CHAPTER 6: Solutions for the Court of
85. Our witnesses offered a wide spectrum of
solutions. These ranged from suggestions which can be classed
as minor (for example clearer case management information)which
while useful in themselves would offer very little by way of alleviating
the workload problems identified in Chapter 3to more far-reaching
reforms. The rest of this Report deals with the solutions most
frequently suggested in the evidence and assesses their potential
to ameliorate the workload problems facing the CJEU. This Chapter
will discuss the suggestions for reform of the CJ and the following
Chapter will consider those for the GC.
86. The Bar European Group argued that "real
thought has to be given as to how sensibly to streamline ECJ procedures".
They suggested staggering litigants' submissions in preliminary
reference applications, thus removing the need for lengthy Member
State observations to the Court; and better accelerated procedures
for those cases which need expedition but cannot be classed as
urgent. The Faculty
of Advocates too picked up on this aspect of the CJ's procedures,
and said that "[w]hile the Court of Justice has introduced
rules for the use of urgent procedures, it appears that these
are little used", and they argued that their greater use
might "improve justice ... [and] encourage early settlement".
87. On the other hand, Professor Jacobs
described the CJ's current procedural rules as "very straightforward"
and said that when they are followed the system is "quite
He felt that "there is probably not a lot of scope for real
further time savings"
and added this clarification: "[t]here are many aspects of
the system that it is difficultor even perhaps in real
terms impossibleto change and the scope for improvements
is very limited".
AG Sharpston said
that the CJ is currently undertaking a complete review of its
rules of procedure,
but acknowledged that, given the structural constraints of language,
heavy reliance on written procedure requiring translation and
Member States' privileged status as intervenors, there was not
much scope for making a further radical reduction in the average
time taken to process cases at the Court of Justice.
88. Whilst the Committee received some suggestions
for procedural reform, the weight of the evidence suggests that
delays due to the CJ's procedures have been reduced to, or close
to, the minimum. We look forward to the further conclusions of
the Court's Rules of Procedure Committee.
GIVE THE CJ PROCEDURAL AUTONOMY?
89. As we have seen, the CJEU does not currently
enjoy autonomy to amend its rules of procedure. Change remains
subject to Member State agreement. The judges at the CJEU suggested
that this rule should be amended to give the Court greater procedural
it considered likely to help dispose of cases expeditiously.
90. On the other hand the Government were against
procedural autonomy, considering it axiomatic that the Member
States who set up the CJEU by Treaty had a right to be consulted
over the formal procedure of the Court.
However, the Member States and the Council have never sought to
influence the internal rules of procedure of the other institutions
they established and the Council determines its own rules of procedure
by simple majority: so it is not clear why approval by the Council
should be necessary for any change to the Court's rules of procedure.
91. There is obviously a desire amongst the judges
of the Court who expressed an opinion to this Committee that they
should be given greater procedural autonomy. We have sympathy
for this view. On the other hand the Government's views suggest
that complete autonomy is unlikely to be granted. We understand
that the Court is currently undertaking its own review of its
procedures. We recommend that the Government and the Council
give constructive consideration to any reform proposals from the
REFORM THE ORAL HEARING?
92. The vast majority of cases heard by the CJ
are not automatically dealt with via an oral hearing.
Sir Konrad Schiemann estimated that of the 600 or so cases
dealt with per year, around 180 would involve an oral hearing.
93. The Law Society argued that the oral hearing
was an important step that should always be granted to the parties
of the case as it offered the judges an opportunity to reach a
greater understanding of the case and the parties' respective
positions, and this would mean that the Court would need less
time to reach a decision and to agree its judgment.
This was also supported by the CCBE. 
94. Señor Requena, on behalf of the Commission,
held a different view. He recognised that in the case of the GC
an oral hearing was unavoidable but had sympathy for the attitude
of the Court, which often considers that they do not need the
oral hearing "because they don't need to hear the facts in
detail. They have to judge only on legal issues, on legal terms."
He concluded that enormous savings of time and resources could
be made by dispensing with a hearing.
