CHAPTER 7: Reform of the General Court |
118. Of the CJEU's three constituent parts, it
is the GC that is experiencing the greatest difficulties in managing
its workload and where reform is most urgently needed.
119. The CBI
and the Law Society both argued that allocating cases to specialist
chambers within the GC would assist with the quality of decision-making
and speed the throughput of cases. They noted that it used to
be the GC's practice that trade mark cases were allocated on such
a basis but that the system was dropped because it was unpopular
with the judges.
120. Judge Forwood confirmed to the Committee
that in 1999, when trade mark law was a new area of work for the
GC, in order to achieve consistency of judgment in the evolving
case law, all trade mark cases were remitted to a particular chamber
of the Court. However, once the law had become settled it seemed
sensible to avoid one chamber from specialising in this way as
those judges who sat in the chamber were too busy to take part
in other cases, and those from other chambers were unable to contribute
to trade mark cases.
121. The Committee can see the case for the
use of specialist Chambers within the Court, in particular when
a new stream of cases flows into the Court. Given the evidence
discussed earlier in relation to the REACH Regulation and the
impact this area of law may have on the GC's workload, the Committee
suggests that, if the GC has not already done so, it should consider
the use of specialist chambers.
Better case management
122. The CBI called for the GC to embrace "more
robust case management", in particular setting a public timetable
The CCBE suggested the provision of a database where litigants
can check the progress of cases;
the Law Society appealed for better and earlier information on
and the Attorney General made similar arguments, subject to cost.
123. We put this to the judges of the GC. The
President said that the GC needed external help to achieve these
types of reform.
124. Although we recognise that addressing
the GC's case management record is not going to solve the GC's
wider workload problems, we recommend that the Court should consider
taking a more robust approach. It ought to be possible to publish
clear public timetables charting a case's progress. We suggest
that money is made available to create, or add to the Court's
website, a facility for achieving this.
125. Professor Tridimas identifies two ways
by which the case-load of the GC can be lessened: the establishment
of specialised tribunals sitting below the GC and a substantial
increase in the number of GC judges.
The Court noted that even if the efficiency of the judicial work
can still be marginally enhanced, it is highly doubtful whether
that could suffice to contain the growth of cases, let alone enable
a significant reduction in the considerable backlog of cases currently
pending before the GC. It too suggested structural remedies such
as increasing the number of judges at the GC or the creation of
a specialised court potentially in the field of intellectual property.
126. We agree that structural reform is necessary
to diminish the workload pressures the GC is currently experiencing.
This reform could be pursued by creating one or more specialised
tribunals similar to the CST, increasing the number of judges
in the GC, or a mixture of both solutions. These reforms enjoy
the advantage that they could be instigated without the need for
Treaty change. The merits of each are discussed below.
127. Most of our evidence dealt with the question
of creating specialist tribunals.
Practitioners favoured a Trade Mark Tribunal.
128. Professor Arnull suggested both a new
specialised intellectual property court and also noted that it
"would be possible ... to envisage a specialised court in
the field of competition law", though "it would inevitably
have the effect simply of extending the appeals process".
The CCBE supported a specialised tribunal for trade marks.
129. Professor Jacobs saw the creation of
specialised tribunals as a long-term solution in the right circumstances
which might exist for trade mark cases.
For example, "in relation to trade marks and design problems,
there seems to be a rapid growth in the number of cases. That
would be one reason to consider setting up a specialised tribunal".
Sir Konrad Schiemann also thought that separate tribunals
for intellectual property related cases or trade marks might work,
if they were properly financed, but from the point of view of
the CJEU's structure it would need to be determined whether such
courts would be truly separate, like the CST, or part of the GC.
130. The Attorney General was open-minded to
the prospect of specialised tribunals, and could see merit in
the argument for their creation,
but he repeatedly emphasised the cost implications and argued
that a trade mark tribunal would have to come out of the General
Court. He also
pointed out the risk of creating a new set of appeals from a tribunal.
131. Señor Requena doubted whether creating
specialist tribunals would provide the necessary long-term solution
and argued that creating a specialised tribunal would inhibit
flexibility if the pattern of the incoming case-load changed.
MORE JUDGES IN THE GC?
132. Many of the witnesses advocated the appointment
of more judges for the GC, as the best and most flexible solution
to its current workload problems. Señor Requena argued
that in the long-term creating more judges in the GC would offer
greater flexibility than specialised tribunals: "the increase
in the number of judges ... would be a more efficient solution
and a more flexible one because if after some years we see ...
new cases coming from a new agency ... it will be able to take
advantage of this increase ... in order to deal with these new
133. The CCBE endorsed this reform as a means
of bringing flexibility to the GC's efforts to reduce its workload:
"[w]hen you increase the number of judges you obtain flexibility
to deal with the backlog and different cases".
Even the Government, who repeated the caveats regarding
costs, accepted the basic premise for this reform that "you
can make a powerful argument for more judges to reduce workload".
134. Increasing the number of judges in the GC
raises the issue of how many there should be and of which nationality.
The CCBE, Professor Jacobs,
and Judge Forwood
all highlighted the Member States' failure in the 1990s to increase
the number of judges serving the GC by six.
OVERALL CONCLUSIONS ON STRUCTURAL
REFORM OF THE GC
135. Regarding specialist tribunals, we see
the CST as a special case since its work is essentially related
to the internal affairs of the EU and its decisions have no impact
on the law of the individual Member States. A proliferation of
specialist tribunals separate from the GC would not be desirable.
They would cost more than the CST, in particular given the greater
translation costs because their decisions will be of relevance
to all Member States. In addition, their judges will be of the
particular discipline and thus be of no use to the GC in coping
with its general workload. We do not recommend this course, provided
that the problems facing the GC are alleviated by other means.
136. We recommend an increase in the GC's
judiciary. Whilst we recognise the cost implications, if the Member
States are serious about addressing the GC's workload problems
this reform represents the best and most flexible long-term solution.
It must surely be possible for the Council to agree to appoint
the necessary number, less than 27, which the Court should recommend
at this stage. We suggest one third might be a reasonable number
on a rotating basis. This reform will of course cost money but,
given the central role fulfilled by the Court in the effective
operation of the Union, we believe that the benefits would clearly
outweigh the costs.
168 (WE 1) at paragraph 23. Back
(WE 8) at paragraph 13. Back
See also the CCBE (WE 9) at paragraph 36. Back
Appendix 4 at page 53. Back
(WE 1) at paragraphs 30 and 31. Back
The CCBE (WE 9) at paragraph 37, Q 51. Back
(WE 8) at paragraph 19. Back
See QQ 138, 157 & 158. Back
See also AG Sharpston's evidence at paragraph 2.8 in Appendix
(WE 11) at paragraph 22. Back
(WE 13) at paragraph 48. Back
Some members of the House of Lords may recall that the European
Select Committee rejected the creation of a specialised Competition
Court in its 2007 Report cited above at footnote 55. Back
The CBI (WE 1) at paragraphs 32-35; the European Circuit of the
Bar of England and Wales (WE 6) at paragraph 9; and the Law Society
(WE 8) at paragraph 12. Back
Q 22. Back
Q 61. Back
Q 79. Back
Q 82. Back
Q 77. Back
Appendix 4 at page 51. Back
Q 126. Back
Q 127. Back
Q 131. Back
QQ 110 & 111. Back
Q 124. Back
Q 61. Back
Q 137. Back
Q 40. Back
Professor Jacobs (WE 3). Back
Appendix 4 at page 54. Back