House of Lords - European Union

Select Committee on European Union Fifteenth Report

CHAPTER 4: Composition and Functions of A nEW Court

85. Although in our view the immediate way forward is not, for the reasons explained in the last Chapter, the creation of an EU Competition Court, we nevertheless believe it would be helpful to take the opportunity to record the evidence received on the composition and functions of such a court. The CBI proposal was that the new court would, in terms of the Treaty and its judicial architecture, be a judicial panel within the meaning of Article 225a TEC.

Judicial panels

86. Article 220 TEC, as amended by the Treaty of Nice, enables judicial panels[39] to be attached to the CFI in order to exercise the judicial competence of that court.[40] The Treaty envisages that panels will hear and determine at first instance "certain classes of action or proceeding brought in specific areas". The grounds for appeal from these panels may be limited to avoid overburdening the Community Courts. Decisions given by judicial panels may be subject to a right of appeal on points of law only or, when provided for in the decision establishing the panel, also on matters of fact, before the CFI.

87. As mentioned, judicial panels would have jurisdiction in relation to "specific areas". The draftsmen had three potential candidates in mind: disputes between the Community and its servants (staff cases); trade marks; and, as Judge Vesterdorf reminded the Committee, competition cases (QQ 377, 379).

88. In 2004 the Member States agreed to the creation of a judicial panel for staff cases.[41] The European Union Civil Service Tribunal is composed of seven judges and has the power to adjudicate on disputes between the EU and its civil service. Its decisions are subject to appeal on questions of law only to the CFI and, in exceptional cases, to review by the ECJ.

Jurisdiction of the Competition Court

89. If, as the CBI has proposed, a Competition Court is to be established as a "judicial panel" under Article 225a of the EC Treaty, the question arises as to what "competition" jurisdiction should it have. Would it be possible to carve out a specific area as the Treaty requires?

90. There are only about seven merger cases (i.e. appeals from Commission decisions under the EC Merger Regulation) a year[42] and although they may be complex and bulky, they would not generate enough work to justify the establishment of a new court. The DTI said that it would not be cost effective (DTI para 5.1). Witnesses were generally agreed that a new Court should deal with all competition law cases (appeals from decisions of the Commission in cartels, dominant positions and merger cases) except State aid cases. State aid was considered to be too politically sensitive to hand to a judicial panel, at least until it had some experience.

91. Defining more precisely the scope of such competition jurisdiction was not generally perceived to be a problem and we consider that it should be possible to limit the Court's jurisdiction by reference to appeals against Commission decisions in application of Articles 81 and 82 or under the EC Merger Regulation. We would exclude challenges against Commission measures under the State Aid rules (Articles 87-89). We also acknowledge that there may be political sensitivity as regards jurisdiction in cases involving Article 86 (public undertakings and undertakings entrusted with the operation of services of general economic interest).

92. In our view, there would be a greater problem, at least from a technical standpoint, in identifying competition cases (again as a "specific area"[43]) were it to be decided to confer a preliminary reference jurisdiction on the CFI. This is an issue we consider further in Chapter 6.

Composition of the Competition Court

93. The CBI's proposal is there should be nine judges, in three chambers of three. We asked what qualifications the judges in an EU Competition Court should have and how they should be appointed.

94. The DTI expressed concerns about the quality and appointment of judges to a new court. "These judges would either have to be especially recruited or seconded from national competition courts. They would have to be paid less than a CFI Judge (who would hear any subsequent appeal) but more than a [Director General] on whose decision they would be hearing the appeal. It is far from clear whether that rate would encourage applicants of sufficient experience and calibre. Moreover, judges are appointed by Council on the basis of one per Member State (by convention). Clearly there is no need for another 27 judges but this would require Council to agree to only some countries having more than one judge. Agreement on this is likely to be elusive and the issue could be linked into the debate on the roles and number of European Commissioners and turn into a major row, if raised" (p 131).

95. We agree that these are potential problems but it is noteworthy that none of our other witnesses envisaged such difficulties. Indeed, as several witnesses pointed out, the recent establishment of the Civil Service Tribunal provided a useful and encouraging precedent. We are, however, very conscious that competition policy is a far more politically sensitive subject than EU staff cases. It may be that agreeing fewer judges for a Competition Court would prove to be a significant problem.

