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


My submissions are confined to the Court of Justice, before which I formerly appeared as counsel (representing the UK in over 50 cases) and in which I now serve as an Advocate General.

1.  Questions identified in the original call for evidence

1.1  What are the significant issues highlighted by the statistics relating to the past and current workload of the Court of Justice, the General Court and the Civil Service Tribunal?

Please see the Court's answer dated 28 October 2010, submitted by the Registrar to the Committee under cover of the letter dated 29 October 2010.

1.2  Are the turnaround times for disposal of cases comparable to other courts of equivalent standing?

Please see the Court's answer dated 28 October 2010.

I would emphasise the point made at paragraph 16 of that answer, namely, that it is rather difficult to identify any true comparator (i.e. 'other courts of equivalent standing') to the EU courts. National supreme courts do not have to deal with litigation in 23 official languages (implying both translation of all written pleadings from the original into a common unofficial working language and translation of official court texts—opinions and judgments—into 23 authentic versions). Other international courts, whilst multi-lingual, still do not have such a wide range of equally authentic languages in which the totality of their procedure may be conducted. Nor do they have to write and translate judgments that will take immediate effect in the legal systems of 27 Member States, each with its own legal culture and traditions.

It is trite to observe that the EU is a sui generis legal order. Nevertheless, that has to be borne in mind when assessing the operation of the EU's judicature.

1.3  Are the turnaround times for disposal of cases acceptable to litigants?

Please see the Court's answer dated 28 October 2010.

I think it is fair to say that the recently-created urgent preliminary ruling procedure (known within the Court and often outside by its French acronym, 'PPU'—'procédure préjudicielle d'urgence'), under which answers to urgent queries relating to the Area of Freedom, Security and Justice ('AFSJ') have consistently been given to the referring court in under three months, is recognised as working well so far. However, please see further my answer to the next question (1.4).

1.4  What considerations, both from the recent changes brought about by the Treaty of Lisbon and otherwise, are likely to affect the workloads of these courts and to what extent?

The Court's answer dated 28 October 2010 identifies a number of significant changes.

The single change most likely to increase the Court of Justice's workload is the extension of the right to make references that are likely to require PPU treatment (i.e. in matters involving the AFSJ) to all courts and tribunals. Previously, only 'final' courts could make such references, which acted as a natural filter. Thus far, the PPU has been triggered relatively seldom; and the Court has managed to deal with each PPU expeditiously without that impinging significantly on its handling of its normal case-load. No very great exercise of the imagination is required to see that matters would probably be rather different if the Court were to receive (say) 50 requests per year for PPU treatment, rather than less than 10 requests per year.

It is also clear that, historically, it takes a little while from accession for practitioners in a 'new' Member State to realise that EU law can be deployed to assist their clients and for the courts of that Member State to start to make references for a preliminary ruling to the Court of Justice. There does not appear to be any 'normal' number of references per Member State. Some Member States' courts refer often, others seldom. What can be said, however, is that the Court is now starting to see an increase in the number of references coming from the Member States that acceded in 2004 (10) and 2007 (2).

1.5  Will accession by the EU to the ECHR affect the working of these courts?

In a word, yes. What is much less easy to predict is, precisely how. To a significant extent, that will depend upon the detailed terms upon which such accession is negotiated.

1.6  What are the significant challenges and impediments to the courts in handling their workload effectively and expeditiously?

The Court of Justice operates with a language regime of 23 official languages and a procedural framework in which all Member States are privileged litigants who can intervene in any procedure in their own language(s). This is a simple fact of life. Its consequences are immensely far-reaching. Certain parts of the total time taken by a case cannot be shortened by the Court improving its working methods. By way of illustration: in the procedure for dealing with a reference for a preliminary ruling, translation time is required (a) to translate the order for reference into all 23 languages and notify it to the Member States and EU institutions; (b) to translate the written observations lodged by any Member States that choose to intervene[202] into the Court's working language (French) and also, where necessary, into the language of procedure for the benefit of the parties; (c) to translate the report for the hearing into the language of procedure and notify it to the parties; (d) to translate the Advocate General's opinion, if one is given, into both French and the language of procedure,[203] (e) to translate the judgment (drafted in French) into all languages.[204]

1.7  Are there any bottlenecks in the processes of these courts?

As I have indicated, an appreciable increase in the number of references requiring treatment under the PPU has the potential to create a bottleneck in the handling of other cases. That is because the same judges and advocates general handle PPUs as handle ordinary cases.

