CHAPTER 3: Workload Problems Facing the
32. The ability of the CJ and the GC to handle
their pre-Lisbon workload was highlighted as an issue by this
Committee in its Report of April 2007, An EU Competition Court.
In addition, focussing more specifically on the CJ, our Report
on The Treaty of Lisbon: an impact assessment
also expressed concern that the expansion of its jurisdiction
resulting from the changes introduced by the Treaty of Lisbon,
in combination with the enlargement of the EU, would "further
swell the Court's docket, both in terms of volume and the range
of legal issues before it".
33. The CJEU's own statistical analysis appears
to show that the volume of cases remains high and that the rate
of disposal of cases is, in particular in the GC, insufficient
to bring about serious reductions in the turnaround time for litigation.
The Court of Justice's workload
34. The relevant statistical information showing
the CJ's workload is reproduced below in diagrammatic form from
their Annual Report 2009.
General activity of the Court of JusticeNew
cases, completed cases, cases pending (2005-09)
35. Figure 1 shows that there is reasonable stability
in the number of new cases at between 500 and 600 per annum, completed
cases at between 500 and 600 per annum and cases pending at about
750. The President of the CJ, in his introduction to the Court's
Annual Report, noted the increased productivity of the Court highlighted
by the rising number of completed cases. He also stated that "the
number of judgments delivered in 2009 is among the highest in
the Court's history".
36. The evidence submitted to the Committee also
highlighted the CJ's productivity and reflected the progress the
CJ has made in reducing its workload and cutting its turnaround
Luis Romero Requena, on behalf of the Commission, concurred, "I
would say that today the delays, even for a preliminary ruling
in the Court, are perfectly acceptable".
37. The Court's positive work in this area was
also praised by the CCBE, who told the Committee that the "current
average time of less than 18 months is a big improvement on 10
years ago" and
they emphasised that it "is important ... to recognise the
substantial efforts by the Court of Justice, in a multilingual
system, in streamlining its procedures and bringing in a system
which works much better than it did".
New casesNature of proceedings
38. Figure 2 shows that there has been a rise
in requests for preliminary rulings,
a sharp decrease in direct actions and a rise in appeals. Preliminary
rulings represent 53.8% of the new cases received by the CJ in
2009. The President of the CJ noted the "constant upward
trend in the number of references for a preliminary ruling".
39. Professor Jacobs told us that while
"it is true that the number of references from national courts
has broadly been constant at around 250 a year ... in the current
year there were over 300 references in the first nine months,
which suggests that an annual figure may be around 400. From the
point of view of the workload of the Court of Justice, the difference
between 300 cases and 400 cases is pretty substantial."
40. Other witnesses argued that the honeymoon
period following the accessions since 2000 within which the CJ
was able to take advantage of the increased number of judges to
reduce the backlog of cases, without a proportionate increase
in the number of cases coming from the new Member States, is coming
to a close.
41. We believe that the window of opportunity
has closed within which the CJ was able to avoid longer delays
because the increase in its membership preceded an expected increase
in its workload.
THE IMPACT OF THE TREATY OF LISBON
ON THE CJ'S WORKLOAD
42. Although the CJ has been successful in managing
its workload in the last decade, this progress will be offset
by the impact of the expansion of the Court's jurisdiction, particularly
into the Area of Freedom, Security and Justice. The evidence we
received appears to confirm that this could be a serious problem.
It is not simply a matter of more cases.
This is an area likely to generate difficult and important litigation.
43. It is also an area which requires cases to
be dealt with quickly and as a priority; hence a fast track preliminary
was introduced prior to the Treaty of Lisbon,
to deal with situations where national courts make a request to
the CJ for a preliminary reference where an individual is held
in custody. This is likely to have a significant negative impact
by delaying non-urgent cases as the procedure which is presently
used less than 10 times per year is used more frequently.
44. The evidence of the past decade illustrates
that the CJ has been successful in managing its workload effectively.
