APPENDIX 4: VISIT TO THE COURT OF JUSTICE
OF THE EUROPEAN UNION, LUXEMBOURG: 8-9 NOVEMBER 2010NOTE
BY THE CLERK |
Court of Justice
Evidence was taken from Sir Konrad Schiemann,
UK judge at the Court of Justice, Señor Alfredo Calot-Escobar,
Registrar of the Court, and Mr Timothy Millett, Deputy Registrar
of the Court.
The witnesses were asked what changes could be made
to the rules of procedure of the Court without treaty change,
and what changes they would advocate if they had complete procedural
autonomy. Sir Konrad said that all the Court's procedures
took a long time to complete. He could not speak "for the
Court" as the Court itself had no policies as such. The Court
had no control over its case-load and had to deal with whatever
cases came in at whatever time.
Sir Konrad indicated that the Court could reject
a case by ordinance. For instance, the Court could say to a submitting
court that their preliminary reference was not a matter of EU
law, and therefore could not be accepted. However, this would
have to be done gently. In the past year, around 40-50 references
had been rejected in this way.
Occasionally, the question put to the Court was answered
in the meantime in another case. In such circumstances the CJ
would write to the referring court asking them whether they wished
to pursue their reference. But the Court itself had no power to
withdraw a reference unilaterally.
Sir Konrad described the typical progress of
a case through the Court of Justice:
A national court makes a request for a preliminary
ruling. That court sets out what the problem is, the relevant
national provisions and what concerns the court. The Court of
Justice has published suggested guidelines for how national courts
should submit this request, but there is not a specific template.
The guidance asks the national court to find the relevant facts
in the case in order to allow the Court of Justice to judge on
as narrow an issue as possible. For instance, in the case of English
football television rights, the English court asked for a ruling
because the case appeared to demonstrate a conflict between previous
CJ rulingsthe Court was therefore asked to rule on the
correct interpretation of the law. Usually, the Court would reformulate
the question in such terms as "By its question the national
court asks ..."
In regard to whether national judges should give
their own opinion on the case, Sir Konrad indicated that
this already happened in a number of cases, and was encouraged
by the Court's guidance information. This was always encouraged
in the English Court of Appeal, and was useful as the national
judge was familiar with the practical application of the particular
law in that country. However, any ruling by the Court of Justice
would bind all 27 Member States, and might therefore have different
effects in different States. For this reason, all preliminary
references by national courts which were not dismissed by way
of ordinance were translated into all official languages and circulated
to all Member States and the EU institutions for comments. For
the same reason all judgments were translated into all official
languages of the Member States.
Señor Calot-Escobar described the procedure
for translation both in preliminary reference cases and in the
other types of casesdirect actions in which the Commission
sued a Member State for failing to fulfil its treaty obligations
or in which a challenge was made to the legality of some piece
of Union legislation and appeals from the General Courtwhich
come before the Court. In almost all cases, the translations had
to be produced within imperative time-limits, for example 20 working
days for references for preliminary rulings. In 2009, the Court
translated around 800,000 pages of legal documents, and had to
identify the correct legal terminology in each language to ensure
an accurate translation. The Court needed the resources in order
to meet this workload and to respect the translation deadlines.
Sir Konrad observed that occasionally the translations were
difficult to follow, but that it was difficult to tell whether
this was the fault of the translation or of the draft by the submitting
national judge. However, mistranslations were normally discovered
reasonably quickly, typically by the judge working on the case
cross-checking with someone in one of the other cabinets in the
Court who spoke the relevant language.
After translation, in all preliminary ruling cases
the documents were sent to the Member States, and to the Commission,
the Council and the Parliament who then had two months to formulate
their observations. In direct actions and appeals the documents
were translated into French (for the benefit of the Court). Appendices
to the parties' pleadings were only translated if this was requested
by the reporting judge.
Sometimes people did not respond. This might happen
if a party to a case suspected they would lose but wanted to delay
judgment as long as possible.
Cases were sometimes more complex than necessary
because the parties were asked by the national judge to draft
the submission, with the judge sending it on unamended. Although
in theory it was for the national judge to decide whether or not
to make a reference, in practice in England a judge would be inclined
to make a reference if both parties accepted that the case needed
to be referred.