95. Sir Konrad Schiemann said that to people
familiar with the English legal tradition oral hearings before
the CJ could appear unsatisfactory. He noted that all Member States
were entitled as of right to request an oral hearing before the
Court and often one or more did. Further, individuals could submit
a reasoned request for a hearing and such requests were generally
granted. Sir Konrad also suggested that it would be helpful
if the Court could alter its procedure in order to refuse, occasionally,
96. The evidence on reform of the oral hearing
before the CJ is mixed. The bodies which represent the legal professions
argue that raising the status of the oral hearing will save time
and help to focus the Court's mind. Sir Konrad Schiemann
and the Commission disagree. In allowing the Court to decide
whether an oral hearing is necessary in each individual case,
whilst at the same time providing an opportunity for legal representatives
to apply for an oral hearing, we consider that the Court's current
rules of procedure strike the right balance.
Structural reform of the CJ
REFORM OF THE PRELIMINARY RULINGS
97. This was an area of reform considered by
the Due Report. The Working Party suggested a range of reforms,
including that national courts should be encouraged to "be
bolder" in answering questions of Community law themselves,
that the Commission, in its capacity as guardian of the Treaties,
should bring actions for failure to fulfil its obligations against
those Member States whose courts illustrate "ignorance"
of Community law,
and that provisions should be inserted into the CJ's rules of
procedure encouraging, but not obliging, national courts to "include
in the preliminary questions reasoned grounds for the answers
that the national court considers most appropriate".
98. Preliminary rulings formed the largest single
group of cases completed by the CJ in 2008 and 2009.
Given this, reform of the system could prove effective at reducing
the CJ's workload.
99. We heard four interrelated suggestions for
improving the system:
(i) sharing jurisdiction for preliminary rulings
between the CJ and the GC;
(ii) the use of a filter or leave mechanism designed
to govern when, by whom and under what circumstances the application
will be heard;
(iii) a "green light" system built
around the inclusion by the national court seeking a reference
of a provisional answer to the question; and
(iv) a requirement that the member of the CJ
judiciary from the Member State whence the request emanates be
obliged to sit on the judicial panel deciding the case.
The merits of each are discussed below.
SHARING JURISDICTION FOR PRELIMINARY
RULINGS BETWEEN THE CJ AND THE GC
100. Provision for this reform was first included
in the Nice Treaty
and it could be instigated without provoking Treaty change. Its
merits were considered by the Due Report, but the Working Party
rejected it and argued that the status quo should be respected
and that jurisdiction to give preliminary rulings should remain
with the Court of Justice.
101. Both Professor Tridimas and Professor Arnull
supported such a reform, although the latter recognised that under
the Treaties' existing provisions there were difficulties in allocating
which type of case would be heard by which Court because many
references cut across several areas of Union law.
Nevertheless, he argued that a "renewed effort needs to be
made to crack this nut" and that a "Treaty amendment
should not be ruled out" to allow references to be transferred
to the General Court in accordance with the statute. This would
leave the details to be worked out later and make it possible
for the cases affected to be defined by reference to their subject
matter or the identity of the referring Court.
102. Those arguing against this reform included
the CCBE who rejected any devolution of preliminary rulings, arguing
that "it is difficult to have any filtering system that would
not be arbitrary because some cases may appear simple or technical
yet may pose fundamental questions of principle that later have
an important effect across the board".
They also made the point that "[i]f anything, the need for
a reference to be made by a national judge is a pretty strong
103. Señor Requena for the Commission
argued that "it is crucial to keep the competences for these
preliminary references at the level of the Court of Justice; at
the level of the Supreme Court in Europe".
This opinion was shared by the CCBE.
104. The judges we met also saw practical problems.
Sir Konrad Schiemann argued, like Professor Arnull,
that determining which cases would be heard by which Court would
prove difficult. He pointed out that as the GC was already overloaded
it would be difficult to add to its remit without taking other
areas away from it. Judge Nicholas Forwood suggested that some
preliminary rulings could be handed down by the GC within specific
areas of EU law, and the examples he offered were trade mark law
or competition. However he too recognised that deciding which
cases would be heard by which court could pose practical problems
because some areas of EU law will inevitably overlap with others,
for example taxation law impacting on the area of freedom of movement.
