Reform Of The Eu’S Courtroom System: Why A To A Greater Extent Than Accountable – Non A Larger – Courtroom Is The Trend Forward
November 26, 2018
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1. The context
Recent media coverage of the European Union Court of Justice suggests that the flow of ‘benign neglect past times the powers that live in addition to the majority media’ – ane time described past times Professor Eric Stein – may good live genuinely over ane time in addition to for all. The most unexpected appear of this rather unique degree of media attending is that it does non straight concern whatsoever detail judicial ruling past times a Court, which, since it decided its outset representative inwards 1954, has issued to a greater extent than than 28,000 judgments in addition to orders. Instead, the Court of Justice (CJ) and its President, Mr Vassilios Skouris, conduct maintain been dependent champaign to unprecedented media scrutiny next intense internal infighting almost a contentious proposal which officially aims to ‘reinforce the efficiency of justice at European Union level’ past times doubling the number of judges working at the General Court (GC).
Before offering a review of the CJ’s diagnosis in addition to critically assessing the solutions defended past times its President, it may live worth briefly recalling that the GC – initially known every bit the EU’s Court of First Instance – was ready inwards 1989 to aid the CJ care amongst its increasing workload. To aid inwards plough the GC care amongst a similar issue, the outset European Union specialised ‘judicial panel’ was ready inwards 2005: Known every bit the European Union Civil Service Tribunal (CST), the jurisdiction is only express to disputes betwixt the European Union in addition to its civil servants in addition to consists of vii judges. By contrast, both the CJ in addition to the GC currently consist of 28 judges, amongst one justice from each Member State. The CJ is withal also assisted past times nine Advocates-General.
2. The Court of Justice’s diagnosis
The casus belli, which has prompted the electrical current debate almost the EU’s judicial architecture, is the increase inwards the number of novel cases brought earlier the GC (from 398 inwards 2000 to 912 inwards 2014); the stock of cases currently awaiting to live decided (1,423 inwards 2014 in addition to expected to rising to 1,600 inwards 2015); in addition to finally, the increasing number of actions for damages brought against the European Union due to the excessive length of proceedings earlier the GC on the dry soil of Article 47 of the European Union Charter, which guarantees a correct to conduct maintain cases heard inside a reasonable time.
While increasing workload is non inwards itself a novel phenomenon – in addition to has indeed been a recurrent job for both the CJ in addition to the GC – the latter’s growing workload has been seen every bit peculiarly worrying. Indeed, inwards improver to a rapid increase inwards the number of cases earlier it, the GC’s productivity has decreased despite an increase inwards the number of both judges (due to the Union’s enlargement) in addition to their legal assistants known every bit référendaires (see withal Steve Peers, supporters of the CJ’s solution conduct maintain relied on the next arguments to back upwards the proposal to progressively double the number of GC judges:
1. It would live a to a greater extent than flexible solution than the creation of specialised courts to the extent that litigation may increase inwards areas non initially foreseen in addition to that cases most suitable for specialised courts tend to live repetitive in addition to tardily to bargain with;
2. Keeping such cases closer to the CJ would also brand sense considering that the CJ may conduct maintain to bargain amongst similar cases via national references for a preliminary ruling;
3. The appointment of novel judges to the GC could live done swiftly in addition to would also avoid whatsoever pork-barrel politics should the specialised courts non consist of a justice per Member State (as has been the representative amongst the CST);
4. Finally, the CJ’s solution would conduct maintain the singular payoff of simplifying the European Union judicial system.
These are audio arguments but unfortunately none of them are, inwards our view, empirically substantiated. The lack of whatsoever proper prospective comport upon assessment of the CJ’s proposal is, inwards this respect, peculiarly regrettable. Similarly, ane may deplore the top-down, non to say authoritarian, approach adopted past times the President of the Court, which suggests a deliberate endeavour to avoid whatsoever meaningful word of reasonable alternative proposals, such every bit the establishment of specialised courts amongst jurisdiction to withdraw heed in addition to determine direct actions inwards a specific area. The CJ’s proposal also marks a shift away from the regulation of specialisation – endorsed past times the Masters of the Treaties in addition to laid to materialise into the creation of subsequent specialised chambers, such every bit inwards trademark litigation (representing around 1/3 of the GC’s workload) – towards a generalist jurisdiction made upwards of 2 judges per each Member State.
