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


CHAPTER 6: Solutions for the Court of Justice

Introduction

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 3—to 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.[116]

Procedural changes

86.  The Bar European Group argued that "real thought has to be given as to how sensibly to streamline ECJ procedures".[117] 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.[118] 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".[119]

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 effective".[120] He felt that "there is probably not a lot of scope for real further time savings"[121] and added this clarification: "[t]here are many aspects of the system that it is difficult—or even perhaps in real terms impossible—to change and the scope for improvements is very limited".[122] AG Sharpston[123] said that the CJ is currently undertaking a complete review of its rules of procedure,[124] 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.[125]

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.[126]

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 autonomy[127] which it considered likely to help dispose of cases expeditiously.[128]

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.[129] 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 Court.

REFORM THE ORAL HEARING?

92.  The vast majority of cases heard by the CJ are not automatically dealt with via an oral hearing.[130] Sir Konrad Schiemann estimated that of the 600 or so cases dealt with per year, around 180 would involve an oral hearing.[131]

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.[132] This was also supported by the CCBE. [133]

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.[134]

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, such requests.[135]

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 SYSTEM

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,[136] 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,[137] 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.[138] 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[139] 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.[140] 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.[141]

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".[142] 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 filter already".[143]

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".[144] This opinion was shared by the CCBE.[145]

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[146] 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.[147] AG Sharpston too dismissed this reform on practical grounds, being of dubious benefit and possibly costly. [148]

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 the CJ.

FILTERING REFERENCES

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.[149] 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.[150] 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".[151]

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"[152] and he rejected any change to the preliminary reference system that would discourage national courts from referring to the CJ.[153] The CCBE shared his view.[154]

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.[155] This goes further than the Court's existing rules of procedure[156] which merely asks national courts to formulate a proposed answer to the question referred, as recommended by the Due Report.[157]

110.  No other witnesses advocated Sir Francis' suggestion. The Government questioned the status of the green light[158] 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.[159]

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[160] 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.[161]

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 nationality".[162]

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 States—sometimes all of them".[163] 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".[164]

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 reference requests.

INCREASE THE NUMBER OF ADVOCATES GENERAL?

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.[165] 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".[166] The CCBE also saw a need for more AGs.[167]

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

117   (WE 12) at paragraph 23. Back

118   (WE 12) at paragraph 23; they also advocate wider use of judicial training programmes. Back

119   (WE 7) at paragraph 8. Back

120   Q 103. Back

121   Q 99; see also Professor Arnull, Q 20. Back

122   Q 99. Back

123   Current member of the Court's Rules of Procedure Committee. Back

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

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

126   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

127   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 57. Back

128   (WE 13) at paragraph 46. Back

129   Q 138. Back

130   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

131   Appendix 4 at page 50. Back

132   (WE 8) at paragraph 23. Back

133   Q 49. Back

134   Q 121. Back

135   Appendix 4 at page 50. Back

136   Due Report at page 14. Back

137   Due Report at page 16. Back

138   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

139   Now Article 256 (TFEU). Back

140   (WE 11) at paragraph 1; Professor Arnull (WE 2) at paragraph 19. Back

141   Professor Arnull (WE 2) at paragraphs 20 and 21. Back

142   Q 45. Back

143   Q 47. Back

144   Q 110. Back

145   Q 61. Back

146   See Chapter 3, and also AG Sharpston's evidence at paragraph 2.2 in Appendix 5. Back

147   Appendix 4 at page 54. Back

148   See AG Sharpston's evidence at paragraph 2.2 in Appendix 5. Back

149   Due Report at page 21. Back

150   Due Report at page 21. Back

151   Q 101. Back

152   Q 7. Back

153   See QQ 7, 9, 10 & 11. Back

154   Q 46. Back

155   Professor Jacobs (WE 3). Back

156   Article 104(b) of the Courts' Rules of Procedure. Back

157   The Due Report also rejected imposing an obligation on national courts to include an answer in the preliminary reference request. See page 18. Back

158   Q 149. Back

159   Q 44. Back

160   Q 152. Back

161   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

162   Q 55. Back

163   Q 83. Back

164   Q 85. Back

165   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

166   See AG Sharpston's evidence at paragraph 1.8 in Appendix 5. Back

167   Q 62. Back


 
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