“Don’T Bring Upwards The Extra Judges!” When Cjeu Reform Turns Into Farce

Steve Peers

The classic British comedy Fawlty Towers derived its humor from the doomed attempts of the ill-tempered hotel possessor Basil Fawlty to command the uncontrollable situations that developed closed to him, oftentimes taking out his frustrations on his waiter, Manuel. No 1 would seriously suggest emulating Basil Fawlty’s administration style. But nevertheless, the ground over the reform of the Court of Justice is increasingly resembling a Fawlty Towers episode.

Let’s review. After several previous failed attempts at reforming the European Union judicial system, the Court of Justice suggested that the lower European Union courtroom (the General Court) should have got double the issue of judges – ii per Member State, instead of one. The EU’s civil service tribunal (with vii judges) would closed down, merged into the General Court. The senior Court of Justice would retain 1 approximate per Member State. For the background, farther details together with arguments inwards favour, run across my before blog post.

This proposal was opposed past times many staff inwards the General Court. So iv General Court judges appeared before the European Parliament to object to this excogitation (let’s telephone phone them, collectively, ‘Manuel’). For news of Manuel’s counter-arguments, run across the recent blog post past times Professors Pech together with Alemanno; together with for Manuel's written declaration itself, run across retaliation against the dissenting judge. Manuel mightiness presently larn whacked past times that frying pan.  

With the greatest respect, in that place are profound problems alongside Skouris’ approach. First together with foremost, his response has larn the even out (it’s too been covered elsewhere). This diverts attending from the pros together with cons of the declaration for CJEU reform. I’m non criticising the journalists – it’s their project to study on his response, together with he should have got anticipated the consequence it would have. Also, straight off that his response has larn the story, it gives the impression that the proposal is a greedy grab for coin past times the judges. In fact. every bit I pointed out inwards my before post, the CJEU had previously suggested fewer extra judges. It only asked for doubling the issue inwards despair, when it became clear that Member U.S. could non handgrip on a to a greater extent than pocket-sized number, due to national egotism.

Secondly, Skouris’ angry letters give the impression that the CJEU is an authoritarian institution. Certainly, whatever ordinary employer would non have got kindly to world criticism of its policy past times its staff. For instance, if (entirely hypothetically) I had objections to the administration of the University of Essex, I would non air them inwards a world forum. But the CJEU is a world body, inwards a political organization whose legitimacy is clearly fragile. These attempts to quiet dissent for certain harm the Court’s say-so to a greater extent than than the dissent itself would. Anyway, they gave that dissent far to a greater extent than publicity than it would otherwise have got had (the well-known 'Streisand effect').

Thirdly, past times attacking the dissenters instead of countering their arguments, it gives the impression that in that place is no adept declaration inwards favour of the Court’s proposals, since the brave truth-tellers are existence silenced. And inwards tactical terms, it’s especially difficult to run across how attacking the really MEPs whom Skouris needs to convince to back upwards his proposals volition win them round.

This work isn’t express to Skouris alone. After publishing the arguments of Pech together with Alemanno, this weblog received an anonymous comment which mixed snide personal comments virtually 1 of those authors alongside a reasonable counter-argument against their critique (I don’t know whether or non the commenter is linked to the Court). I didn’t divulge that comment at the fourth dimension because of the nasty personal comments. After some thought, I have got decided to extract the to a greater extent than reasonable purpose of those comments together with introduce them here, together with thus that nosotros tin movement dorsum to debating the merits.

“[redacted] 1) The iv arguments inwards favour of the reform (as summarised past times Steve Peers) are dismissed every bit non empirically substantiated. But if something is self-evident why range nosotros demand empirical information (and which ones past times the way?). Do nosotros demand empirical information to demo us that a two-tier judicial organization is SIMPLER than a three-tier organization alongside obscure procedures such every bit the particular review procedure? Do nosotros demand empirical information to demo us that it is wiser to have got preliminary references together with appeals inwards the jurisdiction of the same court? Do nosotros demand to a greater extent than empirical information to evidence that the nomination of judges to a specialised tribunal is to a greater extent than complex than the 1 for the GC [General Court]?

 
2) The claim of a plough over downwards approach is non substantiated. Certainly the press together with some GC insiders may have got claimed that. [personal comment redacted]

a) the internal ground over the GC reform started inwards 2009 

b) at the initiatory of the GC

c) was debated past times a bilateral commission (CJ together with GC) for almost ii years

d) The President together with Vice-President of the CJ went repeatedly to the GC's plenary to hash out this matter

e) That the caseload of the GC increased past times 48 % betwixt the GC's start proposal (2011) together with the amended 2014 proposal.