As for the declaration raised against the regulation of specialisation – to avoid creating a courtroom amongst a ‘rigid’ jurisdiction that mightiness non live justified inwards the low-cal of futurity workload – well, the same declaration could really live invoked against the creation of a ‘super-GC’ whose futurity caseload is unlikely to double inwards the close future. This is especially truthful given the express access to justice inwards direct actions currently granted past times the Treaty every bit interpreted past times the CJ. More critically, nosotros submit that the doubling of GC judges is an unnecessary distraction from less visible in addition to arguably to a greater extent than decisive issues such every bit representative administration in addition to productivity per personnel unit. Those challenges, if tackled properly, would most probable select long-lasting benefits to the establishment without entailing a radical restructuring of the EU’s judicial system.
We thence suggest to stair dorsum from what has larn a largely emotive in addition to non ever evidence-based debate inwards lodge to guess whether an alternative diagnosis in addition to laid of reforms should non live inwards order.
5. Thinking exterior the dock
Although the dominant narrative accompanying this debate highlights the beingness of a dramatic backload, in that place is a broader number facing the powerfulness of the GC to effectively deliver justice today.
We submit that the existent difficulties encountered past times the GC lie inwards the broader laid of challenges faced past times such a unique transnational in addition to multilingual courtroom whose jurisdiction has been growing inwards parallel to the transfer of competences to it since it was outset established inwards 1989. It is of import to realise that piece the GC acts every bit an administrative court, invested amongst fact-finding tasks, the CJ largely operates every bit a constitutional court. These 2 courts, to oversimplify slightly, non only conduct maintain jurisdiction over different kinds of cases but also withdraw heed actions originating from different actors. If the privileged customer of the CJ is a national justice – largely embedded into its domestic reality – those of the GC are predominantly individual line of piece of work concern operators. Logically, therefore, the education of the cases should follow different operational guidelines in addition to linguistic regime. Yet they largely don’t in addition to this is so despite the reform of the rules of procedure.
Let us illustrate why this assimilation of the 2 courts when it comes to their judicial organization may explicate several of the many challenges faced today past times the GC.
In both courts, the education of a representative is led past times a Judge rapporteur (JR) nominated past times the relevant President according to unknown criteria (even though specialisation would seem to live taken into line of piece of work concern human relationship at times). He/she is expected, ane time the written physical care for is terminated, to draft a preparatory, internal document (rapport préalable). While the training of this working document past times the JR requires on average 2 weeks at the CJ, it to a greater extent than frequently than non takes a minimum of 12 weeks at the GC (this is only an average: a trademark representative mightiness accept significantly less in addition to a contest constabulary representative significantly more). This is largely due to the fact that piece the rapport préalable constitutes a few pages at the CJ, it to a greater extent than frequently than non consists of a fully-fledged document at the GC, which largely anticipates the draft judgment.
This departure itself reflects 2 different approaches: Unlike the CJ, where collegiality manifests itself on a weekly basis, allowing all Court members to substitution on the novel cases that conduct maintain reached maturity, the electrical current functioning of the GC shifts to a greater extent than responsibleness to the chambers in addition to inwards detail to the JR. In the absence of an Advocate General, the JR at the GC in addition to his/her référendaire observe themselves largely insulated from the repose of the Court in addition to this for a significantly longer flow of time. This province of affairs – which is farther exacerbated past times the higher number of chambers – may hateful a waste materials of precious fourth dimension should the other members of the Chamber disagree amongst the approach developed past times the JR inwards total autonomy over the previous months. H5N1 preliminary document stating the orientation of the chamber, to live agreed upon earlier the Judge Rapporteur in addition to his/her legal assistant start working on the initial draft could live a promising surface area of reform. And this is only ane of several areas where creative in addition to depression costs measures could live adopted to address some of today’s concerns regarding the GC’s workload. Other instances of reforms – which conduct maintain largely remained taboo but would entail keen savings – include a review of linguistic communication arrangements (e.g. English linguistic communication could live used every bit a default procedural linguistic communication inwards all contest or fifty-fifty ‘economic’ cases); a courtroom fee to discourage vexatious or frivolous litigation; novel rules on the resources allotment of legal costs for the losing applicant; a questioning of the automatic correct of appeal, which would filter out, thus discourage, farther in addition to unremarkably unsuccessful additional litigation initiated past times wealthy parties, etc.