The need for translation creates points in the processes where time is necessarily spent not on case-handling per se, but on waiting for the file to reach a state where it can be picked up again and moved forward. In my view, it is slightly misleading to describe this as a 'bottleneck' when it more closely resembles a long conveyor belt. However, whatever be the appropriate simile, in a multi-lingual court the need for translation is a fact of life.

The Court is currently engaged in a complete review of its rules of procedure (any changes suggested will, however, need to be approved by the Council: please see further the answer to question 2.1 below). We hope that will help to cut out any procedural minutiae that have proved unnecessary and to streamline the various procedures further. Frankly, given the structural constraints (language, heavy reliance on written procedure requiring translation,[205] Member States' privileged status as interveners) which are, realistically, immutable, I do not believe that there is much scope for making a further radical reduction in the average time taken to process cases at the Court of Justice.[206]

Members' mandates are for six years. Every three years, there is therefore a partial renewal of mandates (half the judges and half the Advocates General). In order to ensure that judicial business is handled without interruption, it is important to know who is being renewed and who is likely to be replaced; but Member States do not always communicate this information to the Court until rather late in the day. This can create a temporary bottleneck (please see further the answer to question 2.7 below).

1.8  What measures would improve the working of the courts, bearing in mind the limited possibility of Treaty change?

Others will have addressed this issue. I limit myself to one suggestion that relates closely to the work of the Advocates General at the Court of Justice.

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 (as promised in the Declaration ad Article 252 TFEU),[207] which would give the Court necessary additional manpower. The ratio between Judges and Advocates General was 15:8 in 2003. It is now 27:8. Approximately 52% of cases now proceed to judgment without an opinion. That figure encompasses both cases that indubitably do not require an opinion (for example, a simple direct action brought by the Commission against a Member State involving a failure to transpose a directive on time, decided by a chamber of three judges) and other cases, important enough to be decided by a chamber of five judges, where the decision not to have an opinion may fairly be described both as more marginal and, to some extent at least, influenced by the knowledge that 8 Advocates General can only, with reasonable despatch, write a certain number of opinions in the course of a given year.

I emphasise that this is a personal view, based partly also on the fact that the Court has received a number of complaints about cases (particularly tax cases) which have been decided without an opinion. The arguments raised are essentially that, where the issues are complex, an opinion is a necessary component in the EU judicial process; and that judgments without opinions are harder to understand and often lead to further references being made to seek clarification.[208]

If it is not deemed desirable to increase the number of Advocates General, the wording of Article 20 of the Statute (which now reads 'Where it considers that the case raises no new point of law, the Court may decide, after hearing the Advocate-General, that the case shall be determined without a submission from the Advocate-General') should, I think, be changed so as to reverse the default value from 'opinion' to 'no opinion' (thus, into 'Where it considers that the case raises a new point of law, the Court may decide, after hearing the Advocate-General, that the case shall be determined with a submission from the Advocate-General'). However, from the perspective of ensuring consistency, coherence and clarity in the Court's case-law, this would not be my preferred solution.

1.9  What could the Institutions and Member States do to help the Courts dispose of cases more expeditiously?

The quality of the orders for reference made by national courts (in preliminary rulings) and of the written and oral submissions to the Court (in all procedures) has a very significant impact on the speed and quality of the judicial process. Some are exemplary. Some are, frankly, appalling. Much time is sometimes spent poring over deficient submissions, trying to piece together missing background material or pin down what (exactly) the national legislation says in order to understand such fundamental issues as how national law and EU law interact (and thus what the problem before the national court actually involves), or why Member State X might reasonably be advancing a particular point of view.

Improving the quality and consistency of the submissions made to the Court would have a significant impact on the Court's ability to dispose of cases more expeditiously. The Court can and does offer guidance (available via the website) but is understandably reluctant to issue uniform binding rules regulating, in detail, how precisely lawyers from 27 different Member States should plead cases before it.[209]

2.  Suggested Questions for the Court of Justice (8 and 9 November 2010)

2.1  In your submission you advocate procedural autonomy. If you were given this what would be the priorities for immediate change?