Normally, a response would be received from at least
the Member State in which the case had arisen.
Sir Konrad explained how the judges to hear
the case were chosen:
Firstly, the President of the Court would appoint
a reporting judge (juge rapporteur) to the case. The President
had to balance considerations of choosing the judge with the most
relevant experience against fair distribution of appointments
among the judges. The reporting judge made a summary of the case
and the arguments of the parties, and would also propose how many
judges should take part in the proceedings and whether there should
be an opinion by the Advocate General. There was a choice of 3,
5, 13 or all 27 judges, although all 27 had sat in only two recent
cases. The decision as to how many judges should hear each case
and whether there should be an opinion was always taken by all
the members of the Court.
The numbers from 2005-2009 were as follows:
Most judges were chosen for cases by rota.
With regard to oral hearings, all Member States were
entitled as of right to request a hearing and often one or more
did. Individuals could submit a reasoned request for a hearing,
and such requests were generally granted. Sir Konrad suggested
that it would be helpful if the Court could alter its procedure
in order to refuse such requests occasionally.
There were around 600 cases per year, of which around
180 featured hearings. To people familiar with the English legal
tradition, these hearings appeared unsatisfactory. Some of this
was due to the need for simultaneous translation of the proceedings,
and some due to the variable quality of the counsel. Sir Konrad
noted that British counsel were usually the most effective in
oral hearings, and the most expensive.
The hearings were normally restricted to 20 minutes
for each party, although this could be extended on request. The
members of the court could intervene to ask counsel to elaborate
on particular points.
Sir Konrad suggested that, ideally, more of
the proceedings could take place in writing, but that this would
delay the process even further. Currently in preliminary reference
cases the written element amounted to one round of simultaneously
submitted material: any further elaboration or rebuttal had to
be done orally.
The oral procedure had developed in recent years
in part perhaps under the influence of British legal traditionjudges
took more part in proceedings than before, rather than adopting
the French practice of impassivity.
Sir Konrad suggested that there was little tension
between common law and Napoleonic approaches as civil law matters
rarely arose. Tension mainly arose in cases of choice of forum
or enforcement of judgments, where a common law judge would normally
expect to have greater discretion, whereas the Court's case law
placed more emphasis on the desirability of clear rules inflexibly
Sir Konrad suspected differences of view among
members of the CJEU with regard to allowing preliminary references
to be taken by the General Court. He had no firm view himself,
but argued that there was a difficulty in determining which cases
would be suitable to be dealt with at that level. Some people
had suggested that technical VAT measures, for instance, might
be taken by the General Court, but it was difficult to predict
in advance which cases might raise fundamental questions of EU
law. He also suggested that any ruling from the General Court
would be subject to appeal to the Court of Justice, which would
not alleviate either Court's workload. In any case, the General
Court was already overloaded, so it would be difficult to add
to its remit without taking other areas away from it.
Señor Calot-Escobar argued that translation
was not causing a bottleneck. It was an obligation to translate
into the official languages and this was not currently a problem,
but could become one if the workload increased. He argued that
the Court needed additional resources, and was struggling to receive
them. An attempt by the Court to employ one extra English lawyer-linguist
(bringing the total from 30 to 31) had met with resistance from
the Council. Additionally, he confirmed that recruitment of British
lawyer-linguists was difficult because the pay was not competitive
for such highly-qualified people. Sir Konrad added that everybody
in a particular grade had to be paid the same, regardless of their
home Member State. Normally this had been done by adopting the
most generous rate, but this had still not resolved the problem
for English speaking lawyer-linguists who were relatively few
and in world-wide demand.
With regard to unusual languages, when no translator
from an unusual language (A) to another unusual language (B) could
be found and therefore documents in (A) needed first to be translated
into a more common language, the 20 day deadline still applied.
Sir Konrad suggested it would be possible to
abandon translation into all 23 languages, but this would be extremely
sensitive politically. The essence of EU law was that it was also
part of national law; it was therefore understandable that people
wanted it translated into their own national languages. He suggested
that it might be easier if the working language of the Court were
English, but that, politically, the one Member State who could
not make this suggestion was the UK.
