The ECJ: probably the slowest court in the world

Brendan Malkin on why the ECJ takes three years to pass judgment; is a lack of translators to blame?

It is strange that the incredibly slow process of European justice is partly the result of something as small as an insufficient number of translators.
Decisions from the European Court of Justice (ECJ) are typically taking three years – up from a mere six months in the 1970s. The ECJ's 16 judges have never formally been asked why they take so long, no inquiry has taken place and most users of the court are too afraid to go public on their resentment for fear of the impact it will have on their livelihood.
Lawyers can only hazard guesses as to the cause of the delays, with one plausible explanation being the time needed for translation.
References for preliminary rulings are the most common applications before the ECJ. Details of these references and written observations have to be translated into the languages of all member-states, all the parties in the proceedings, and to Brussels officials. Joint head of Monckton Chambers Paul Lasok QC, who has some 30 years of experience of the ECJ, said the translation teams simply cannot deal with all this. “The translation service is too small to cope and under-resourced in regard to its commitments, which causes delays at the outset of hearings,” he said.
Unfortunately, the problem goes far deeper than simple translation problems. Take the recent patent case Philips v Remington. This was referred to the ECJ in August 1999 by the Court of Appeal in order to deal with questions over the construction of the European Trade Marks Directive.
Nine months after the referral, in May 2000, judges met to discuss the Remington case. Six months after that, each party was given 20 minutes to present their oral submissions. A further two months later the Advocate General handed down his opinion. That opinion was put before other judges who finally handed down their decision this year, almost three years after the case was referred and 17 months after the Advocate General's opinion.
Incredibly, this judgment only dealt with four out of the seven questions that the Court of Appeal had put forward. The remaining three concerning infringement will be the subject of a second referral to the ECJ. Simon Chapman, a Laytons partner who acted for Remington, said: “No doubt the delay would also have caused inconvenience and possibly loss to traders.”
Lasok said: “The fact that the judges are required to provide a judgment is a cause for delays, as there is a tendency for judges to seek unanimity.” Judges also have a huge work load – last year the ECJ produced about 9,000 pages of judgments – and because they are handling so many cases they find it hard to find the time to discuss a case.
Massive delays have occurred in all the recent big ECJ cases, such as Factortame and the Davidoff and Levi Strauss trademark infringement cases. But criticism runs deeper. Sources in Philips v Remington say the UK courts sought for the ECJ to provide a separate meaning for potentially overlapping provisions within the Trade Marks Directive. However, the ECJ's judgment shed no further light on an area that remains baffling to UK lawyers and judges alike.

Offshore focus
Complaints over delays are not solely restricted to Europe either – offshore jurisdictions are also facing criticism. Jersey, for example, that popular destination for lodging assets, may not be so desirable in the future after increasing numbers of individuals lodging funds in trusts and banks have been finding themselves at the receiving end of investigations by the island's Financial Crimes Unit (FCU).
According to local lawyers it can take months for an investigation to even kick off, and years to finish. Meanwhile, the assets of the alleged fraudsters are frozen and deals go out the window. Assets are supposed to be frozen for only a few days and then a judicial order has to be sought to continue the withholding.
The procedure is that accounts are frozen following a suspicious transaction report (STR). An STR was recently filed against a company set up by the trust company arm of Jersey firm Bailhache Labesse.
The firm says STRs are not at all uncommon. Some lawyers argue that the delays are the result of the high numbers of 'innocent accounts' being frozen. They argue that the focus of the FCU should be on the big time launderers.
Delays continue throughout the investigation process, which, it is argued, is severely damaging the banks' relationships with clients, as following an STR, they are barred from passing on clients' funds to another jurisdiction. A bank is also denied the right to tell the client why it has not transferred a client's money. On several occasions peeved clients have sued their unfortunate bank after losing out on a deal.
Of course, all this could be avoided if the fraud investigators simply decided earlier whether or not to freeze assets. However, Jersey lawyers claim that the FCU wants to place greater emphasis on banks and trusts to deal with suspicious characters, freeing up the FCU to handle the really bad boys.

Standing out from the crowd
There are all sorts of ways barristers can get noticed by potential clients. Some say it's simply about reputation arising from barristers' court performances. But in 2002, such an attitude simply won't do. The best chambers are the best partly because they know how to sell themselves.
Take Littleton Chambers, a set which last year saw its turnover increase by 25 per cent and which has a strong, albeit not yet premier league, reputation in employment, commercial, business contract, and professional negligence. This medium-sized set has been trying to break the US market, with some success, and is now trying to make headway in Europe.
Of course, it is one among a number of sets looking to broaden their international horizons. But unlike the majority of its peers, it believes it might have stolen a march on them by securing a badge denoting status in the form of the ISO 9001, one of the first chambers to do so. It took two years to get, a vast amount of paper-filling, audits, and checks on transparency of fees accounting, complaints procedure, client care, and financial and personnel management. Essentially, it gives the set an international stamp of approval so foreign lawyers are – supposedly – more likely to choose Littleton.
While qualitative assessment of the Bar is notoriously difficult to achieve, with most such badges merely approving administrative standards, Littleton's move does acknowledge the necessity of some form of public accountability. And that's a pretty major step for barristers. It is also important to recognise that the ISO mark is an infinite improvement on BarMark.
It seems the bar and a global world might just be able to coexist after all.