I agree that it would be desirable for the Court of Justice to have a greater degree of control over how it manages its own work (as other supreme courts generally do): currently, any change to the Court's rules of procedure has to be approved by the Council. As to what changes it would be desirable to propose, the Court is—as I have indicated in my answer to question 1.7 above—in the process of revising its rules of procedure. Since I sit on the Court's Rules of Procedure Committee, it would be inappropriate for me to put forward any separate proposals at this stage.

2.2  The Treaty provides for the General Court to be given a preliminary reference jurisdiction. Should this be done and if so what cases would be suitable?

Given that two of the principal issues often raised in respect of references are (a) the need to get a swifter reply to the national court and (b) the importance of ensuring uniformity of interpretation (and hence of application) of EU law, I do not think that the possibility offered by this Treaty provision should be activated in the near future.

First, the General Court has, at the moment, rather greater difficulties than the Court of Justice in terms of workload and average length of procedures. Adding a category of cases to its workload (references for a preliminary ruling) that by definition requires to be handled expeditiously does not make sense.

Second, although in theory the subject-matter of certain categories of references—or example, customs classification cases, social security cases and requests for interpretation of the rules governing the common organisation of the market in a particular agricultural sector—lends itself to 'ring-fencing', and those categories could thus be transferred to the General Court, such cases have—historically—shown themselves quite capable of raising issues of principle that go well beyond the boundaries of their 'technical' subject-matter. It would therefore be necessary to have some mechanism whereby (a) cases that raise such issues do not get routed to the General Court, but remain with the Court of Justice; and/or (b) if the true nature of the case becomes clear only as it evolves, either the General Court relinquishes jurisdiction of its own motion or the Court of Justice has power to call the case in and decide it itself. However, such a mechanism can—by definition—only work if someone has the responsibility of exercising the necessary continuing surveillance to ensure that cases are handled where they should be handled. That begs the question: whose job is it going to be? Here, as elsewhere, it must be borne in mind that the EU court system works in 23 official languages, with unofficial translation into French as the internal working language of the institution. Thus, many of those reading any document will be reading in a language which is not their mother tongue and in which, accordingly, they work less fast. Effective surveillance will have a cost, in terms of time and resources, that may be significant.

Finally, I recall that—as with the possibility of review of decisions of the General Court on appeal from the Civil Service Tribunal—such a transfer of jurisdiction would carry with it the possibility that the General Court's decision could be reviewed if necessary by the Court of Justice. The 'gatekeeper' to the procedure is the First Advocate General, inasmuch as it is his recommendation for a review that leads the Court of Justice to decide whether or not a review is needed. The experience of the last five years applying this procedure to General Court decisions on appeal from the CST has not been particularly encouraging.[210]

Against that background, transferring jurisdiction for particular categories of references would be of dubious benefit.

2.3  Should the Court of Justice be dealing with technical references, for example in the fields of customs and VAT, or direct actions against Member States which do not raise issues of constitutional significance?

The short answer is that hitherto the Court of Justice has not been a court whose role has been confined to dealing with 'issues of constitutional significance'. Rather, its function (as conferred by the Treaty) has been to ensure that in the application and interpretation of everything to do with EU law, 'the law is observed'.

The so-called 'technical areas' are often matters of considerable complexity, whose resolution one way or another is likely to have a significant economic impact. A 'technical' question may also raise a related question of constitutional principle (such as the extent of direct effect, efficacy of enforcement or recovery of damages against a Member State).[211] It is in practice impossible to separate the technical aspects and the constitutional aspects of such an action. Possible ways of doing so, with monitoring/review/power to 'call in' a case if it proves unexpectedly difficult or important have been canvassed and examined by informal discussion groups and working parties within the Court since I joined in 2006; and have been rejected (primarily, because they were considered to be either impracticable or ineffective).

A separate question is whether, within the Court of Justice, there should be a greater degree of specialisation (so that, for example, tax cases would go to a tax chamber; agriculture cases to an agricultural law chamber, and so on).[212] Historically, one of the strengths of the Court has been that it has been full of generalists who turned their hand, as required, to each specialist topic. Moving across to a different arrangement might jeopardise that overview. Avoiding that outcome would probably require either an increase in judicial manpower or a further modification of the selection process (so as to recruit Members who were knowledgeable both about EU law as a whole and about a specialist area within EU law). It would also have quite sensitive implications in terms of the existing procedures for appointment to the Court (it is difficult to see how a Member State could be told that it 'had' to send a Judge or an Advocate General with a background in—for example—criminal law, or immigration, or social security).