Regarding the accusation of judicial activism and
the expansion of the Court's jurisdiction, Sir Konrad noted
that the Treaty calls for an "ever closer Union", and
that the Court took seriously its obligation to follow the Treaty.
The Court did not see itself as having a mission independent of
what the Treaties prescribed.
With regard to separate tribunals for intellectual
property or trade marks, Sir Konrad suggested it might work
if properly financed. Another possibility was the appointment
of additional specialist judges as part of the General Court.
From the point of view of the overall structure of the CJEU it
would need to be determined whether such courts should be truly
separate, as was the Civil Service Tribunal, or part of the General
Court. There would also be the issue of which court would deal
with appeals from the tribunal.
Sir Konrad hoped that, in the light of the new
Lisbon provisions, cross-border criminal proceedings could be
dealt with more quickly and effectively. He noted that there was
a tension between EU and national law in these matters. Overarching
EU principle governed the area, in order to ensure that the law
did not discriminate and was effective, but individual crimes,
and the appropriate procedure to deal with them, were largely
left to Member States. There were problems with the adherence
of some Member State judgments to EU law, and it was necessary
for the Court to provide a consistent interpretation of the provisions
of the Treaty. For instance, certain terms, such as "detention
in custody", needed to mean the same thing in all Member
Sir Konrad explained that many of the problems
for the Court arose upstream. The Court had to interpret legislation
which had been designed by politicians whose political priority
was the achievement of a formula, if necessary at the expense
of a clear formula. Where the original legislation was imprecise,
the Court was required to intervene. This was often the case with
Directives, but could also be seen in the Treaties themselves,
particularly in the Treaty of Lisbon's provisions for accession
to the ECHR.
Sir Konrad explained that the effect of EU accession
to the ECHR would depend on the terms of the accession. Before
an action could be brought in Strasbourg, all remedies in a particular
nation had to be exhausted. It would need to be determined what
equivalent principle would apply if the EU acceded. Sir Konrad
argued that it was important that EU bodies had a chance to rule
on a matter before it was taken to Strasbourg.
Evidence was taken from Nicholas Forwood, UK judge
at the General Court, Marc Jaeger, President of the General Court,
and Arnaud Bohler, Head of the President's Cabinet.
Mr Forwood described how in the early years
of the EEC cases brought directly before the ECJ related to competition,
trade, and staff matters. The Court of First Instance was established
in 1989 to deal with these direct action cases. These cases were
fact-intensive. Over time, there was an increase in the areas
giving rise to direct action: for instance, trade mark law was
originally harmonised by the 1989 Directive, and when national
courts faced it, they referred questions to the ECJ. But when
the Community trade mark was created in 1994, many cases could
be brought directly before the General Court. He speculated that
the creation of new agencies, such as the European Chemicals Agency,
would give rise to an increase in cases at the General Court.
The General Court was a judicial review court, looking
at factual and legal elements of decisions taken at a different
Mr Jaeger suggested that, while the Court had
no formal role in looking at draft legislation, it might be useful
to see impact assessments of the effect of proposed laws on the
courts. He pointed to the REACH regulation, where it was originally
predicted that 250,000 applications would arise. The most recent
estimate was that 2 million applications would be made. A proportion
of these would be challenged at the General Court, increasing
the workload. Mr Jaeger argued that it should be easier for
legislators to assess the potential for litigation provided by
their proposals than for the Court.
With regard to the recent decision by the Commission
regarding anti-competitive behaviour by European air freight carriers,
Mr Jaeger explained that, should the Commission's decision
be appealed, this would be dealt with by the General Court. Such
competition cases had traditionally been dealt with by the General
Court, along with other areas of broad economic interest such
as State aid. Because they often had elements which might spill
over into wider areas of EU law, it would be difficult to establish
a separate competition court.
Mr Forwood explained the procedure of the Court:
Pleadings were exchanged in sequence, rather than
simultaneously, as in preliminary ruling cases in the Court of
Justice. There were two rounds of pleadings. There was also more
scope for interventions from interested parties, which in turn
gave rise to procedural issues such as confidentiality.