APPOINTMENT PROCEDURE

96. The procedure for the appointment to judicial panels is a matter to be fixed in the instrument establishing the panel. Significantly, there need not be one judge per Member State as is provided by the Treaty for the ECJ and the CFI.[44] The Civil Service Tribunal has seven judges. The manner of their selection and appointment is instructive and, we believe, would provide a good precedent for any Competition Court. A committee of seven, made up of former ECJ and CFI judges and "lawyers of recognised competence" was set up by the Council[45] (Sir Christopher Bellamy was one of the seven) and there followed a public call for applications.[46] The Committee was required to produce, from 243 applications received, a list of at least 14 candidates "having the most suitable high-level experience". From this list, the Council appointed the seven judges, "ensuring a balanced composition of the Tribunal on as broad a geographical basis as possible from among nationals of the Member States and with respect to the national legal systems represented".[47]

97. Interestingly, appointment at a lower level than the CFI, does not seem to have prejudiced the quality of applicants. Sir Christopher Bellamy told us: "I was astonished by the quality of the applications that we had for the Civil Service Tribunal, both by the depth and skill of the applications we had from this country, which were most impressive, but also generally. We had several Supreme Court judges apply from various Member States—I say several, I think three from memory—and at Court of Appeal level and other similar levels, so there was no shortage of people who were interested in participating judicially in what the Community is doing at even what might be seen as a fairly modest level" (Q 200).

ONLY LAWYERS ALLOWED UNDER THE TREATY?

98. One issue on which our witnesses were divided was whether membership of the new Court should be restricted to lawyers. Article 225A TEC refers to members of judicial panels being "chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to judicial office".[48]

99. As regards membership of the ECJ and CFI, the practice of Member States has been to nominate lawyers, though not necessarily practitioners. So professors and civil servants have been appointed (Q 192). Judge Vesterdorf commented: "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'" (Q 408).

100. However, it is not clear that the Treaty restricts appointment to lawyers or those legally qualified. Article 225A TEC refers to the "ability", and not the qualifications, required for appointment to judicial office. Sir Christopher Bellamy said: "on its wording it does not look to me as if it does exclude other people other than lawyers" (Q 187). But Judge Cooke appeared to take a contrary view (Q 415).[49]

ECONOMISTS

101. If not limited by the Treaty, who might be considered? Dr William Bishop, CRA International, himself an economist, replied: "economists and that is actually for an objective reason … if you look at the history of anti-trust internationally, you will find that in all the leading jurisdictions of the world, in fact in all the jurisdictions of the world, the trend over the last 40 years has been for more and more economics to come into it and for reforms to be made to what were rather formalistic legal systems in the direction of more economically thought-out ideas". Dr Bishop also thought that business strategy analysts, financial analysts and accountants would have relevant skills (Q 164).

102. Sir Christopher Bellamy acknowledged the value that economists could bring to a new court and referred to the UK experience in the Restrictive Practices Court and now the Competition Appeal Tribunal (CAT). But, he said, "There is some theological objection sometimes in continental circles to having a judge who has a particular sort of expertise deciding economic questions. It is a bit like the issue of the medical member of the mental health tribunal panel deciding on medical issues, a slight fear that he will decide it because of his personal view on the subject rather than weighing the balance of the argument" (Q 223).

103. We do not suggest that widening the range of those appointable as judges would necessarily improve the expedition of these cases. Nor, as Judge Forwood indicated, is the ability to have economists as members of a new Competition Court likely to be one of the major driving forces for such a court (Q 416). But they could well contribute, hopefully without further delay, to the quality of the analysis of the evidence, review of the economic conclusions and judgments in competition and other commercial cases and their acceptance by industry.

LINGUISTIC SKILLS

104. As mentioned elsewhere the question of language is seen by the CBI as being very important. Sir Christopher Bellamy pointed to the need for the judges to have substantial linguistic ability, particularly if the working language practice was to be streamlined and the judges expected to work in the language of the case (frequently, but not always, English) (QQ 173, 194). Other practitioners agreed. Temple Lang and O'Donoghue commented: "Judges in a specialised court or chamber should have experience in competition law and be able to hear and decide competition cases in French, English and if possible also in German, Italian and Spanish" (p 162).

