Examination of Witnesses (Questions 420-431)
JUDGE BO
VESTERDORF, JUDGE
NICHOLAS FORWOOD,
JUDGE JOHN
COOKE AND
MR EMMANUEL
COULON
17 JANUARY 2007
Q420 Chairman: Put in whose basket at
the moment, the Court's or yours?
Judge Vesterdorf: The Court of Justice, with
the acceptance of governments, has sent that competence to this
Court, our Court.
Q421 Chairman: I see. Are these complaints
by Member States against Community institutions across a wide
field?
Judge Vesterdorf: No, those are cases introduced
by Member States against primarily the Commission but in any area
of law in which the Commission can take decisions or legal acts
that affect the rights of Member States.
Q422 Chairman: So you are not, as I would
apprehend, looking for extra work by way of taking preliminary
references?
Judge Vesterdorf: I think it should be said
that, if we talk about preliminary references, in particular in
regard to competition cases, that would be only logical if our
own Court were to be the appeal court. As the Court of Justice
is now, the appeal court and it is quite logical that the appeal
court hears the reference cases from national courts. If our Court
were to become, after a possible creation of a new competition
court, the appeal court it would be, as pointed out in certain
submissions, quite logical that we should deal with those cases.
Perhaps I should add, the number of references regarding only
competition cases before the Court of Justice, which is the competent
court today, is extremely low. The figures tell us it is about
two to three per cent of the cases.
Q423 Chairman: I see.
Judge Vesterdorf: As a matter of fact, last
year the Court of Justice received seven references on competition
law, in one year it only received one and the highest number over
the last five-year period was 15 references and that was in 2001.
That represents two to three per cent of their caseload regarding
references so it is not a major problem numerically but, of course,
as indicated in some of the submissions, you must recognise that
certain of the references concern at one and the same time competition
law and perhaps other areas of central Community law, like free
movement of capital, goods or other things. Therefore, it might,
in certain of these cases, be a question of who should deal with
that sort of case.
Q424 Lord Mance: I want to follow
up a point you made about specialised chambers, which you discounted
in respect of merger cases on the basis that they were a very
small part of the work, but I think you described today some blocks
of your work and the substantially expanding trademark block.
I have not got a figure down for the percentage of the overall,
but competition, I think you said, was 40 per cent of the area
overall.
Judge Vesterdorf: The overall workload, but
not numerically.
Q425 Lord Mance: Then you described
claims by Member States against the Commission coming in, I think,
somewhere approaching ten per cent of those figures or perhaps
a bit closer to that.
Judge Vesterdorf: Closer to that, yes.
Q426 Lord Mance: To what extent is
there scope for some system of specialised chambers within the
Court? I know this is not always welcome to judges and I know
that in some courts, like the German Supreme Court, it is absolutely
invariable, but I wondered whether you thought that might be a
way forward, a possibility?
Judge Vesterdorf: Lord Mance, one of the things
that has often been mentioned in submissions to you is the desirability
to have a high degree of flexibility for the internal workings
of the Court. Once you set down a chamber to deal with specific
cases, you take away some of the flexibility that exists right
now, meaning that chamber cannot deal with other cases even if
it is under-employed for the time being, and in other cases other
chambers cannot deal with that type of case because there is too
much work in the specialised area. It takes away a certain degree
of flexibility. I should add, of course, when I attribute cases
to the chambers, it is in principle according to one after another,
so to speak, but I do take due care of the workload of the individual
judges, of the individual chambers and also of the expertise of
any given chamber. If we have a case which is particularly urgent
or important, if I have a chamber in which there are three completely
new judges and they have never done such a case before it might
be preferable to hand it over to one of the judges or one of the
chambers that has been doing that sort of case more often. There
is certain flexibility even within the juge le«gal.
I still have to be very careful with the juge le«gal,
but, nevertheless, there is a degree of flexibility which we should
maintain and not hinder by way of creating fixed chambers for
fixed cases.