There were now typically more than 100 distinct procedural
documents registered in an average GC case (competition or State
aid), i.e. an average of 33 steps per year for a three-year case:
this figure had increased in recent years. Case management had
become increasingly difficult as there was so much documentation
from interested parties. A total of 33,275 procedural documents
had been registered in 2010, relating to some 1200 pending cases.
After the written pleadings closed the reporting
judge produced a report for the hearing, which was a synthesis
of the principal documents received, and in parallel produced
a report for his colleagues on the merits and handling of the
case. It was at this point that the Court considered whether to
hold a hearing and how best to organise it. However, there had
to be a hearing in all substantive cases except trade marks (where
the judge and parties could decide to dispense with it) or appeals
from the CST.
Mr Forwood explained how the Court's judgments
involved not only an assessment of the facts and substantive merits
of the case, but also the need to produce a judgment consistent
with an ever increasing body of EU case law.
In contrast to the CJ, cases were referred to a particular
chamber immediately. In the CJ, where the Court had to give a
definitive answer on a point of EU law, it was more important
for all 27 judges to follow the case until a relatively late stage.
In the General Court, cases involved too many complicated issues
of merit and fact for all 27 judges to be expected to follow a
case in the same way as the CJ.
Mr Forwood explained why the use of specialised
chambers had been abandoned. The system had been first introduced
in 1999 to deal with trade mark cases. This was, at the time,
a new area of EU law with a large volume of work: in order to
achieve consistency of judgment in the evolving case law, all
trade mark cases were remitted to two of the then five chambers
of the Court. However, by 2003 the law in this area had become
more settled, and it had also become apparent that with specialisation
the Court risked losing its character as a general court combining
the expertise and traditions of then 15 (now 27) Member Statesthose
judges who sat in the specialised chambers would have reduced
possibilities to take part in other cases, and those from other
chambers would have been unable to contribute to trade mark cases.
Mr Forwood explained that the compositions of
the chambers were established at the beginning of each three year
mandate of the GC President. The President proposed a composition
of the chambers with the aim of spreading expertise among them.
The three members of each chamber would normally remain in that
chamber for the next three years.
Mr Forwood suggested that the solution to reducing
the problems with the GC's workload was the appointment of more
judges. This could be accomplished in two ways: (1) an increase
in the number of judges in the GC, or (2) the establishment of
a first instance court at a tier below the GC, rather like the
CST. The Treaty allowed for such courts to be established, and
they might be appropriate for dealing with trade mark cases.
With regard to the language regime, Mr Forwood
explained that not everything was translated into all 23 languages.
Unless a Member State intervened in a case, the case took place
in a single language of the applicant's choosing. If this language
was not French then the case would be translated into French,
the Court's working language. The judgment was then produced in
French and translated into the language of the casebut
only if the chamber decided it raised issues of general importance
would it be subsequently translated into all 23 languages. This
happened in around 60-70 % of cases.
Mr Jaeger explained that the pleadings contributing
to the report for the hearing were voluminous. In the Cement case,
there were some 40 applicants and the judgment was extremely long
Mr Jaeger explained that there was sometimes a delay in producing
translations quickly, due to the length of the documents involved.
However, he argued that this was of less importance in the GC
than in the CJ. GC judgments had a more specific effect than those
of the CJ, which dealt with fundamental aspects of EU law. It
was therefore more important for CJ judgments to be produced in
all languages at the same time.
Mr Forwood acknowledged that cases took longer
as a result of translation, but stressed that it was a necessary
part of the process. He argued that it was less of a delaying
factor than many people supposed as translation took up on average
only around 3 months (including both translation of the written
pleadings and of the judgment) of a case lasting 32 months.
The witnesses stated that while appeals were limited
to points of law there was no ability for the CJ to refuse leave
to appeal. Mr Jaeger reported that around 25-30% of General
Court cases went to appeal, with around 5% overturned by the Court
of Justice (so only less than 5% of appealable decisions were
totally or partially annulled). In 2009, in 85% of all appeals,
the decisions of the General Court were fully upheld by the Court
With regard to trade mark cases a much lower proportion
(ca. 17%) went to appeal. The proportion of appeals dismissed
summarily had also increased as trade mark law had settled down.