We believe that the expansion of the CJ's jurisdiction into the
Area of Freedom, Security and Justice introduced by the Lisbon
Treaty, coupled with the increase of EU membership to 27 States,
will have an impact on the CJ's ability to manage its workload.
We predict another crisis of workload soon. This issue will
be explored in Chapter 5.
The General Court's workload
45. In terms of profile and recognition, the
GC (the former CFI) is often the overlooked younger institution
of the CJ and its role and work is often misunderstood. As the
CCBE said "there doesn't seem to be sufficient awareness
of how fact-intensive or labour-intensive cases before the General
Court can be, because the General Court is a court of fact and
46. In his introduction to the section of the
Annual Report dealing with the GC, the President stated that from
a statistical point of view "the past year has been one of
continuity". He noted that a "large number of new cases
were brought", 568, and that 555 cases were completed, but
he added that "the number of cases pending could not be reduced
despite sustained efforts to achieve this".
47. The relevant statistical information about
the GC's workload, in diagrammatic form, is reproduced below from
their Annual Report 2009.
General activity of the General CourtNew
cases, completed cases and cases pending (2005-09)
New casesNature of proceedings
48. The nature of the cases has changed: staff
cases have declined, as since 2005 these have been dealt with
by the CST. There has been a steady increase in intellectual property
cases to 207 in 2009, and in appeals to 31 in 2009.
Completed cases in the GCDuration
of proceedings in months (2005-09)
49. The average time before determination of
cases was steady for intellectual property at the 20 month mark
and rose progressively for other actions (this includes competition
cases) to 33 months.
50. All the evidence we received confirmed the
rather bleak picture of the GC's position painted by the GC's
own statistics and suggests that the GC is experiencing great
difficulty in managing its case load.
The Government pointed to the increase in intellectual property
cases and the complexity of litigation in the GC as factors affecting
the GC's "inability to reduce its number of pending cases
and the increasing time taken for disposal of its cases".
51. The Confederation of British Industry (CBI)
said "an average turnaround time of 33.1 months for competition
cases is unacceptable"
and they cited what they hoped was a "wholly exceptional"
example, the recent case of ICI v European Commission
in which the appeal was lodged on 20 March 2001 and judgment was
handed down on 25 June 2010.
The Law Society did not believe "that the General Court will
significantly improve the rate of disposal of the backlog of cases
without structural measures being taken".
52. To make matters worse, witnesses noted that
decisions taken by the European Chemicals Agency (ECHA) under
the REACH regime
could have a significant impact on the GC. The CCBE feared that
the "cases coming out of REACH will be far more complex than
anything coming out of the trade mark regime. The Court could
come to a complete standstill if it were hit by a significant
wave, and there are signs that that is going to happen".
The President of the GC too warned of the impact that REACH could
have on the Court's ability to manage its workload.
He said that when the system was originally conceived it was based
upon a prediction that 250,000 applications for chemical licences
would be made to the European Chemicals Agency. However, he reported
that the most recent estimate put the figure at a far greater
2 million applications and as a proportion of these would be challenged
at the GC this would further increase their workload.
Finally, and most telling of all, Professor Arnull noted
that the "General Court has, on a couple
of occasions, been found by the Court of Justice not to have delivered
decisions within a reasonable time".
53. We conclude that the most immediate problem
lies in the GC. The GC's own statistical information, and the
evidence we received, point to significant problems with its existing
workload and its ability to manage its future workload. We agree
with the representatives of the CCBE that it is within the GC
that "structural solutions need to be found"
The Civil Service Tribunal's
54. In 2005, in line with the Due Report's recommendations,
the jurisdiction to hear staff cases was removed from the GC and
passed to the CST.
General activity of the Civil Service
TribunalNew cases, completed cases, cases pending (2005-09)
55. The statistics and evidence relating to the
CST do not indicate a problem with the institution and its ability
to manage its workload. The CST is not only coping
with its case-load but reducing it. This reduction appears to
be partly the result of the Court's introduction of a costs disincentive,
whereby the person who loses the litigation pays all the costs.
