back to them for re-determination
and you save the time consumed by that further process?
Judge Vesterdorf: That is correct, but perhaps
it should also be mentioned that these days, and over the last
couple of years, a large majority have been competition cases
coming before our Court, in particular cases in which there has
been a fine imposed on the companies in question, Article 81 cases.
In that particular area, the Court has a specific power, which
we call "pleine juridiction", meaning that, once
it has checked and verified if the Commission has followed and
applied the law correctly and assessed the facts correctly, fines
is the question which occupies the Court far more than other parts
of the decisions of the Commission. In reality, most of the cases
nowadays primarily concern the fine, should there be a fine, if
yes, what is the correct amount of the fine? There, we have in
principle a complete free hand and we can take the final decision
and we do take the final decision on that issue.
Chairman: I see.
Q415 Lord Borrie: Going back to Judge
Cooke's point which, for the purposes of discussion, I fully accept
that certainly at this present time the Court is solely concerned
with judicial review of the Commission's decision for or against
a merger, but judicial review must include, surely, the consideration
sometimes of whether or not the economic arguments before the
Commission have been adequately considered, or ignored, and that
economic arguments are bound to be part of the case for judicial
review and part of the consideration by the judges of the Court?
On that basis, why, especially if the Court is a five-person court,
would it not be helpful, certainly not undesirable, that one of
the five might have a background of being an economist rather
than a lawyer?
Judge Cooke: It is, I suppose, at the end of
the day a policy decision. In reply to the question put by Baroness
Kingsmill, I was merely seeking to underline the distinction between
judicial review, as it stands (and you are perfectly correct in
the way you described it) and the danger of substituting another
view for that of the Commission. Provided that the economist was
alive to the need to respect that principle, it is possibly in
theory correct to say that economists could contribute, but, again,
we are bound by the provisions of the Statute and the Treaty as
regards the nominations that are made to the Court.
Judge Vesterdorf: I think Judge Forwood, if
you would allow, would like to add some comments on that specific
question.
Judge Forwood: Of course, whereas the Court's
review of questions of fact is a full review, the nature of the
review of the economic conclusions of the Commission, assuming
that the factual basis for those conclusions is properly established,
is in some ways parallel to the situation of the Court of Appeal
in reviewing a finding of fact by the trial judge, that is to
say, "Well, we might have come to a different conclusion,
but has the trial judge really got it so wrong that we ought to
interfere?" In other words, it is never the first assessment
but rather saying, "Is that within the range of reasonable
choices that could be made and, in this context, is this a reasonable
economic assessment that could be made having regard to the facts
available?" Therefore, we are looking at the evidence rather
than trying to make our own first analysis of what the right economic
assessment should be. I think that is reflected in the Treaty
balance, as has been explained, and in the way the division of
functions has been set up. More generally, of course, in that
exercise it would be very nice to have economists amongst our
members, but one has to remember that the members of the Court
have a lot of cases to deal with, not all of which involve that
sort of economic balancing exercise. I think the risk would be
of adding to the team of judges those who, perhaps, were less
experienced and able to deal with the ordinary gamut of cases
which tend to involve that.
Q416 Baroness Kingsmill: I take that
point entirely and I come back to the reason why we are all here
today, the CBI's concern about the delays and their solution being
a new court. I am simply trying to elicit from you whether or
not some of the things which they suggest might help would, in
your view, help. It does seem to me though that you feel this
is very much the preserve of legally-qualified judges and that
really this is not something which would improve the expedition
of these cases if there were maybe a wider range of qualified
people who were capable of being judges.
Judge Forwood: Yes, that is broadly the point.
There are, I think, other factors which, in due course, may well
point strongly in favour of a specialised competition court, but
I would say that the ability to have economists as members of
it is probably not going to be one of the major driving forces
for it when eventually it may come about.
Q417 Chairman: Could we pass on to one
loose aspect of this. Large cartel cases, we understand, represent
a significant part of the overall workload which you have in the
field of competition and very often you get appeals against the
fines. One of the Commission's submissions, as you may have seen,
is that one could introduce some scheme of plea-bargaining and
that way rid you at least of some part of the workload. Would
you welcome that?
Judge Vesterdorf: Yes, clearly. If it would
mean fewer cases brought to the Court because there has been successful
plea-bargaining, from our point of view that would be perfectly
fine. As a judge in the Court being overloaded, if cases are solved
in that way so much the better.
Q418 Chairman: You would be pretty happy
with anything that offloaded almost any part of your workload?
Judge Vesterdorf: As long as the rights of the
parties are not trod underfoot by the Commission, are respected
and well taken care of.
Q419 Chairman: What about receiving other
areas of work yourself, do you know whether the Court is considering
asking you to take on any further areas of work?
Judge Vesterdorf: I do not think that is a question
for the time being, but you should know that, I think it was in
2005, the Court handed down to us another part of competence,
namely the cases introduced by Member States against the Commission,
and in certain cases even against the Council, and that is an
extra workload. Numerically it is not that much, but some of these
cases are complicated and important for the Member States, of
course. I think in numbers, last year we are talking about something
like 30 to 40 cases introduced by Member States and that is another
thing to put in the basket. Of course, it is very interesting
and we are delighted to deal with that also.
2 Note by Witness: The reference to the Conseil
d'e«tat and the French judge was in error. Back
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