Letter from the Rt Hon Ian McCartney MP,
Minister for Trade, Investment and Foreign Affairs, Department
of Trade and Industry, to Lord Grenfell, Chairman of the European
Union Committee
Thank you for your letter dated 2 February 2007
in response to the Government's submission to your call for evidence.
I would be happy to expand on the ideas your committee might wish
to consider.
The Government believe that the establishment
of a new competition court or of specialised chambers within the
CFI will not resolve the timing issue. This view is shared by
a number of your interlocutors including the European Commission
and the President of the CFI.
There may, however, be room for improvement
by making changes to case management and administrative procedures.
An example of improved efficiency would be the expedited procedure
(fast-track), introduced by the CFI itself. This means that cases
can now be heard in an average eight to nine months. However,
the Government would like to reiterate to the Committee that there
is a need to have regard to judges' expert views about possible
reforms to promote efficiency in the Court. While further improvements
can be made, these will, in general, require the cooperation of
the parties, and, given this and the limitation of resources and
the terms of the Treaties, it may be that the target of having
cases heard in an average of six months will not be achievable.
A. REGISTERING
APPEALS IN
LESS THAN
TWO MONTHS
You asked what we understand by "registering".
This is when an application to appeal is sent to the Registry
opening the proceedings.
We are not proposing a change in respect of
Article 230 as you suggest, or to Article 59 of the court statute.
As you have pointed out, it would require Treaty change if a reduced
time limit for appeals were to be imposed on the applicant. However,
we understand that outside a legal imposition, the CFI can, within
the scope of its organisational measures, indicate to the parties
that they do not have to take the whole 2 months to file their
appeal. If an applicant is seriously concerned about time limits
this must merit their consideration.
Article 115 of the CFI Rules of Procedure ("the
Rules") state an application to intervene, by a third-party,
must be made within six weeks of the publication of the notice
of the issue of proceedings, in the Official Journal of the EU,
referred to in Article 24(6). We are not suggesting this position
should change although the early publication of the notice in
the Official Journal will mean that this period begins sooner
than would have previously been the case.
B. LANGUAGE OF
PROCEEDINGS/INTERNAL
WORKING LANGUAGE
There is no scope in the CFI rules to compel
the Court to use a particular language as its working language.
In accordance with Article 35(5) of the CFI Rules, the Court may
use a language other than the language of the case in relation
to certain parts of the procedure. We believe that to insist that
the CFI work in the language of the case in its internal deliberations
would require a change to the CFI Rules.
The point that we wish to make relates to the
possibility for parties to apply to change the internal language
of the Court. The language of proceedings before the CFI is currently
chosen by the applicant from a list of 21 procedural languages
set out in the Rules. The language of the case must be used in
the parties' written and oral pleadings and in supporting documents.
As a matter of practice, the CFI uses French as its internal working
language. This means that, whatever the language of the case,
pleadings will normally be translated into French. Moreover, it
is in that language that the draft of the judgment will usually
be produced. This is explained historically, most of the original
six Member States could speak French and this has now become the
custom.
However, we understand that one of the first
internal administrative decisions taken by the CFI in the late
1980s was that the internal language could change on application
by the parties if feasible for that particular court. This, potentially,
could reduce the length of time for a case significantly, particularly
where there is a large amount of documentation which would previously
have required translation. Because this was an internal administrative
decision and is not in the Rules, it does not appear to be commonly
known and neither is it advertised. Philip Lowe, Director General
of the Competition Directorate-General, did refer to this possibility
in his oral evidence on behalf of the Commission to the Committee.
Nevertheless, the CBI, whose members are extensively involved
in this area, themselves were unaware.
C. ISSUANCE OF
THE DISPOSITIF
The time for any subsequent appeal to the ECJ
or under the EC Merger Regulation would have to run from the time
that the full reasons are issued. Parties will normally require
the Court's reasoning before deciding whether to lodge a further
appeal or not. However, cases which are not subject to further
appeal will have the benefit of a faster decision. This goes back
to the point that it may be the target of having cases heard in
an average of six months is not achievable.
