CHAPTER 8: Summary of Conclusions |
The Court of Justice's workload
137. We believe that the window of opportunity
has closed within which the CJ was able to avoid longer delays
because the increase in its membership preceded an expected increase
in its workload (see paragraph 41).
THE IMPACT OF THE TREATY OF LISBON ON THE CJ'S WORKLOAD
138. We believe that the expansion of the CJ's
jurisdiction into the Area of Freedom, Security and Justice introduced
by the Lisbon Treaty, coupled with the increase of EU membership
to 27 States, will have an impact on the CJ's ability to manage
its workload. We predict another crisis of workload soon (see
The General Court's workload
139. We conclude that the most immediate problem
lies in the GC. The GC's own statistical information, and the
evidence we received, point to significant problems with its existing
workload and its ability to manage its future workload. We agree
with the representatives of the CCBE that it is within the GC
that "structural solutions need to be found"
and urgently (see paragraph 53).
The Civil Service Tribunal's workload
140. The CST is a success story and the Committee
has no concerns regarding its ability to manage its case-load
(see paragraph 56).
TRANSLATION INTO THE CJEU'S WORKING LANGUAGE
141. It is our view that the popular opinion
that delay is caused by translating documents into the CJEU's
working language is misplaced. The CJEU has to have a working
language and for historical reasons that language is French. Any
increase in the number of working languages will, in the Committee's
view, merely add another level of translation to the process,
thus exacerbating any existing delays caused by translation (see
TRANSLATING THE COURT'S JUDGMENTS INTO THE EU'S 23
142. Access to the CJ's case law, either by Member
States' authorities or their citizens, must remain the key. The
law as decided by the CJ applies equally throughout the Member
States, and it has to be available in a language that all the
citizens of the Member States can understand. This is important
for the Court's legitimacy (see paragraph 68).
143. Translation remains an expensive but necessary
service for an institution operating in a multilingual and transnational
environment (see paragraph 70).
The wider political and economic context
144. 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 (see paragraph 76).
Legislative impact assessments
145. 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 (see paragraph
The rotation of judges
146. 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
(see paragraph 84).
147. 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 (see paragraph 88).
GIVE THE CJ PROCEDURAL AUTONOMY?
148. We recommend that the Government and the
Council give constructive consideration to any reform proposals
from the Court (see paragraph 91).
REFORM THE ORAL HEARING?
149. 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 (see paragraph 96).
SHARING JURISDICTION FOR PRELIMINARY RULINGS BETWEEN
THE CJ AND THE GC
150. 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 (see paragraph 105).
151. 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 (see paragraph 108).
THE GREEN LIGHT SYSTEM
152. 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 (see paragraph 111).
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?
153. 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 (see paragraph 115).
INCREASE THE NUMBER OF ADVOCATES GENERAL?
154. 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 (see
155. 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 (see paragraph 121).
Better case management
156. 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 (see paragraph 124).
OVERALL CONCLUSIONS ON STRUCTURAL REFORM OF THE GC
157. 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
(see paragraph 135).
158. 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 (see paragraph 136).
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