56. The CST is a success story and the Committee
has no concerns regarding its ability to manage its case-load.
55 An EU Competition Court (15th Report of Session
2006-07, HL 75). Back
The Treaty of Lisbon: an impact assessment (10th Report
of Session 2007-08, HL 62). Back
CJEU Annual Report 2009 at page 10. Back
The evidence suggests that when compared with other courts of
similar seniority (itself not a straightforward task) the turnaround
times for the CJ are acceptable, especially when taking into account
the multilingual nature of the proceedings. For example see the
Attorney General, Q 125; Government (WE 10) at paragraphs 28-34;
The Bar European Group (WE 12) at paragraph 7; The CJEU (WE 13)
at paragraph 16; and AG Sharpston's evidence at paragraph 1.2
in Appendix 5. Back
Q 113. Back
Q 42. Back
Q 42. Back
Professor Jacobs' evidence, discussed in this Chapter, suggests
that in 2010 the trend for preliminary rulings has continued to
rise to levels that may cause the CJ difficulties. Q 95. Back
CJEU Annual Report 2009, at page 10. Back
Q 95. Back
For example, see Professor Damian Chalmers (WE 5) at paragraph
2: "with the appointment of twelve new judges, the Court
has had an 80% increase in personnel. This has not yet been fully
reflected by an increase in its docket as neither the effects
of the 2004 or 2007 enlargements have yet filtered through." Back
For examples see: the Attorney General, Q 142; Professor Damian
Chalmers (WE 5) at paragraph 3; the Faculty of Advocates (WE 7)
at paragraph 1; The Law Society of England and Wales (WE 8) at
paragraph 16; Professor Takis Tridimas (WE 11) at paragraphs 5-10. Back
Pre-Lisbon recourse to the preliminary ruling system for the interpretation
of Freedom, Security and Justice measures was limited to the highest
courts in the Member States (Article 68(1) TEC). Back
Q 14. Back
Article 267 TFEU. Following the French acronym for Procédure
Préjudicielle d'Urgence this is often referred to in
the evidence as the PPU system. Back
Used for the first time in the case of C-195/08 Inga Rinau (Area
of Freedom, Security and Justice)  2 WLR 972. Back
The CCBE, Q 68; Professor Jacobs, QQ 95 & 97; and AG Sharpston's
evidence at paragraph 1.4 in Appendix 5. Back
Q 71. Back
CJEU Annual Report 2009, at page 111. Back
See in particular the CCBE, Q 61; Professor Jacobs, Q 103; the
Commission, Q 114; and the Attorney General, Q 125. Back
Government (WE 10) at paragraph 27. Back
(WE 1) at paragraph 9. Back
Imperial Chemical Industries v Commission (Competition) 
EUECJ T 66/01 (25 June 2010). Back
(WE 1) at paragraph 12. Back
(WE 8) at paragraph 7. Back
REACH is the EU Regulation on Registration, Evaluation, Authorisation
and Restriction of Chemicals and created the European Chemicals
Agency (ECHA). ECHA ensures the safe use of chemicals within the
EU. It is designed to promote a high level of human health and
environmental protection within the context of free movement of
chemicals around the Single Market. It makes industry responsible
for assessing and managing the risks posed by chemicals and providing
appropriate safety information to users. Challenges to decisions
taken by ECHA can be brought in the GC. Back
Q 69. Back
Appendix 4 at page 52. Back
See also the Commission (WE 4). Back
See cases Baustahlgewebe v Commission (Competition)  ECR
I 8417 and Der Grûne Punkt-Duales System Deutschland v Commission
(Competition)  EUECJ C-385/07 (16 July 2009). Back
Q 2. Back
Q 61. Back
The Due Report recommended, at page 30 of their report, that an
"interinstitutional complaints tribunal" be created. Back
(WE 13) at paragraph 13; Commission (WE 4). Back
CST, Appendix 4 at page 56. Back