House of Lords - The Workload of the Court of Justice of the European Union

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

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.

Specialist chambers

119. The CBI[168] 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[169] with the judges.[170]

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.[171]

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 for proceedings.[172] The CCBE suggested the provision of a database where litigants can check the progress of cases;[173] the Law Society appealed for better and earlier information on procedural timetables;[174] and the Attorney General made similar arguments, subject to cost.[175]

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.[176]

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.

Structural Reforms

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.[177] 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.[178]

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.

SPECIALIST TRIBUNALS

127. Most of our evidence dealt with the question of creating specialist tribunals.[179] Practitioners favoured a Trade Mark Tribunal.[180]

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".[181] The CCBE supported a specialised tribunal for trade marks.[182]

129. Professor Jacobs saw the creation of specialised tribunals as a long-term solution in the right circumstances[183] which might exist for trade mark cases.[184] 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".[185] 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.[186]

130. The Attorney General was open-minded to the prospect of specialised tribunals, and could see merit in the argument for their creation,[187] but he repeatedly emphasised the cost implications and argued that a trade mark tribunal would have to come out of the General Court.[188] He also pointed out the risk of creating a new set of appeals from a tribunal.[189]

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.[190]

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 cases".[191]

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".[192] 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".[193]

134. Increasing the number of judges in the GC raises the issue of how many there should be and of which nationality. The CCBE,[194] Professor Jacobs,[195] and Judge Forwood[196] 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

169 (WE 8) at paragraph 13. Back

171 Appendix 4 at page 53. Back

172 (WE 1) at paragraphs 30 and 31. Back

173 The CCBE (WE 9) at paragraph 37, Q 51. Back

174 (WE 8) at paragraph 19. Back

175 See QQ 138, 157 & 158. Back

177 (WE 11) at paragraph 22. Back

178 (WE 13) at paragraph 48. Back

179 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

180 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

181 Q 22. Back