The Workload of the Court of Justice of the European Union - European Union Committee Contents


CHAPTER 3: Workload Problems Facing the CJEU

Introduction

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.[55] In addition, focussing more specifically on the CJ, our Report on The Treaty of Lisbon: an impact assessment[56] 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.

FIGURE 1

General activity of the Court of Justice—New 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".[57]

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 times.[58] Señor 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".[59]

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"[60] 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".[61]

FIGURE 2

New cases—Nature of proceedings (2005-2009)

38.  Figure 2 shows that there has been a rise in requests for preliminary rulings,[62] 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".[63]

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."[64]

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.[65]

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.[66] It is not simply a matter of more cases.[67] This is an area likely to generate difficult and important litigation.[68]

43.  It is also an area which requires cases to be dealt with quickly and as a priority; hence a fast track preliminary ruling procedure[69] was introduced prior to the Treaty of Lisbon,[70] 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.[71]

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 law".[72]

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".[73]

47.  The relevant statistical information about the GC's workload, in diagrammatic form, is reproduced below from their Annual Report 2009.

FIGURE 3

General activity of the General Court—New cases, completed cases and cases pending (2005-09)

FIGURE 4

New cases—Nature of proceedings (2005-09)

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.

FIGURE 5

Completed cases in the GC—Duration 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.[74] 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".[75]

51.  The Confederation of British Industry (CBI) said "an average turnaround time of 33.1 months for competition cases is unacceptable"[76] and they cited what they hoped was a "wholly exceptional" example, the recent case of ICI v European Commission[77] in which the appeal was lodged on 20 March 2001 and judgment was handed down on 25 June 2010.[78] 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".[79]

52.  To make matters worse, witnesses noted that decisions taken by the European Chemicals Agency (ECHA) under the REACH[80] 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".[81] The President of the GC too warned of the impact that REACH could have on the Court's ability to manage its workload.[82] 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.[83] Finally, and most telling of all, Professor Arnull noted that the "General Court has, on a couple[84] of occasions, been found by the Court of Justice not to have delivered decisions within a reasonable time".[85]

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"[86] and urgently.

The Civil Service Tribunal's workload

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.[87]

FIGURE 6

General activity of the Civil Service Tribunal—New 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[88] 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.[89]

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

56   The Treaty of Lisbon: an impact assessment (10th Report of Session 2007-08, HL 62). Back

57   CJEU Annual Report 2009 at page 10. Back

58   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

59   Q 113. Back

60   Q 42. Back

61   Q 42. Back

62   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

63   CJEU Annual Report 2009, at page 10. Back

64   Q 95. Back

65   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

66   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

67   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

68   Q 14. Back

69   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

70   Used for the first time in the case of C-195/08 Inga Rinau (Area of Freedom, Security and Justice) [2009] 2 WLR 972. Back

71   The CCBE, Q 68; Professor Jacobs, QQ 95 & 97; and AG Sharpston's evidence at paragraph 1.4 in Appendix 5. Back

72   Q 71. Back

73   CJEU Annual Report 2009, at page 111. Back

74   See in particular the CCBE, Q 61; Professor Jacobs, Q 103; the Commission, Q 114; and the Attorney General, Q 125.  Back

75   Government (WE 10) at paragraph 27. Back

76   (WE 1) at paragraph 9. Back

77   Imperial Chemical Industries v Commission (Competition) [2010] EUECJ T 66/01 (25 June 2010). Back

78   (WE 1) at paragraph 12. Back

79   (WE 8) at paragraph 7. Back

80   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

81   Q 69. Back

82   Appendix 4 at page 52. Back

83   See also the Commission (WE 4). Back

84   See cases Baustahlgewebe v Commission (Competition) [1998] ECR I 8417 and Der Grûne Punkt-Duales System Deutschland v Commission (Competition) [2009] EUECJ C-385/07 (16 July 2009). Back

85   Q 2. Back

86   Q 61. Back

87   The Due Report recommended, at page 30 of their report, that an "interinstitutional complaints tribunal" be created. Back

88   (WE 13) at paragraph 13; Commission (WE 4). Back

89   CST, Appendix 4 at page 56. Back


 
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