D. FAST-TRACK
THE DEFAULT
PROCESS
We agree that the court should retain it's discretion
on the issue of fast track procedure, since experience has shown
that the fast track procedure only really works where the parties
agree. We believe, however, that it would be beneficial for the
exercise of the court's discretion to be informed by a knowledge
of the parties' willingness to co-operate.
The proposals for PHRs and case management conferences
were originally intended for merger cases but, following discussions
with other government departments, the scope was widened to cover
all competition cases—in line with the Sub-Committee's original
question of whether a proposed competition chamber should hear
all competition cases. In our original response to the Committee,
we argued that if there were to be a competition chamber, it should
hear all competition cases on the grounds of cost effectiveness.
The main thrust behind this and the idea for
a pre-hearing review was to improve case management and attempt,
with the agreement and cooperation of the parties, to manage the
scope of any appeal, consequently reducing the length of the proceedings.
We appreciate, however, that this proposal would require very
careful consideration before being adopted, so that full account
was taken of the existing procedures of the CFI and whether the
proposal is suitable for all cases.
Currently, the average length of a case without
expedition is 35 months, this seems a very long time in a time-sensitive
procedure. As part of the case management conference, parties
could be given the alternative of the expedited process as an
incentive to limit the scope of the appeal. Clearly in some cases
fast track would not be appropriate. The issue of cooperation,
which was raised by other witnesses before the Sub-Committee,
is important. Similarly, the Impala case showed that issues of
confidentiality, even in a case where the fast-track procedure
has been adopted, may result in significant delays.
E. CASE MANAGEMENT
DISCIPLINE
We consider that case management discipline
refers to a general process by which each case is considered,
at an early stage, with a view to deciding how best it may be
progressed. Two examples of steps which may be taken to achieve
such progression are fast-track and prioritisation. This could
be carried out at judicial level at a PHR, or as detailed above,
could be potentially be undertaken (with the cooperation of the
parties) by referendaires or the Court Registry.
F. PRIORITISING
COMPETITION CASES
The CFI was originally set up to deal with competition
and staff cases. Staff cases are now dealt with by a tribunal.
The CFI also deal with other cases, which were formally dealt
with by the ECJ, and consequently have a large backlog which they
are trying to address by hiving trademark and IP cases to a tribunal.
Clearly merger cases are time-sensitive but breaches of competition
rules can be equally time-sensitive where they have serious detrimental
effect on consumers, competitors and the market generally.
Article 76(a) which sets out the CFI expedition
procedure provides that all cases, not just mergers or competition
cases generally, which are adjudicated under an expedited ("fast
track") procedure are automatically given priority. There
is, however, scope under Article 55(2) of the CFI Rules of Procedure
for other cases to be prioritised. This has not been used very
often but means that cases of wider importance, which are not
fast tracked, could be given prioritisation under Article 55(2).
It is difficult to be precise over time-savings
in respect of unexpedited cases, however, if competition cases
were expedited, rather than run for an average of 35 months, it
would free up court time to deal with the other cases.
This again chimes with the Commission view.
Recently Commissioner Kroes said that "We need to ensure
that mechanisms for judicial review are timely, by encouraging
the CFI to bed down the fast track procedure for merger prohibition
decisions and by looking favourably at all initiatives from the
Court to allow it to concentrate on competition and State aid
issues.. ."
G. RESOURCES
FOR TRANSLATION
The recent increase in resources for the CFI
is welcome. The Government is not proposing that there is a further
increase in budget allocation but if savings can be made elsewhere
there is a good case for these savings to be reallocated for translation
within the existing CFI budget.
DTI ministers and officials remain at the disposal
of the Committee and we look forward to the committee's recommendations.
6 February 2007
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