Judge Cooke: Could I mention something because
it comes back to something you mentioned, my Lord Chairman; the
concept of the juge le«gal. I think since their foundation
both the Court of Justice and the Court of First Instance have
been very conscious internally of the need to avoid putting at
risk the confidence of the public in the impartiality of the administration
of justice at Community level precisely because we are a jurisdiction
made up now of 27 judges from 27 Member States with differing
backgrounds. When one is considering the possibility of a specialised
chamber or a specialised panel with a fixed, limited number of
judges, one of the considerations that should be borne in mind
is, what consequence would that have at Community level from the
public point of view if, for example, in a mergers case you have
one of these big mergers with two national champions on either
side and the Member State that has a big interest in one of these
national champions feels it is not represented on that specialised
chamber because of the way in which the rotation of judges has
occurred? Although, as President Vesterdorf has said, there is
no strict rule about juge le«gal, it has always been
an important consideration to ensure that in the allocation of
cases there is no manipulation of the allocation in a way that
could incur any criticism from the point of view of national sensibilities.
Q427 Chairman: As I understand it, you
will not necessarily get a judge representative of the particular
national interest, it is sheer chance, sometimes you will, sometimes
you will not, quite unlike Strasbourg where, of course, the Court
is required to have a representative judge of the state against
whom the complaint is made.
Judge Vesterdorf: The criteria under which we
attribute cases to the various chambers must, under our Rules
of Procedure, be published every year in the official journal,
setting out under which criteria that type of case goes to the
chambers. We have split the cases up into three types: competition
cases, state aid cases and anti-dumping cases in one group; we
have trademark cases in another group; and the bulk of the rest
in a third group. Within these three groups we have a specific
rota which is the point of departure, but with a sufficient degree
of flexibility allowing the President of the Court to make sure
that it can actually work in practice once you get down to dealing
with the cases.
Q428 Chairman: The broad thrust of what
I understand you, as a group, have said this afternoon is that
really you have achieved something pretty close to the irreducible
minimum time that it is going to take to deal with these cases.
Are you able to offer any words of comfort, encouragement, prospect
or hope to those who would like shorter periods of determination?
Judge Vesterdorf: I think I have already pointed
out that the Court is very open-minded and very carefully studying
all useful proposals, all the proposals which we have met and
heard about in this context, and we have our internal working
group constantly reviewing and checking out whether those rules
really are necessary and making them more efficient. It should
be said sufficiently clearly that there is a minimum time under
which you cannot go even if the case is introduced in our working
language, in which case there is no need for any translation at
any point in time. There is a strict minimum under which you cannot
really go if we are talking about competition or merger cases.
We have heard Judge Forwood mention that there are certain other
cases in which we have used fast-track cases, for example public
tender cases. We have sometimes been able to deal with those cases
much more swiftly, but that is because the questions are much
more limited in scope and very few pleas of law are presented
and they have none of the importance that the other cases represent.
Q429 Chairman: The only way you can really
achieve faster determinations is if you have less work across
the board, perhaps most obviously and notably by offloading the
trademark work which is a fast-growing area of your workload.
Judge Vesterdorf: That is correct. Could I use
the opportunity, as I said at the beginning, perhaps to clarify
a few points on which we have found the information perhaps needed
small corrections. On one of the points that has been made as
regards the use of language, it has been indicated to the Committee
that competition cases are, by far, in the majority, introduced
in your language, English. We looked closely at the statistics
and the statistics are that over the years since our establishment
in 1989, competition cases in general in English is 35 per cent,
the second largest group is French with 23 per cent and the third
largest is German. If we look at merger cases in the same period
of time, we find that the 49.3 per cent of the cases are introduced
in English, 22.5 in French and only about ten per cent in German
and ten per cent in Spanish, which is slightly surprising but
at least those are the figures, so it is not about three-quarters
of the cases introduced in English, but it is clear that it is
a clear majority across the board.
Q430 Chairman: It is clear. President,
unless you have anything else you, Judge Forwood or Judge Cooke
would like to add or any member of the Committee has any other
question, we would, indeed, be grateful to receive your updated
figures and I understand you are going to send those to us.
Judge Vesterdorf: We will do that.
Q431 Chairman: That would be very helpful
indeed. Thank you again for coming. It has been an enormous assistance.
Judge Vesterdorf: Thank you very much for hearing
us.
|