2.4  Commentators and witnesses to our inquiry have suggested that in some areas of EU law, for example technical areas or in relation to the Area of Freedom Security and Justice, there is not the need for the same strict uniformity of interpretation as the ECJ achieved in the past. What is your view?

I am afraid that I disagree categorically with that suggestion.

Precisely because the answer to a question referred in respect of one of the so-called 'technical areas' often has a significant economic impact, it is extremely important not to allow a situation to develop in which the single market is undermined by variable interpretations by different national jurisdictions. Just as within the confines of a single Member State interpretation by a supreme court ensures uniformity of application in a way that is cost- and resource-efficient, so it is with the function performed by the Court of Justice in the context of the EU. As already indicated (see my answer to the previous question), a 'technical' question may also raise a related question of constitutional principle, to which a single uniform answer must necessarily be given.

The AFSJ is an important new area of EU law, where a number of key decisions of principle will need to be taken over the next few years. Quintessentially, questions will be raised involving fundamental rights and individual freedoms and the parameters of State power. The legal provisions at issue must be interpreted uniformly if there is to be any legal certainty and predictability for persons exercising rights of free movement within the European Union. The fact that the questions may also be sensitive is no reason for departing from that basic principle.

2.5  Does the pressure to allocate cases to small chambers affect the consistency of Court judgments?

I am not sure that the term 'pressure' is correct. The reality is, rather, that the Court is conscious of the scale of its workload and seeks to allocate cases to the size of chamber that is appropriate to the case's complexity. Allocating a case (where this is sensible, in case-handling terms) to a chamber of three judges, or a chamber of five judges, rather than to the Grand Chamber, represents a significant saving in judicial manpower.

As to whether the consistency of the Court's judgments is affected adversely as a result, my answer would be, 'occasionally, yes'. Here, I would make a distinction between the chambers of three judges and the chambers of five judges. The former have in the past generally dealt with the simpler cases; and—to my knowledge—no real problems have arisen. The latter deal both cases that are a little too complex to be handled by a chamber of three, and with cases that are only just 'not worth' the Grand Chamber. I suspect that everyone who follows the Court's case-law closely has their own pet examples of divergent decisions by different chambers of five judges.[213]

2.6  Is it necessary that judges experienced in the legal system of the state relevant to the case or in the subject matter at issue are involved in each case? If so, how could this be achieved?

I am not convinced that, in practice, the former has often proved a problem. Normally the Member State concerned intervenes and explains (in writing and later orally, if a hearing is held) the niceties of its legal system. Members of the formation of judgment (in particular, the Reporting Judge) and the Advocate General often ask questions precisely in order to elucidate such detail. However, if it were thought desirable, the rules of procedure could be amended so that, in this respect, they mirrored those of the European Court of Human Rights and guaranteed that the judge from the Member State whose court had made the reference would always be part of the formation of judgment.

So far as the latter is concerned, national traditions differ as to whether it is considered desirable to be able to adjust the composition of the formation of judgment hearing a case, so that those judges sit who have a particular expertise in the subject-matter, or whether, on the contrary, this comes dangerously close to violating the principle of the 'juge légal'. It might also give rise to significant organisational difficulties. On the possibility of creating specialist chambers within the Court of Justice, please see the answer to question 2.3 above.

2.7  You have highlighted two bottlenecks, the process for the replacement of judges and translations. What are the potential solutions?

For the former: that Member States should let the Court know as soon as possible whether or not they intend to re-nominate an incumbent. By way of illustration: an Advocate General who does not know whether he is being renewed cannot agree to sit in a case with a hearing much later than early April and guarantee that the resulting opinion will be written, translated and presented before 6 October, the date on which, if not renewed, he will leave the Court. A judge sitting in a case with an opinion might find that he had to drop out before judgment was given. To guard against the formation of judgment becoming inquorate, either he cannot be used after a certain point or additional judges must sit as well to guarantee that the quorum will be maintained, which is inefficient.

For the latter (which I do not regard, strictly speaking, as a bottleneck): the possible solutions are either politically unacceptable (changing the language regime so as to reduce the number of official languages used during the procedure and/or to fail to make available the texts of opinions and judgments that have an impact on the case-law in all official languages)[214] or, at the very least, unpleasant (greater or lesser constraints on the length of orders for reference and all written pleadings, suppression of replies and rejoinders in direct actions save in wholly exceptional cases).

