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

CHAPTER 5: The Wider Political and Economic Context

71.  The Attorney General told us "it's important that any examination of the Court's workload and potential solutions is viewed within the wider context".[100]

72.  The first point the Attorney made was: "one has to bear in mind ... that after the recent changes to the EU treaties by the Treaty of Lisbon, there is very little appetite among any Member States to embark on further processes for Treaty change in this context".[101] He went on to argue that "the current realities of intergovernmental dialogue suggest that at the moment people are rather content to leave the Court to work as it is, and if problems arise then on a pragmatic basis they will have to be tackled".[102]

73.  His second point concerned the wider economic environment. He argued that "[j]ust as Member States are facing tough budgetary decisions at present, the EU ... are facing similar constraints. It is important that any proposals necessarily take account of the existing financial restrictions".[103] For example, the Attorney ruled out as a solution any increase in the number of judges or AGs: "[m]oney is about priorities ... in the short term ... I think the chances of there being more money available in this area must be ... rather low".[104]

74.  Both academic and practitioner witnesses[105] questioned this approach and favoured structural reform, particularly to address the delays in the GC.

75.  Professor Arnull warned that the "time taken by the ECJ to respond to references from national courts is almost universally regarded as too long, and there is growing criticism and a sense of growing dissatisfaction with the quality of some of the judgments".[106] As for the GC, the CCBE said that the "caseload before the General Court has increased so much, and continues to increase, that something needs to be done to alleviate the burden and workload of the General Court".[107]

76.  The evidence suggests that the CJ faces potential difficulties and the GC is in serious trouble. The Committee is sensitive to the lack of appetite amongst the Member States for Treaty change and to the current economic constraints. It is our view, however, that the time to "leave the Court to work as it is" has passed and that solutions which may involve additional expenditure on the Courts (not involving an addition to the budget) need to be addressed urgently. We do not make any suggestion likely to involve Treaty change because in the short term other solutions are available. But the Member States should not be put off from undertaking necessary reform involving Treaty change when the opportunity arises in the longer term.

77.  The following Chapters discuss the proposals for reform of the CJEU drawn from the evidence placed before this Committee: Chapter 6 looks at the CJ, and Chapter 7 the GC. We will first consider three further aspects of the context in which the CJEU functions, arising from the actions respectively of the legislator (Council and Parliament), the Commission, and the Member States.

Legislative impact assessments

78.  The Law Society proposed that "the European Commission and the other EU institutions should undertake an access to justice impact assessment when considering new legislative proposals". Such an exercise would be designed to "ensure that a proper assessment is made of the avenues of redress required by the legislation, the potential litigation that could stem from it and the resources that might be needed to accommodate this".[108] This plea was repeated to the Committee by the President of the GC, Marc Jaeger, who cited the anticipated impact the REACH regime might have on the GC.

79.  Both the Government and the Commission were sceptical. On behalf of the Commission, Señor Requena said "I have a lot of sympathy, but in practice I have more difficulty in seeing how this could work". Even if it were possible to undertake such an assessment from the Commission's point of view, "it would very often be modified or altered by the legislator".[109] The Attorney General recognised that "if a Directive is going to be particularly difficult or controversial ... they tend to have a direct impact on the volume of work that ends up in front of the ECJ". However, whilst he was a "great fan of having impact assessments regarding the impact on the Court", his view was "tinged with a certain sense of reality ... history seems to show that, when it comes to the crunch, other Governments, and I suspect the Commission, are less keen".[110]

80.  We believe that legislation, in particular legislation liable to have a significant impact on the CJEU's workload, should include within its impact assessment a section considering its likely impact on the CJEU, a cogent recent example being the introduction of the REACH Regulation. Where the EU creates executive agencies designed to police the application of Community law, it is a legal requirement that their decisions be open to challenge. The EU institutions should not ignore the fact that the act of creating a regulatory agency whose decisions are subject to an appeal to the GC brings with it an impact on the GC which, as currently constituted, will struggle to carry the additional burden. Whilst we recognise the limitations of impact assessments highlighted by both the Commission and the Government, it must be the case that at least when creating an executive agency the Member States should consider its judicial impact.

Reform of Commission competition Decisions

81.  The Law Society argued that the length of written proceedings before the GC can be exacerbated by the "excessive" length of the Commission Decision being challenged. They suggest that "the Commission should be encouraged to consider shortening its own Decisions in competition and State aid matters without prejudice to the obligation ... to state fully its reasoning".[111] In response, Señor Requena pointed to "a new approach" by the Commission, built around an assessment of the ability of third parties to pay Commission fines and the policy of "settlement". He described "settlement" as allowing "the Commission to impose fines with a 10% reduction ... having received some sort of acknowledgment by the firms of their fault and, at the same time, some commitment in order to avoid repetition of the fault in the future". He concluded that "our competition policy is in permanent evolution and these two elements ... will contribute to alleviate the workload of the General Court in the coming months and years".[112]

82.  The Committee welcomes the Commission's new approach to competition cases and notes Señor Requena's comment that the Commission's competition policy is in "permanent evolution". In that light, we suggest that the Commission continues to strive to limit the impact their procedures and decisions have on the ability of the GC to cope with its workload. But this alone will not provide a solution to the GC's difficulties.

The rotation of judges

83.  This problem was brought to the Committee's attention by the CJEU itself. The Court argued that the current rules on the replacement of judges, whereby they are partially replaced every three years in alternate groupings of 13 and 14, cause problems for the Court in relation to how they manage their case-load. They said "[u]ncertainty over the appointment, or renewal, of judges has a direct effect on the scheduling of hearings and the handling of cases, not only in relation to cases assigned to judges whose terms of office are about to expire, but also in relation to cases assigned to the other members of the Chamber of which those judges are members". They conclude that this lack of stability has a "significant impact on their efficiency".[113] AG Sharpston added, "in order to ensure that judicial business is handled without interruption, it is important to know who is being renewed and who is likely to be replaced", but, "Member States do not always communicate this information to the Court until rather late in the day".[114] She asked that the Member States "let the Court know as soon as possible whether or not they intend to re-nominate an incumbent".[115]

84.  The Committee recommends that the Member States heed AG Sharpston's request and state their intentions regarding the appointment of judges in good time. We suggest that the Court stipulates what constitutes a reasonable period of time.

100   Q 125. Back

101   Q 125. Back

102   Q 147. Back

103   Q 125. Back

104   Q 134. Back

105   Professor Tridimas (WE 11) at paragraph 1; the European Circuit of the Bar of England and Wales (WE 6) at paragraph 13; and the CCBE (WE 9) at paragraph 35. Back

106   Q 2. Back

107   Q 61. Back

108   (WE 8) at paragraph 14. Back

109   Q 119. Back

110   Q 166. Back

111   (WE 8) at paragraph 21. Back

112   Q 123. Back

113   (WE 13) at paragraph 47. Back

114   See AG Sharpston's evidence at paragraph 1.7 in Appendix 5. Back

115   See AG Sharpston's evidence at paragraph 2.7 in Appendix 5. Back

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