With regard to increasing the number of judges, Mr Forwood
explained that the Statute of the Court would have to be changed
by the Ordinary Legislative Procedure as Article 48 set down the
number of judges. The Court has not yet made such a request, but
in the 1990s had requested more judges from the Council. The Council
agreed in principle but could not come to an understanding on
how to allocate the six extra judges. In contrast, the mechanism
for appointing judges to specialised courts (such as the CST)
involved more flexible arrangements and was less likely to cause
a repetition of this problem.
Mr Forwood acknowledged that in the longer term,
some preliminary ruling jurisdiction might be given to the GCfor
instance in the area of trade mark law or competition. However,
even in such areas there was a risk of overlap with other areas
of law, as would be the case with taxation law impacting on freedom
It was noted that the last time the GC reduced its
workload, by sending cases to the CST, it merely inherited other
new cases from the CJ (i.e. those brought by Member States), so
was not in a better position as a result.
Mr Jaeger emphasised that the Court needed external
help in order to reform its procedures e.g. e-Curia. It would
be difficult for the Court to increase its speed without sacrificing
quality, which would merely result in an increase in appeals to
Civil Service Tribunal
Evidence was taken from Mr Paul Mahoney, President
of the Civil Service Tribunal.
Mr Mahoney provided the Committee with a paper
based on a talk he had recently given regarding the use of specialised
He reported that most people thought that the CST
had been a success, and that the advantages of a small tribunal
had outweighed the disadvantages. He explained that there was,
though, no consensus within the CJEU as to whether a third tier
of tribunals was necessary, or as to whether such tribunals allowed
proceedings to progress more quickly. Broadly, there appeared
to be more enthusiasm for such tribunals within the General Court
than within the Court of Justice.
In the CST, judges had one référendaire,
as opposed to three in the Court of Justice, but each judge managed
to deal with a similar workload.
Mr Mahoney said that a new specialised tribunal
could be established along the lines of the CST. The CST had seven
judges, which was enough for its purposes. He speculated that,
for instance, a specialised competition court would not need to
have a full set of 27 judges.
Appeals against the CST, on points of law only, went
to the General Court. Were other courts to be established, the
General Court might take appeals on points of fact as well. However,
there was a risk that this might result in two strands of case-law,
with one strand going through the specialised court and the General
Court, the other going via preliminary references to the Court
of Justice. For this reason consideration would need to be given
to appeals going to the Court of Justice rather than the General
A major difference between the CST and other proposed
specialised courts was that the cases of the CST were "cuisine
interne", i.e. they related only to the functioning of
the European institutions, and had no wider ramifications.
Mr Mahoney reported that, when the Tribunal
was first established, there were a number of appeals against
its judgments, testing the vulnerability of the Tribunal. A similar
phenomenon had occurred when the General Court (then, the Court
of First Instance) had been set up, but in both cases this had
trailed off in time.
He reported that sometimes the GC overturned the
verdict of the CST for one reason or another, sometimes it upheld
the judgment, but changed the reasoning.
Mr Mahoney described how the practices of the
Tribunal had originally been challenged on the grounds that it
was being too "activist". The style of cross-examination
in the Tribunal was more thorough than people had been used to
in the other CJEU courts.
The Tribunal did not look at the merits of disputes
(for example, whether somebody should have been promoted) but
only the law, except in cases where there had been a manifest
error on the merits.
Mr Mahoney explained that only individuals covered
by staff regulations could bring a case to the CST. Those staff
members could not represent themselves, and had to be represented
by a lawyer. Unions had to go to the General Court with cases
of more general character; seconded national civil servants could
not take cases to the Tribunal, as they were not covered by the
Mr Mahoney described the normal order of proceedings
in a case:
1. A staff member makes an application to the Tribunal.
2. The staff member chooses the language in which
the case is to be heard; the institution responds to the application
in that language.
3. The Tribunal makes a decision on admissibility.
4. The defendant has two months to reply in writing
to the application. There is one round of written pleadings as,
by that point, the parties will have exhausted all administrative
5. After a meeting of the relevant chamber, the judge
rapporteur gives an opinion.
6. If the case is not thrown out at this point, there
is a hearing. Each party has 20 minutes, then there is an hour
of questions, followed by 10 minutes of summing up.