AG Sharpston too dismissed this reform on practical grounds, being
of dubious benefit and possibly costly. 
105. Given the wider constitutional significance
of preliminary rulings, and given that the GC is overburdened,
we believe that this jurisdiction should remain exclusively with
106. The Due Report also considered the feasibility
of reducing the number of preliminary references by introducing
a mechanism whereby the Court of Justice would select only those
preliminary questions which it considered were sufficiently important
for Community law.
However, the Working Party rejected it, arguing that the relationship
of "cooperation and dialogue" between the CJ and the
national courts inherent in the preliminary ruling system would
be upset. On the
other hand Professor Jacobs argued that "if there is
an area where one can cut back, it would be in not requiring the
Court of Justice necessarily to deal with every reference that
is made, and finding some way of limiting that to cases that are
really important for the European Union system".
107. Professor Arnull argued that "if
we could identify the small issues and set them apart, then that
would be very convenient" but he was not confident that it
could be done. He concluded that "[o]ne of the lessons of
the case law of the Court of Justice is that apparently small
issues can actually raise issues of profound importance"
and he rejected any change to the preliminary reference system
that would discourage national courts from referring to the CJ.
The CCBE shared his view.
108. On the issue of introducing a filter into
the preliminary ruling system both the Due Report, and those who
gave evidence to this Committee, emphasised the delicate nature
of the relationship between the national court referring the question
and the CJ answering it. It is important that any filtering
reform should not disrupt the delicate relationship between the
national courts and the CJ, in particular when there is no evidence
to support any argument that this reform would address the central
goal of reducing the CJ's workload.
THE GREEN LIGHT SYSTEM
109. This reform was advocated by Professor Jacobs.
He envisaged a two stage process: at stage one the national court
requesting the preliminary ruling would be encouraged to state
its own answer to the interpretation of EU law, then, on completion
of the round of written observations, the CJ would decide whether
to give that answer a 'green light', or possibly simply to state
that it was unnecessary to rule on the question(s). By giving
the green light the CJ would not be endorsing the view of the
national court but would be signalling that it did not regard
its view as objectionable.
This goes further than the Court's existing rules of procedure
which merely asks national courts to formulate a proposed answer
to the question referred, as recommended by the Due Report.
110. No other witnesses advocated Sir Francis'
suggestion. The Government questioned the status of the green
light and the
CCBE suggested that the judiciary in some Member States would
actually be deterred from making a reference if there was an obligation
to formulate a provisional answer.
111. We agree that encouraging national courts
to include a provisional answer in their request for a preliminary
ruling is a sensible policy. We reject the idea of making the
practice compulsory but we see merit in the Court taking further
steps to encourage national courts making reference requests to
adopt this policy.
SHOULD THE CJ JUDGE WITH THE NATIONALITY
OF THE MEMBER STATE COURT MAKING THE REQUEST BE ROUTINELY INCLUDED
IN THE CJ CHAMBER DECIDING THE CASE?
112. The Government thought that in some cases
it would be essential to have a judge with an understanding of
the common law tradition
as part of the judicial chamber deciding the preliminary reference.
Professor Arnull argued that it could be useful but would
not go so far as to say that there ought to be a rule.
113. All the other witnesses who offered an opinion
rejected this idea. The CCBE considered that this could lead to
delays and preferred cases being allocated in a "rational
fashion ... rather than letting the allocation be determined by
114. Professor Jacobs felt that it "presents
a particular difficulty ... in the Court of Justice, because very
often cases will affect a number of Member Statessometimes
all of them".
Citing the collegiate ethos of the institution whereby at the
beginning of the CJ's procedure the whole Court considers the
preliminary reference request, he also thought that "it is
possible for members of the Court who are not sitting in the case
to keep the members who are sitting informed about any particular
problems that may arise as a matter of national law".
115. We are not persuaded that it is necessary
to introduce into the preliminary reference system a requirement
for the CJ judge with the nationality of the Member State court
making the request to be routinely included in the CJ chamber
deciding the case. Moreover we believe that the resultant restriction
on the pool of judges available to sit in any given preliminary
reference request would exacerbate the workload problems the CJ
is currently facing. We do, however, consider it important to
retain the stage of the procedure where all judges consider preliminary
INCREASE THE NUMBER OF ADVOCATES
116. Whilst increasing the number of judges in
the CJ would necessitate Treaty change there is already a provision
in the Treaty for increasing the number of AGs if the Member States
unanimously agree to such a request by the Court.