[redacted] 

3) It is incorrect to claim that IP cases stand upwards for 30% of the GC's workload. It is thirty % of the GC's CASELOAD. There is a huge deviation betwixt caseload together with workload. One contest or State assist example is equivalent to 10 or twenty trademark cases...

4) The arguments virtually character clearly imply that judges together with référendaires at the GC are non upwards to the task. This raised some questions though which are left unanswered:

a) How is that substantiated? How have got y'all assessed the lack of competence that y'all allege exists? 
b) Why is the character of judges together with référendaires a work only at the GC? Nomination together with référendaire hiring practices are identical at the CJ together with the GC...

c) How on world tin nosotros hold out talking virtually an EPSO contest for référendaires? Aren't y'all aware of EPSO's inefficiencies? [redacted]

5) Some of the article's recommendations have got a lot of merit. However, they require a lot of fourth dimension (or fifty-fifty Treaty change) to hold out implemented. The GC's backlog is hither now!!! In monastic say to choose the pending cases to a reasonable degree of 800 the GC must create 100 to a greater extent than judgments than the incoming cases per twelvemonth FOR 6-7 years inwards a row. It has never managed to range together with thus inwards the final xv years notwithstanding the fact that its judges together with staff (according to my information) are working at their limits. So...we have got to enquire ourselves...is in that place some other feasible solution apart from the 1 proposed past times the CJUE?” 

The means forward

In many Fawlty Towers episodes, there’s a betoken where Basil’s long-suffering married adult woman mollifies the people offended past times his conduct. Let me assume that role hither (just telephone phone me ‘Sybil’). Otherwise I fright that the physical care for of reform mightiness presently come upwards to an abrupt stop – together with nosotros volition all have got to witness the judicial equivalent of Basil Fawlty whacking a broken-down machine alongside a tree.

'Manuel’s' fundamental claim, ie the counter-argument against 'Basil’s' declaration for doubling the issue of judges, is that 80% of the General Court’s backlog has straight off been eliminated. This is non substantiated past times whatever statistics, together with it’s non clear what they define every bit a 'backlog'. I wonder if the EP pressed the dissenting judges on this point, or merely lauded them every bit the Edward Snowdens of Luxembourg. Certainly it’s clear that a really large issue of cases are silent existence lodged at the General Court. And fifty-fifty if that Court is catching upwards alongside its example load, there’s an declaration that to a greater extent than judges mightiness hold out able to cut decision-making times farther still.

The Pech together with Alemanno declaration for to a greater extent than specialised courts mightiness hold out fine inwards theory, but it’s clearly non feasible inwards the existent world. This approach has been tried together with failed: Member U.S. have got paralysed the Civil Service Tribunal past times non appointing fresh judges to it, due to a spat virtually rotation of judges betwixt Member States. That’s piffling together with for certain illegal – but it’s an unavoidable fact. There’s no betoken hoping that national egos volition give-up the ghost away; they won’t.

But in that place is much to the Pech together with Alemanno declaration (made too past times lawyers practicing before the Court, such every bit Tom de la Mare) that to a greater extent than effective administration of cases could address a lot of the Court’s problems.

So I suggest a compromise. The EP should handgrip to the Court’s proposal – alongside a sunset clause. Let’s appoint 1 gear upwards of extra judges for each Member State. In principle, they volition serve 1 term only. (They could remain on to supersede the other approximate from that Member State, if he or she leaves). H5N1 distich of years before the start term of the start batch of extra judges expires, in that place could hold out a total impact assessment of whether in that place silent demand to hold out extra judges. This would too reckon whether the Court has taken other effective steps to deal its workload (which should hold out a status of getting the extra judges), together with mensurate whether they have got proven to hold out every bit effective every bit some claim that they could be.

Conclusion

“Don’t cite the extra judges!” (I did once, but I mean value I got away alongside it). More seriously, I larn the distinct impression that the declaration virtually the Court is existence affected past times a lot of personality politics. I’m non a electrical current or old insider inwards the Court or the Parliament (or anywhere else), together with thus I have got no ego inwards this race. But I urge  everyone involved to  leave their egos at the door, together with I believe that a reasonable compromise betwixt the unlike opinions – the validity of which has been obscured past times the overreaction to some of them – is possible along the lines I suggest.

Barnard & Peers: chapter 10

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