7. The chamber of judges then discusses the case
immediately after the hearing. This is in contrast to the Court
of Justice, where such discussions take place after the Advocate
General has presented an opinion, often months later.
8. A text of the final judgment is produced and translated.
Because the judgments of the Tribunal had no wider
effect in Member States, they did not have to be translated into
all 23 languages. However, this made access to the case-law problematic.
There was always a version in French, as the working language
of the Court, but translations into other languages depended on
the language in which the case was brought.
Therefore the entire case-law of the Tribunal was available only
The CST could get away with not translating its judgments
because they had no wider implications, but this would not be
the case for another area of law, for instance intellectual property.
Mr Mahoney explained that the CST was based
on classic French administrative law and could award unlimited
compensation. It could annul decisions taken by the institutions,
but could not direct them to act in a particular way.
Member States could occasionally intervene in cases.
Notably, Italy and Spain had intervened in cases relating to the
language regime of the institutions. Because applicants for positions
in the institutions needed to speak one of English, French and
German, it was perceived that citizens of other Member States
were at a disadvantage. Italy and Spain had challenged this in
the General Court, and intervened in certain cases where their
citizens were involved.
Mr Mahoney noted a certain fragility of the
Tribunal in relation to its small roster of judges. If one of
the seven were ill, or unavailable for another reason, that had
a greater impact on the CST than it would on a larger court. Mr Mahoney
suggested that this could be overcome by drafting in retired ECJ
judges on an ad hoc basis, but this would require a change in
Statute of the Court which would need to be enacted by the Ordinary
Legislative Procedure. The Court of Justice was responsible for
the overall structure of the CJEU, but the Tribunal was able to
initiate changes by sending proposals to the CJ.
On timings, Mr Mahoney explained that CST judgments
had to be executed immediately by the relevant institution. However,
were the institution to appeal, it would normally take around
two years for the General Court to rule on the appeal. It was
not possible to refuse leave to appeal, as it was regarded as
almost a right, due to the influence of French administrative
There might be a temptation for specialised courts
to go their own way, and for this reason it was important that
parties were able to appeal to a more general court.
Mr Mahoney explained that the Tribunal had 200
cases pending. It had inherited 122 from the General Court when
it had been established, and had been receiving all the new cases
in the area since then. He reported that the Tribunal was slowly
reducing the backlog.
There were fewer cases coming through for two reasons:
(1) There had been a reduction in the number
of cases brought, as the rules on costs had been changed. Previously,
staff would not have to pay the costs of the institution, even
if they lost. The regime had been changed so that the loser paid
all the costs, and this had reduced the number of cases. Mr Mahoney
pointed out, though, that the costs of bringing a case were not
high. The Commission, for instance, used its Legal Service in
such cases, so did not have to pay for outside lawyerstypically,
a losing litigant would pay costs amounting to about 250-400.
Other institutions, for instance the European Investment Bank
and European Central Bank, used outside lawyers, and in these
cases the costs would be 6,000-10,000.
(2) Lord Kinnock, in his time as a Commissioner,
changed the staff regulations, resulting in a substantial amount
of litigation. The effect of this had now worked through the system,
and the levels had reduced.
In relation to changing the rules of procedure of
the CJEU as a whole, Mr Mahoney described the process as
cumbersome, as it had to be decided by the Ordinary Legislative
Procedure. While he could accept Member State oversight of the
CJEU, he pointed to a conflict of interests in that the Member
States are often parties to cases. Mr Mahoney argued that
the rules should have general enabling clauses to allow the CJEU
to adapt its procedures where necessary.
Mr Mahoney pointed to differences between UK
and EU employment tribunals. The CST undertook a lot of the work
in writing in advance of any hearing. Parties would submit papers,
which the CST would then question. Though it was possible for
the CST to question witnesses, this was never used. Because of
this, the CST had less grip on the facts of a case. Occasionally,
a case would be annulled on procedural grounds if the facts were
unclear. This at least had the advantage of speed.
199 Mr Jaeger showed the Committee a copy of the judgment,
which ran to over 1000 pages. Back
Annual Report 2009, Table 17, p 181. Back
Mr Mahoney explained that in the first year of the Tribunal's
operation, 85% of cases were brought in French; in 2010, this
figure was 60%. Back