AG Sharpston suggested that "given that many cases are still
deemed complex and difficult enough to warrant an opinion from
the Advocate General, consideration could actively be given to
adding a further three Advocates General to the Court of Justice".
She argued for increasing the current number of AGs from eight
to 11, "the ratio between Judges and Advocates General was
15:8 in 2003. It is now 27:8".
The CCBE also saw a need for more AGs.
117. It is the Committee's view that an increase
in the number of AGs should be made as soon as possible. This
comparatively straightforward reform will assist the Court in
increasing the speed with which cases can be dealt, while improving
the quality of decision-making. There is provision in the Treaty
for an increase in the number of AGs serving the CJ and we recommend
that the CJ submit a request for an increase to the Council.
116 The Committee acknowledges that if enacted as currently
drafted many of the reforms suggested by this Report will engage
Clause 10 of the European Union Bill and as such will be subject
to parliamentary approval. Back
(WE 12) at paragraph 23. Back
(WE 12) at paragraph 23; they also advocate wider use of judicial
training programmes. Back
(WE 7) at paragraph 8. Back
Q 103. Back
Q 99; see also Professor Arnull, Q 20. Back
Q 99. Back
Current member of the Court's Rules of Procedure Committee. Back
See AG Sharpston's evidence at paragraph 1.7 in Appendix 5. Back
See AG Sharpston's evidence at paragraph 1.7 in Appendix 5. Back
For example the recent request by the President of the CJEU to
amend the Court's Rules of Procedure to allow electronic deposit
and service of procedural acts (e-Curia). Back
See AG Sharpston's evidence at paragraph 2.1 in Appendix 5, and
the evidence of the President of the CST in Appendix 4 at page
(WE 13) at paragraph 46. Back
Q 138. Back
Under Article 44a of the Court's Rules of Procedure, after the
pleadings have all been lodged, the Judge-Rapporteur has made
a Report to the Court, and all the judges have heard from the
AG, the Court can decide to dispense with the oral hearing. Back
Appendix 4 at page 50. Back
(WE 8) at paragraph 23. Back
Q 49. Back
Q 121. Back
Appendix 4 at page 50. Back
Due Report at page 14. Back
Due Report at page 16. Back
Based on the figures appearing in the Court's Annual Report, of
the 567 completed cases in 2008, 301 were preliminary references.
The figures for 2009 were 259/588 cases. Back
Now Article 256 (TFEU). Back
(WE 11) at paragraph 1; Professor Arnull (WE 2) at paragraph 19. Back
Professor Arnull (WE 2) at paragraphs 20 and 21. Back
Q 45. Back
Q 47. Back
Q 110. Back
Q 61. Back
See Chapter 3, and also AG Sharpston's evidence at paragraph 2.2
in Appendix 5. Back
Appendix 4 at page 54. Back
See AG Sharpston's evidence at paragraph 2.2 in Appendix 5. Back
Due Report at page 21. Back
Due Report at page 21. Back
Q 101. Back
Q 7. Back
See QQ 7, 9, 10 & 11. Back
Q 46. Back
Professor Jacobs (WE 3). Back
Article 104(b) of the Courts' Rules of Procedure. Back
The Due Report also rejected imposing an obligation on national
courts to include an answer in the preliminary reference request.
See page 18. Back
Q 149. Back
Q 44. Back
Q 152. Back
Q 30. In the European Court of Human Rights the judge of the nationality
of the Council of Europe Member State from where the application
comes is always a member of the judicial panel deciding the case. Back
Q 55. Back
Q 83. Back
Q 85. Back
Article 252 TFEU; see also the Declaration on Article 252 of the
TFEU regarding the number of AGs in the CJ: no. 38, annexed to
the Final Act of the Intergovernmental Conference which adopted
the Treaty of Lisbon. Back
See AG Sharpston's evidence at paragraph 1.8 in Appendix 5. Back
Q 62. Back