A change of court
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8 July 2013
Justice delayed is justice denied. Reform of the European Community's judicial system is urgently required. The volume and complexity of European Community (EC) cases is growing rapidly, causing the community's court system to haemorrhage. There is already an average of a two-year delay for preliminary rulings. The case then returns to the national court, resulting in more delays for litigants. And things will only get worse when the enlargement of the European Union occurs.
The EU member states sought to redress this problem in the Treaty of Nice. In the treaty, provision is made for the Court of First Instance (CFI) to have the jurisdiction to hear some categories of preliminary rulings. These areas are to be determined and set out in the Statute for the Court of Justice. Although the CFI will have jurisdiction to hear preliminary rulings for the first time, the European Court of Justice (ECJ) will retain the power to review cases where the unity or consistency of community law is at serious risk.
On the other side of the court's docket, in an attempt to address the number of direct actions, the treaty provides for the creation of judicial panels. It is intended that these will be first instance bodies that will hear cases in specialised areas. the Honourable Judge Nicholas Forwood of the CFI says: "This creates the possibility of what you might call a third tier in the EC for certain categories of cases. The message to get over, and what the Treaty of Nice has done, is create the possibility of building a deeper judicial structure, with the ECJ at the top of the pyramid where it should be and dealing with the cases it should be, and leaving less important cases to lower courts."
Staff cases are specifically referred to in the treaty, which encompasses the establishment of a judicial panel for first instance EC staff disputes. Paul Lasok QC of Monckton Chambers says the development of a specialist staff tribunal dates back to around the 1970s. However, he says that the ECJ originally resisted it because it found the caselaw very useful as a source on points of EC law. He says: "The justification to keep staff cases in the ECJ's jurisdiction has diminished considerably."
Judge Forwood, formerly a silk at Brick Court Chambers, explains that there is already a partial model for judicial panels in trademark cases. The Boards of Appeal of the Office for Harmonisation in the Internal Market (trademarks and designs) hears trademark registration appeals and could become a judicial panel. However, there is ambiguity over this as it is staffed by senior civil servants and not judges.
William Robinson, senior associate in the litigation department of Freshfields Bruckhaus Deringer, says that the Alicante Boards of Appeal demonstrate how future panels may operate through their relationship as an intermediary body under the CFI. He also explains that the Boards of Appeal are not judicial but administrative bodies. Accordingly, their decisions cannot be judicially reviewed and are instead subject to a full hearing on appeal.
Another proposal, which has been mooted for some years but which continues to cause widespread controversy, is the creation of regional or circuit courts. These decentralised bodies would handle preliminary rulings from their territory of remit.
Lasok says that the proposal is workable in different ways. "The basic idea was to divide the EC up into groups of member states, with judges coming from those groups." He explains that there could be a very large ECJ sitting in circuit, in the form of chambers dedicated to hearing preliminary references. Alternatively, there could be a panel comprising national judges covering different member states with the possibility of an appeal or deferral to the ECJ. Status-wise, these courts could be EC or national bodies.
In May 1999, the ECJ submitted proposals to the Council of Ministers on the future of the EU's judicial system, suggesting the formation of decentralised courts to deal with preliminary rulings from national courts in the relevant territory. The proposals state that "such bodies would be closer than the Court of Justice to the national legal system". By operating in the language of the country concerned, Robinson says that "one idea was to bring justice closer to the people and to be more accessible".
It is a fiercely controversial subject; many practitioners fear that under such a scheme the uniformity of the application and interpretation of EC law could be threatened. Eleanor Sharpston QC of 4 Paper Buildings sums up the concerns echoed by many. "The basic problem that needs to be solved is the conformity of EC law," she says. "There is an advantage of one court in the ECJ. If it grinds to a halt, that is no good for business when it takes two years to get a preliminary ruling. The trick lies in squaring the circle. How do you reduce the caseload without affecting uniformity?"
Christopher Vajda QC of Monckton Chambers is strongly opposed to decentralised courts because of the threat to uniformity. He says that there might be a problem of attitude caused by training that would give a judge a particular outlook that might be different to a judge from another area.
Creating a circuit court within a member state could cause problems in terms of hierarchy with that country's highest court. David Vaughan QC of Brick Court Chambers says that it would be "very difficult for the House of Lords to revert to an inferior body".
Robin Griffiths, a partner in the competition group of Clifford Chance, believes that one of the problems is that there is too much talk about change but no commitment to resources. "You cannot have justice in a reasonable time without resources," he says.
Thomas de la Mare of Blackstone Chambers says he is generally in favour of entrusting more of the ECJ's workload to the national courts to alleviate the backlog. James Flynn of Brick Court Chambers agrees, but believes much more radical measures are needed. "There are a couple of sacred cows and one or more of them need to be slaughtered. The only way forward is to limit preliminary rulings," Flynn says. At the moment, any magistrates court or employment tribunal can make a reference to the ECJ. Flynn says that effectively, "any judge, wherever he is, has a direct line to Luxembourg", and while it would be objectionable if only the House of Lords could make references, there are intermediate solutions.
Even with the accession of new EC members, Flynn insists that it is sensible for cases to be dealt with by a country's own internal procedure with a first reference to a more experienced national court. After that, if there is still a problem, the issue could be fast-tracked to Luxembourg. While this would result in the ECJ becoming more remote, Flynn says it is the price that has to be paid for a court which is taking on a function ever closer to the US Supreme Court.
Sharpston, in stark contrast, believes it is important to retain the rights of the lowest level court to make a reference to the ECJ on a point of EC law. "New blockbuster cases must get through sensibly to the ECJ, which is the only court which should be looking at them," she says. This does not mean that she rules out the proposal for regional courts, provided that there is a process for rulings to get directly to the ECJ if needed, perhaps like a leapfrog procedure.
However, the proposals for reform in the treaty may not be sufficient to resolve the overload of cases already in the EC court structure. Flynn thinks that the benefits will be short-term and that the work will quickly build up again, especially when new member states join. The EC will continually need to monitor ways for streamlining its judicial procedures.
Vajda suggests that another possibility would be for the advocate general to give his opinion after considering the written documents in a case and immediately before the hearing. This would prevent the delay between the advocate general's opinion and the ruling.
Lode Van Den Hende, an assistant in Herbert Smith's Brussels office, believes the CFI should have employed more judges in specialised chambers, rather than judicial panels. Another possibility is the use of decision-making by single judges. Lasok believes this has to be the way forward because the collegiate decision-making process and a multiplicity of judges are inefficient and disproportionately expensive.
Consensus exists among some practitioners regarding the progression of the ECJ towards a body similar to that of the US Supreme Court, but the US Supreme Court deals with cases of its choice or only very important cases. Long term, the ECJ could be moving towards this model, but not before, a few of those political sacred cows have been slaughtered.