Letter from Lord Grenfell, Chairman of
the European Union Committee, to the Rt Hon Ian McCartney MP,
Minister for Trade, Investment and Foreign Affairs, Department
of Trade and Industry
Thank you for your letter of 18 January setting
out the Government's response to our Call for Evidence. We note
that the Government consider that the establishment of a new Competition
Court or of specialised chambers within the CFI would not achieve
the desired aim of a speedy resolution of competition cases and
that a better approach would be to make changes to the "case
management and administration systems" of the CFI. At paragraph
7.3 of your letter you make a number of recommendations as to
how the CFI might reform its procedures. We would find it helpful
if you could provide some clarification of the Government's proposals.
A. REGISTERING
APPEALS IN
LESS THAN
TWO MONTHS
You say that consideration should be given to
reducing the current two month time limit for "registering"
appeals to one month. What do you understand by "registering"
in this context? It is unclear whether you are suggesting that
the normal two months (set out in Article 230 of the EC Treaty)
for challenging acts such as Commission decisions be reduced in
merger cases—such a reduction would of course require Treaty
amendment. It would also be helpful if you could make clear your
reference to the position of third parties. Are you suggesting
that third parties also should not have two months in which to
bring or "register" an appeal? Or are you merely suggesting
that the time, provided in Article 115 of the CFI Rules, for third
parties to intervene (in an action brought by one or more of the
merging parties against the Commission prohibition decision) should
be reduced? If the latter, what amendment would you make?
B. LANGUAGE OF
THE PROCEEDINGS/INTERNAL
WORKING LANGUAGE
You have proposed: "If it can be agreed
by the parties, appellants could include in their application
for expedition the request that the language of their case should
be used by the Court in its consideration of it" (your emphasis).
You then refer to Article 35(5) of the CFI's Rules which enables
the Court to use a language other than the language of the proceedings
for four formal steps: the conduct of the oral proceedings by
the President, the preliminary report of the Judge Rapporteur,
his report for the hearing and any questions and opinion of the
Advocate General in the case (in practice the CFI does not appoint
AGs). Do your words "in its consideration of it" mean
to refer to the Court's working language? We understand Article
35(5) to be concerned with particular matters other than the Court's
working language. If the applicant (by stipulating the language
of the case—Article 35(2)) could require the President and
the Judge Rapporteur to work in the language of the case (rather
than in his own language, or French, and then be translated) might
not this be counter-productive?
C. ISSUANCE OF
THE DISPOSITIF
You propose that decisions should be provided
at the earliest opportunity "perhaps by making a public announcement
or by issuing decision with summary reasons with the full reasons
following later". You estimate this would reduce the timescale
by a month. But when would time begin to run for the purposes
of any appeal to the ECJ or under the EC Merger Regulation in
the event that the Commission had to reconsider the merger proposal?
Might not the benefit of any saving in time only be had where
the CFI upholds the Commission's decision and the parties choose
not to appeal?
D. FAST-TRACK—THE
DEFAULT PROCESS
You suggest that all cases could be subject
to a short pre-hearing review (PHR) with fast-track the default
process. By "all cases" do you mean all merger cases,
all competition cases, or all cases brought before the CFI? What
are the arguments for removing the discretion of the Court in
deciding whether a matter should be subject to fast-track or normal
procedure? Our witnesses have suggested that the fast-track only
works where all the parties cooperate, in particular by the applicant
reducing the numbers of grounds of appeal.
E. IMPOSING CASE
MANAGEMENT DISCIPLINE
What precisely do you envisage by the term "case
management discipline"?
F. PRIORITISING
COMPETITION CASES
Why should competition cases, other than mergers,
have priority over other cases before the CFI? How much time would
be shaved off the overall length in practice if the parties have
not opted for the fast-track? How does "speedier review"
provide "greater transparency and consistency"?
G. RESOURCES
FOR TRANSLATION
You say that "greater resources could be
put into translation". Is the UK arguing that there should
be an increase in resources over and above those recently given
to the CFI? Or is the expectation that the Court will make efficiency
savings which will then be reinvested? If the fast-track default
process is limited to merger cases (seven or eight a year) what
type and level of resources would be saved and how easily could
they be diverted into translation?
2 February 2007
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