Time waits for no court

To an extent, the European Court of Justice (ECJ) is a victim of its own success. Its ever increasing docket illustrates the successful pervasion of European Community (EU) law throughout the European Union (EU). Reforms introduced by amendments to the Rules of Procedure of the ECJ and Court of First Instance (CFI), and the Nice Treaty have yet to bite, but the latest statistics released last week reveal that the European court system is suffering from an acute case of backlog and delay.

It simply cannot cope with demand, and many exasperated practitioners cannot see a solution under its current operation and are calling for a radical overhaul of the whole court structure.

Chris Bright, head of Clifford Chance's European competition group, is frank in his assessment of the ECJ's caseload problem. “There's insufficient judicial capacity and there always will be as long as we have a centralised court in Europe, which regards itself as a constitutional court rather than a court for citizens,” he says.

The ECJ has just issued its 2000 annual report, intended to provide a record of court activity over the previous year. GC Rodríguez Iglesias, president of the ECJ, writes in the report: “The number of new cases annually seems to be stabilising (503 in 2000 as against 543 in 1999 and 485 in 1998, gross figures), a development which enabled the court to reduce the number of pending cases (from 896 to 873, gross figure). Nevertheless, the number of cases pending before the court is still higher than in 1998 (748, gross figure).”

Even if the ECJ can make its input equate to its output, a backlog of 873 on a turnaround of 503 cases in 2000 would still require a significant amount of time and resources to erode, leaving aside any new caseload. Case duration is also a concern. The average duration of proceedings in the ECJ was 21 months for references for preliminary rulings, 24 months for direct actions and 19 months for appeals.

Peter Roth QC of Monckton Chambers points to the European Court procedural reforms, introduced in February 2001, before the Nice Treaty proposals, to address the problem of the delay in the European Court system. He explains that very urgent cases can be expedited under a new fast-track procedure, which he anticipates will be of use in merger challenges. However, he acknowledges that problems of delay are set to worsen with the enlargement of the EU. He says it is difficult to see what can be done about it without significantly increasing the size of the court and the number of chambers. Dispensing with the advocate general's opinion in straightforward rulings is one way that Roth believes delays can be reduced. This will be implemented under the Nice Treaty reforms, but it will bite only if the ECJ finds that no new points of law are at issue.

Christopher Thomas, partner-elect at Lovells Boesebeck Droste in Brussels, used to work as a referendaire to CFI judge Sir Christopher Bellamy QC (now president of the Competition Commission Appeals Tribunals). Thomas explains that large swings in the CFI statistics must be considered with caution, as they are more likely to indicate the clearing of a particular set of cases rather than a reduction in the court's productivity. The CFI received 644 new cases in 1997, which fell to 238 cases in 1998 and rose more steadily to 384 in 1999 and 398 in 2000. In 1999, Thomas believes the number of cases was due not only to a number of state aid claims regarding Dutch service stations, but also in part to the large number of damages actions brought by customs agents. He also highlights that in 2000 the CFI addressed the complicated network of cement cartel cases.

The duration of CFI proceedings also varies, and Thomas again attributes this to the CFI's mixed bag of cases. “Staff cases can be quite quick,” he says. These are mostly brought by Belgian lawyers in French, which can save about six months on translation times. Competition cases take much longer, which may help in explaining why 20 cases were dealt with in less than five months in 2000, but 103 cases exceeded 24 months. The average duration of CFI proceedings in 2000 was 27.5 months, again anomalous with the 1999 figure which was 12.6 months. Staff cases took an average of 15 months in 2000, down from 17 months in 1999.

It is also clear that a three-judge formation is by far the most popular in the CFI, with 214 cases being dealt with in this way in 2000 as opposed to 112 by the next most-used forum, the five-judge chamber. Thomas points out that the single judge reform is rarely used – just 15 times in 2000. He says: “Basically, the CFI hasn't sat as a full court or used an advocate general for close on 10 years and has brought down cases to three judges.”

Rhodri Thompson of Matrix Chambers believes that the CFI is nervous about hearing cases with one judge because of language problems. In contrast to the CFI, he points out that the bulk of cases in the ECJ are heard by five-judge chambers. 155 cases were dealt with in this way in 2000 and 135 in 1999, compared with 90 and 67 respectively (the second-highest number of cases) being heard by a three-judge chamber. It is also worth noting that 40 of the 90 three-judge cases in 2000 were for orders and only 50 for judgments. Thompson's explanation is that “they're reluctant to put it down to three because it's not representative”. Under the Nice Treaty reforms, the ECJ will sit in plenary session as the exception and not the rule.

Proposals introduced by the Nice Treaty will enable the CFI to handle references for preliminary rulings and will establish specialised judicial panels (The Lawyer, 22 January). Allen & Overy partner Francis Herbert, based in Brussels, sees potential for the CFI to handle preliminary rulings where it already has jurisdiction, such as competition, state aid or in technical matters such as customs valuations. A Belgian lawyer himself, Herbert is used to long time limits in Belgian cases. While he admits that two years is a long time for a preliminary ruling, he does not think it is too long when weighed against “the quality of judgments, the way the judges involve themselves in the cases and the complexity of the language problem”.

Bright at Clifford Chance says that there is recognition in Luxembourg that things aren't quite right, and that the Nice measures are sensible, but that change happens at “a snail's pace”. He says: “The fundamental issue is that we need more judges and more capacity.” Granting jurisdiction to the CFI to handle references for preliminary rulings is, in Bright's view, to “juggle the balls between two institutions that are already overloaded”.

Preliminary rulings constituted by far the greatest number of cases in the ECJ: 211 references for preliminary rulings were made in 2000, compared with 180 in 1999; 130 judgments were given regarding Article 234 (formerly 177) of the EC Treaty in 1999 and 148 in 2000. With such a turnover, Thompson believes that a regional court would save parties much in costs and time.

With a myriad of references made by lower courts (which may never actually cover European law aspects), many practitioners are fearful of a regional court or even overburdening national courts with a remit, which is argued to safely belong to the ECJ. Philippa Watson, a tenant of Essex Court Chambers and professor of competition law at Nottingham Law School, says that the statistics from the ECJ show that preliminary rulings are a real strength of the system. She says that regional or national courts would defeat the purpose of the Article 234 procedure, which aims to have a uniform and consistent interpretation of community law.

In 2000, the House of Lords made 24 references to the ECJ for preliminary rulings and the Court of Appeal made 16; other UK national courts and tribunals made 277 references. This total of 317 references by UK national courts grew from 291 in 1999 and 269 in 1998. Germany registered the highest number of references, achieving 1,209 in 2000, way above its comparative neighbours such as France and Spain, which made 623 and 130 respectively.

Bright explains Germany's exceptionally high volume of references compared with other member states not only in terms of population, but also in terms of access to justice. “Going to court is easier,” he says, whereas in the UK cases are more labour intensive so the system is “inherently slower and handles less cases”. Watson also believes that due to Germany's high number of ports, it refers a lot of tax and customs cases.

“Justice must assume speed and justice delayed is maybe not justice at all,” says Bright. His view is that a complete revision of what the European court system is there to do is required and that “it needs to evolve to a regional court structure with Southern, Northern, Eastern and Western regions”. Controversy regarding the future and function of the ECJ is likely to continue, at least until it masters its caseload problem. Having established itself as the supreme constitutional court of the EC, the ECJ needs to further streamline its procedures and establish itself as a federal system with the increased capacity necessary to deal effectively with the range and growing number of cases that it faces. n

l See The Lawyer's forthcoming special report on European law, 23 April