There are those who regard hearings and/or an opinion from the Advocate General as further unnecessary bottlenecks. My impression is that 'users' of the system—particularly those from the common law tradition—tend to find that, properly focussed, both are rather useful.

2.8  To what extent can modern technology assist the Court in dealing with cases efficiently?

Modern technology is already being used to assist the Court in many aspects of its work, from the various (excellent) internal databases used for legal research and to facilitate case-handling to the computerised material available to the lawyer-linguists to ensure rapid and consistent translation of the extracts from EU legislation that appear in orders for reference or in pleadings. The E-Curia project for lodging and notifying documents electronically (currently being tested by the Court's Registry in collaboration with Member States and the EU institutions prior to general release) is a further illustration.

2.9  Practitioners in particular call for procedural reforms to limit translations, to promote robust case management, to make greater use of a focussed oral procedure, and to improve the dialogue between the Court and the parties. What is your view?

My sense is that limiting the length of written submissions (length being what determines the time needed for translation) is unlikely to be welcomed/accepted by Member States (who control the Court's rules of procedure: see my answer to question 2.1 above). I am unclear as to precisely what more 'robust case management' would mean. To the extent that the Court routinely refuses permission for a reply to be lodged in a direct action if one is not really needed, puts specific questions to the parties for written answer after it has read and analysed the pleadings, and tries to dispose of cases by reasoned order rather than by judgement where possible, such case management already exists. The Court likewise already makes use of its power (a) not to hold a hearing in certain circumstances, (b) to ask the parties (where there is a hearing) to concentrate their oral pleading on certain points or to deal only with certain questions.

It is not, however, possible to legislate for dialogue between the Court and the parties—both sides must be prepared to cooperate. In my experience thus far since joining the Court in 2006, that has not always been achieved in every case. By that I mean no more than that the different legal cultures within the EU do not all have the same traditions in respect of such issues as how to plead a case (in writing and orally), whether there is a positive obligation to identify all relevant case-law and deal with it, the degree of preparedness to field questions from the bench at a hearing—or, indeed, how the bench should ask questions.

2.10  In the past we have looked at (and discouraged) the possibility of a separate competition court and now there are calls for a specialist trade mark or intellectual property court. What are your views on these suggestions? Should such courts have jurisdiction to deal with preliminary references?

By way of background, I note that a request for an Opinion is currently pending before the Court (Opinion 1/09) in respect of the proposal to set up a body of courts/boards of appeal outside the framework of the Court of Justice of the European Union (qua institution) to deal with a future EU patent regime. I take the question to refer, rather, to the possibility of setting up a specialist court (or courts) below the General Court (at the same level, therefore, as the Civil Service Tribunal).

Please see my answer to question 2.2 above, together with Annex II below, for a description of the difficulties associated with the present arrangements to ensure coherence and uniformity through a review procedure. Those difficulties would only be exacerbated if further specialist courts at the same level as the Civil Service Tribunal were to be created without some radical change to that review procedure.

In respect of the suggestion that jurisdiction to deal with preliminary rulings should be transferred to such courts, please see the second and third points in my answer to question 2.2 above (which would apply a fortiori to a transfer of such jurisdiction not to the General Court, but to such other specialised courts).

2.11  To what extent can Member States, other institutions or litigants and their representatives, assist in helping the Court meet the challenges it faces?

Please see my answer to questions 1.9 and 2.9 above.

Annex I

A comparison of the normal reference procedure and the PPU

In creating the PPU, the Court of Justice was faced with a conundrum. How could PPU cases (a) be given urgent treatment and be decided very rapidly whilst (b) allowing all Member States to exercise their rights as privileged interveners and (b) respecting the 23 language regime?

The solution adopted is to permit only those who can use the language of procedure (the parties, the Member State concerned and the Commission) to lodge written observations, normally within 10 working days (instead of the usual 2 months). Meanwhile, the order for reference is translated into all other languages so that the other Member States know what is at issue and can decide whether to intervene. A hearing is listed within about three weeks. In the meantime, the (short) written observations are translated into the Court's unofficial working language (French) and are made available to the Member States in that language and the original.