105. We see the obvious benefits in appointing candidates with wide linguistic abilities but are concerned that this criterion might have the effect of excluding many otherwise meritorious candidates. There may also be a danger that certain Member States would be less likely to provide a judge if too great weight is placed on knowledge of three or more core/working languages.

Appeals from the Competition Court

106. Article 225a TEC provides that decisions given by judicial panels may be subject to a right of appeal on points of law or, when provided for in the decision establishing the panel, a right of appeal also on matters of fact, before the CFI. Decisions of the CFI would exceptionally be subject to review by the Court of Justice.[50] Appeals from the Civil Service Tribunal to the CFI are limited to points of law.[51] That should also be the case for appeals from the Competition Court.

107. As mentioned, one of the concerns expressed by witnesses was that the creation of the Court would add a further level of appeal which, given the large sums typically involved in mergers falling within the scope of the EC Merger Regulation, would almost certainly be used by a party seeking to frustrate the transaction. Accordingly, while the Treaty would not seem to permit the possibility of an appeal from the CFI to the ECJ to be wholly excluded, a number of witnesses suggested ways in which it might be restricted so as to curtail opportunities for mischief or unnecessary delay.

108. The Competition Law Association (CLA) proposed that an appeal from the CFI to the ECJ should not be able to be brought without the permission of the ECJ. In the CLA's view, the possibility of appeal to the ECJ should be retained for exceptional cases to ensure the uniformity of Community law (p 128). Allen & Overy thought review by the ECJ should be limited to cases giving rise to a serious risk to the unity and consistency of Community law (p 117).

109. We agree. Were a Competition Court to be established, any appeal from the CFI to the ECJ in cases falling within the jurisdiction of the new court, should be restricted in so far as the Treaty permits. Only cases raising issues of fundamental importance to the interpretation and application of the Community's competition rules should be capable of appeal. We are also attracted to the need for the ECJ to give leave before any appeal can be brought.[52]

39 Under the Constitutional Treaty judicial panels are redesignated "specialised courts". Back

40 Such panels can, in accordance with Article 225a TEC (added by the Nice Treaty), be created by the Council, acting unanimously, on a proposal from the Commission or at the request of the Court of Justice. The significance of the Commission and Court having the right of initiative is discussed at paras 80-82. Back

41 Council Decision of 2 November 2004 establishing the European Civil Service Tribunal (2004/752/EC, Euratom) [2004] OJ L 333/7. Back

42 There have been 42 merger appeals since the fast-track procedure was introduced in 2001 (p 103). The majority of those cases are third party appeals. Back

43 See Article 225(3) TEC. Back

44 Articles 221 and 224 TEC respectively. Back

45 Council Decision of 18 January 2005 appointing members of the Committee provided for in Article 3(3) of Annex I to the Protocol on the Statute of the Court of Justice (2005/151/EC, Euratom) [2005] OJ L50/9. Back

46 Council Decision of 18 January 2005 concerning the conditions and arrangements for appointment as a judge of the European Civil Service Tribunal (2005/150/EC, Euratom) [2005] OJ L50/7. The call for applications was published on 23 February 2005 (in OJ C47/1) with a deadline of 15 April 2005. Back

47 Council Decision of 22 July 2005 appointing Judges of the European Civil Service Tribunal (2005/577/EC, Euratom) [2005] OJ L197/28. Back

48 The wording of Article 224 (appointment to the CFI) is similar except there the reference is to "high judicial office". Article 223 (dealing with the ECJ) is notably different from both Articles 224 and 225A, and refers to persons "who possess the qualifications required for appointment to the highest judicial office in their respective countries or who are jurisconsults of recognised competence". Back

49 In the context of the appointment of economists to the court, Judge Cooke said: "Provided that the economist was alive to the need to respect that principle (i.e. the limited nature of the judicial review conducted by the Court), 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" (Q 415). Back

50 Article 225(2) TEC and Articles 56-62b of the Statute of the Court of Justice. Back