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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