Thus, a lot of time is gained at this stage, in comparison with a normal reference. The cost is twofold. First, there are no written submissions from other Member States and the written material on the case is rather exiguous. Second, both the Reporting Judge and the Advocate General will do a lot of additional work before the hearing, trying to pin down the issues and pre-drafting (respectively) a first version of the draft judgment and the draft statement of position ('prise de position'), in the knowledge that everything may change radically as a result of the hearing.

At the hearing (which will last significantly longer than a normal hearing), Member States that intervene can make oral submissions but cannot put in anything in writing. In practice, therefore, they often try (literally) to read out loud at the hearing the detailed (written) submissions that they would otherwise have lodged (thus putting an enormous burden and responsibility on the interpreters, who will have invested heavily in trying to prepare for the unknown). It is also quite a tiring process for the Court to listen to what would have been written submissions delivered through interpretation (sometimes, through a relay, e.g. Lithuanian to English, and then English to Portuguese).

Following the hearing, both the Advocate General and the Reporting Judge are under intense pressure—the former, to produce his statement of position (revised or sometimes entirely rewritten in the light of the hearing) within 48 hours; the latter to submit a draft judgment to his colleagues for deliberation so that the text can be deliberated, finalised and translated for delivery within (if possible) a couple of weeks of the hearing.

Experience shows that the Court can manage to do this. It will also be evident that some (not insignificant) disruption of normal work is inevitable, for everyone concerned (the judges, the Advocate General, translators, interpreters, the Registry). Member States dislike being put under pressure to write briefly and quickly (if they are the Member State from which the reference comes). They dislike even more being unable to lodge written observations and having instead to put their submissions orally. The procedure works as a technique for reconciling the irreconcilable (as I indicated at the beginning of this Annex). I find it difficult to conceive that it would ever be accepted as a substitute for the normal procedure in normal references. If it were, the number of cases that the Court could handle in any year would decrease sharply, because every PPU is much more demanding of resources within the Court than a normal case.

Annex II

The review procedure—experience of the review of staff cases decided by the General Court on appeal from the Civil Service Tribunal

One of the innovations brought about by the Treaty of Nice was the possibility for specialist tribunals to be created, from which an appeal lies to the General Court. As a safeguard to ensure uniformity of interpretation, however, an additional mechanism was introduced whereby, following a recommendation by the First Advocate General, the Court of Justice may (exceptionally) decide to review the General Court's decision if it considers that that decision represents a serious threat to the coherence and uniformity of EU law. Obviously some such safeguard mechanism is essential if coherence and uniformity are to be guaranteed.

What this means in practice is that, in addition to dealing with his own one-eighth of all cases and allocating cases between Advocates General in parallel with the President's allocation of cases to reporting judges, the First Advocate General has to review every single judgment and order of the General Court relating to a staff case originally dealt with by the Civil Service Tribunal, decide whether or not to recommend a review and (if so) write a reasoned analysis of why a review is necessary, all within a fixed time-frame (1 month). It is not unusual for multiple judgments or orders to be issued just before Christmas and again before the summer break. Should the First Advocate General recommend a review, the Court of Justice is then required—again, within one month—to decide whether or not to proceed with such a review.

The procedure is cumbersome and time-consuming. It raises obvious issues about whether, if there is a review, the same Advocate General and a composition of court including judges who participated in the decision whether or not to conduct a review may deal with the case, or whether the review should be handled de novo by a completely different bench assisted by a different Advocate General. It is a very resource-inefficient procedure. I know that I am not alone in hoping devoutly that further specialist tribunals at the same level as the Civil Service Tribunal will not be created, unless this mechanism is, at the same time, radically overhauled.

The Treaty of Nice envisages that, should certain categories of references for a preliminary ruling be transferred to the General Court, a procedure that is in all material respects identical to this existing review procedure should come into effect so as to ensure that the General Court's decisions should be open to review by the Court of Justice. Any such transfer of jurisdiction would indeed have to include some review mechanism to guarantee coherence and uniformity. However, the last five years' experience of reviewing staff cases decided by the General Court on appeal from the CST has shown that the existing procedure is burdensome for the First Advocate General (indeed, denaturing his normal role as a Member of the Court) and creates appreciable additional work for the Court of Justice as an institution. Taken in conjunction with other factors identified in the main text, that experience strongly suggests that transferring jurisdiction for categories of references for a preliminary ruling to the General Court—unless the review mechanism were, at the same time, radically overhauled, would not be sensible.

