On 30 September 2002, the Court of First Instance (CFI) happily announced that it had applied the accelerated procedure, known as fast-track, to Case T-211/02 and applied judgment within 11 weeks. The crowd went wild.
Chris Thomas, a partner at Lovells in Brussels who acted in the case, is understandably delighted with the process. “It's a fantastic procedure,” says Thomas. “For the first time it offers litigators a realistic prospect of judicial review. It very clearly fills a need.”
Under this procedure, urgent cases with a genuine need may be dealt with immediately, depending on the court's limited resources. However, it has taken 20 months since the amendments were made to the CFI's rules of procedure to achieve this result.
According to the 2001 annual report recently issued by the European Court of Justice (ECJ) and the CFI, it is too early to assess what impact the expedited procedure will have on the length of proceedings. As of 31 December 2001, there were 12 applications lodged at the CFI for the procedure and two were granted. The controversy lies in which cases are selected.
The average duration of proceedings at the CFI fell to 19.5 months in 2001 from 23.5 months in 2000. However, the general view is that the fast-track system pushes other cases back because there are no additional resources available. The average length of time for the ECJ to process cases is 22 months for preliminary rulings and 23 months for direct actions. That compares with 21 and 24 months respectively for 2000. The average time to deal with appeals at the ECJ was reduced from 19 months in 2000 to 16 months in 2001.
Paul Lomas, partner and head of the EU law litigation team at Freshfields Bruckhaus Deringer, says that he has just waited over two years for the preliminary reference of a judicial review by the ECJ in a case related to the UK milk market. “The reference to the court was made in December 2000, the oral hearing was in February 2002 and the advocate general's opinion came mid-September,” he says. “We suspect we won't get the court's judgment this side of Christmas.”
However, Lomas does think that judges are more aware of the need for speed in certain cases. Intervention by the judges in a leading tobacco manufacturer's case resulted in it going through the ECJ in just one year. “It was quite urgent because the tobacco control directive has to be implemented very soon. The ECJ has moved extremely quickly,” says Lomas. “However, we have to recognise that intervention is necessary because the underlying systems are too rigid and aren't being operated well. What's also frustrating at the moment is the tendency of parties to object on admissibility; it's causing a lot of delay.”
The ECJ brought 398 cases to a close in 2001, less than the 463 concluded last year. However, that figure is in line with the average of 375 cases for 1997-99. The court has clearly now reached capacity with the available resources. The number of new cases has stayed very much the same at 504 in 2001, rising just one from 503 in 2000. “Consequently, the number of cases pending has increased to 839 (net figure, taking account of joinders), compared with 803 in 2000,” writes Gil Carlos Rodriguez Iglesias, president of the ECJ.
With figures like these, few would deny that the judges' workload is enormous. Considering that the court works in 11 different languages and that there are only 15 judges and three referendaire each, that is a very busy schedule. The statistics look more surprising if you consider that the 15 CFI judges still have only two referendaire each. “We're relatively happy with the length of proceedings,” says ECJ spokesperson Reinier van Winden. “It's a very long time, but that's mainly due to translating. It takes up half the time of the entire proceedings.”In 2004 the first four of 10 new member states will join the EU. “We're working on a new building – it will be twice as big,” says van Winden. “We're training the interpreters so they can speak more languages and we're preparing the new session countries by sending reports of the most important cases of the last 50 years.” Each country will then provide a judge for the court to help with the extra workload. Reinier is confident that this will be enough to maintain stability.
The number of cases determined at the CFI was 325, compared with 327 in 2000. Rodriguez writes: “It is interesting that the number of cases decided in the field of intellectual property (IP) has increased significantly, from seven in 2000 to 30 the following year.”
Many of these new cases are due to the new trademark registration procedure by the Office for Harmonisation in the Internal Market (OHMI). Another key issue that has produced IP cases is that of parallel imports from outside the European community, most significantly Tesco Levi Strauss. “I wouldn't expect another round of cases on that front next year,” says Freshfields partner David Aitman. “The other issue, which clearly is sensitive and may grow, is that of compulsory licensing of intellectual property.” The question is whether a body which puts together lists and copyrighted material, has to supply it to third parties on a normal licence fee.
“What I think will be very interesting is the two expedited cases due to come to judgment this month – Schneider-Le Grand and Tetra-Sidel,” says Aitman. “Both are prohibited merger cases on the new expedited appeal route. The goal for nine months to appeal looks like it will be met. What remains to be seen is how good the judgments are. Will they have to be more cursory? Are they skipping some of the written stages? You have to wonder whether, under an expedited route, the court is going to lean slightly more heavily on the [European] Commission's (EC) starting point.”
The legal community is still waiting to see whether the final stage of the Nice Treaty ratification will proceed. Eighteen months have passed since people could speak of little else and it seems that some of the enthusiasm has waned. The Irish referendum on the Nice Treaty is due to take place later this month and then, perhaps, some real changes can take effect.
There are plenty of suggestions as to what changes would be best. Lovells partner Chris Thomas thinks that the willingness of the courts to provide a valuable service is hindered mostly by tight budgetary constraints. “More money into the judicial system isn't sexy for politicians,” he says. “Complaints about delays should be directed against them; they should make the money available to fund an effective court system.” Thomas calls for more translators, more referendaire and more judges. But will simply injecting more money into the current system be enough?
The development of the courts' workload indicates that there are specialist areas that could be devolved to non-judicial bodies. These bodies could either sit outside the judicial system or take the shape of special chambers within the CFI.”
The finer points of harmonisation give rise to issues that perhaps could be better dealt with by a community of high-ranking civil servants from the member states,” says Freshfields partner and former referendaire to Judge Edwards, William Robinson. “One of the reasons that the court has difficulty with this sweeping proposal is that significant constitutional points can arise from the simplest case,” he continues. “That's the ultimate tension.”
The trend for many years at the CFI has been for cases to be heard before chambers of three judges. This is due to nervousness about language problems and the inherent desire of Europeans to reach collegiate decisions. This has not changed, with more than 80 per cent of the CFI bench hearing cases before chambers of three. At the ECJ, most cases are heard by five-judge chambers. This year 151 out of a total 304 were handled in this way; last year it was 155; 92 cases were before a chamber of three compared with 90 in 2000. A plenary session, (a full court of either 15 judges, or the small plenary of 11) only sits on the most important cases, raising issues of principle. If the Nice Treaty is ratified then the plenary session will sit very rarely.
Will the use of fewer judges or the non-judicial panels make the courts any faster? Not according to Paul Lasok QC, joint head of Monckton Chambers and author of European Court: Practice and Procedure. “I suspect that if you got rid of all the staff and trademark cases, it still wouldn't make any difference,” says Lasok. “We need a flatter structure with a notional plenary session, with the majority of judges in chambers of three. Judges should be members of no more than one chamber.”
This, he thinks, will remove the logistical problem of getting all the necessary judges together to make decisions. He considers the strength of the president of the CFI and ECJ to be very important if quicker judgments are to be made. “The [original judges] were revelling in the intellectual delights of exploring the minutiae of simple cases because they hadn't got enough work to do,” says Lasok. He fears that this situation would reappear if the workload were to be transferred elsewhere.
As Shearman & Sterling partner Chris Bright points out, something has got to give. “There is insufficient judicial capacity. We've got 40-odd judges for 320 million people. An area that produces a good amount of litigation and dispute is the patent area,” he says. The European Commission (EC) is planning to establish a central community patent court in Luxembourg (The Lawyer, 23 September). “We currently have a fragmented approach, so it seems like common sense,” says Bright.
Bright believes that the benefits of a regional court system far outweigh the potential problems of consistency and uniformity. “Conceptually, it's no different to the magistrates court in England,” he says. “They're an inevitability.” The hope is that they would bring the courts closer to the community, manage day-to-day issues faster and provide greater capacity while allowing for more growth.
“The case-flow would also be lessened if the court started using its powers to penalise countries for non-compliance,” says Bright. “It must push countries. It used to be a court pushing the boundaries of community law. We need it to start making a difference in the way it did 20 years ago.”
Bright is keen to move on from the relatively small steps of the Nice Treaty. “When will we accept that the European Commission is more than an inter-governmental institution? When will we recognise that it is effectively a governmental executive and make it democratically accountable?”