202   They have 2 months in which to do so. Back

203   The opinion will, in due course, be translated into all languages; but it is standard practice to require only the versions in French and the language of procedure to be available before the opinion is formally delivered. In the PPU, the Advocates General have all agreed to deliver their statements of position in French, precisely in order to save on translation time, even though this creates certain difficulties and imposes additional constraints. Back

204   The suggestion advanced by the Law Society, that all judgments be drafted in the appropriate language of procedure, would require a degree of linguistic mastery which I am afraid no single member of the Court possesses (still less, all of us!). It is quite difficult enough to express legal reasoning in a working language (French) that, if one is lucky, is one's second language (as is my case). If one is less lucky, the working language may be the Member's fifth language (after, for example, mother tongue, Russian, English and German). Judges have to deliberate and amend a draft text in a language that they share. If the text originated in one of 23 languages, it would presumably be produced by the judge whose language that was (who would therefore have automatically to be part of the formation of judgment-not the present procedure). Once that had been done, however, it would still have to be translated into a common tongue to be deliberated upon and at that stage the text would have to be covered by the 'secret du délibéré' (i.e. it would be confidential, and all exchanges concerning it would have to be treated as such). Even if the necessary reiterative confidential translation could be arranged, the effect would not be to speed up the Court's processes-rather the reverse. Back

205   Reliance primarily on written procedure is partly a function of the civilian legal tradition, partly a reflection of the fact that, within a linguistically complex judicature, it is easier to grasp legal argument if one has a chance to study it calmly in writing rather than trying to follow it-often through simultaneous interpretation-orally at a hearing. Please see Annex I for a comparison of the PPU procedure and the normal procedure in this respect. Back

206   The Court has made good use of the additional judicial manpower that it received as a result of the 2004 and 2007 accessions, coupled with a number of internal changes to working practices, to reduce the backlog of cases pending before it (particularly, references for a preliminary ruling). Please see the Court's answer dated 28 October 2010. Back

207   Currently each Advocate General handles one eighth of the Court's total case-load. Each case in the Advocate General's docket is studied (not merely the cases in which a public opinion is prepared). The full file in every case that proceeds to judgment without an opinion, or that is disposed of by order, has therefore also been analysed in detail and suggestions made as to it should be handled. Back

208   See, for example, the Opinion Statement of the CFE [Confédération fiscale européenne] on ECJ Advocate General Opinions in Tax Matters, available at 

209   Thus, the rules of procedure specify such matters as the minimum content for an application, but leave the detail to the individual practitioner. Individual Member States could however take the initiative, via appropriate training programmes, to improve the quality of what they themselves lodge. They could also encourage the relevant professional bodies to provide practical information to their members who represent individual litigants as to how to make their pleadings more helpful and effective. (I personally would be happy to take this point further in a UK context, if I were asked to do so.) Back

210   Please see Annex II for a more detailed explanation. Back

211   See, for example, Case C-91/92 Faccini Dori [1994] ECR I­3325 (consumer protection in distance selling) and compare Case C-194/94 CIA Security International v Signalson and Securitel [1996] ECR I-2201 (notification of technical standard) (both cases concern the extent of direct effect), Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835 (interpretation of technical rules on calculation of 'working' time) (efficacy of enforcement of rights under EU law) and Joined Cases C-6/90 and C-9/90 Francovich [1991] ECR I-5357 (technical interpretation of directive on employees' rights if their employer becomes insolvent) (availability of damages against a Member State). Back

212   Informally, this happens to some extent within the present system, inasmuch as similar cases in a series are often, for a time, allocated to the same Reporting Judge and/or the same Advocate General so as to reap the benefits of acquired knowledge. At a certain point, however, a different 'team' of Reporting Judge and Advocate General will take over and do further cases in the series, so as to avoid the risk of over-specialisation and inflexibility of approach. Back

213   An illustration might be the rather different interpretation of 'individual concern' in Case C-125/06 P Infront (Fourth Chamber) and in Case C-362/06 P Sahlstedt (Second Chamber). Coincidentally, the cases had the same Advocate General (Advocate General Bot), whose two opinions are, unsurprisingly, consistent with each other. Back

214   The Court already operates a system whereby cases that are not intended for publication in the official court reports because they are not considered to alter/develop the case law are made available on the Court's website only in the languages that are available (normally, as a minimum, the language of procedure and French). They are not translated into all languages. Back

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