With abide by to the judges themselves, nosotros would want to catch the President of both the CJ in addition to GC Courts every bit much concerned almost character than he is almost quantity. Today, due to the concern generated past times the backlog of cases earlier both the GC in addition to the CJ, the metric of success of a justice has larn the number of cases shut past times each justice every year. Yet this ranking-based approach, which heavily relies on (internal) naming-and-shaming tools to stimulate judges to live to a greater extent than productive, has failed to deliver on its promises. This has largely to do, inwards our opinion, amongst the electrical current external lack of transparency – in addition to every bit a result, accountability – regarding inter alia the productivity of the members of the Court. This is non to say that the number of shut cases should live the alpha in addition to omega of the Court’s judicial policy. Indeed, nosotros would advise a broader word of judges’ accountability during their price amongst the catch of identifying quantitative every bit good every bit qualitative performance benchmarks for judges in addition to their cabinets to satisfy on a year-on-year basis.
More emphasis on the productivity of the members but measured inwards a less unsmooth agency may also create positive effects on the alternative of novel members. In this context, it would live a adept thought to ‘europeanise’ – de jure condito – the judicial alternative physical care for further. All Member U.S. should live mandated to lay out a populace call, in addition to so to lay forrad a listing of at to the lowest degree iii candidates for each judicial position, selected on the dry soil of a number of additional obligations regarding gender balance, administration skills in addition to professional person background of the applicants. H5N1 preferred candidate should in addition to so live indicated past times the judicial panel provided for past times Article 255 TFEU, which would accept into due line of piece of work concern human relationship the specific needs, inwards price of specialisation, of the Court. H5N1 reform of this nature could aid diversifying judicial alternative piece at the same fourth dimension preventing whatsoever national epistemic communities, live it academia, the national judiciary or politics – from monopolising judicial recruitment at European Union level. The term of the European Union judges’ mandate is some other surface area ripe for reform in addition to nosotros would personally favour a single, non-renewable term of nine years, amongst a prohibition on whatsoever transfer of judges from the GC to the CJ during a judge’s term to avoid disruptions.
Closely linked to the number discussed higher upwards is some other sensitive one: the recruitment in addition to supervision of back upwards staff. With a catch to improving both character in addition to productivity, nosotros would prioritise a review of the feudal rules that currently regulation the recruitment in addition to administration of référendaires, i.e. the European Union judges’ legal secretaries. In a few words, nosotros would favour the organization of a regular civil service examine for the whole CJEU to guarantee a mutual center of noesis inwards a number of areas; the adoption of updated in addition to uniform entry requirements (e.g. candidates should live qualified to practise constabulary or conduct maintain taught constabulary total fourth dimension at academy degree for a minimum number of years); in addition to the creation of a puddle of qualified candidates (or 2 pools amongst a junior in addition to a senior stream) from which judges could select their teams of legal secretaries who volition live automatically appointed in addition to retained for the duration of the relevant judge’s term every bit long every bit clear in addition to pre-defined performance targets are met. To promote best practices, compulsory in addition to regular attendance at administration (for judges) in addition to legal drafting (for legal secretaries) courses could live required. To favour stability in addition to motion away from the electrical current medieval arrangements, the legal assistants should no longer live contractually linked to a detail justice but to the Court. It would also live a adept thought to innovate on the ane hand, some basic elements of modern occupation constabulary such every bit the European Union rules that prohibit discrimination, in addition to on the other hand, internal whistleblowing rules every bit suggested past times the European Ombudsman inwards Jan 2014. Finally, to aid European Union judges in addition to their cabinets bargain amongst unusually complex and/or time-consuming cases, an additional, centralised puddle of highly qualified legal secretaries inwards sub-specialised areas of European Union Law (e.g. European Union taxation law) could live ready in addition to its members live ‘seconded’ on a case-by-case dry soil to relevant cabinets. H5N1 similar sense gained past times the GC inwards its early on days has been – according to many – real positive.
6. Looking beyond the workload challenge
Contrary to the dominant narrative, nosotros argued higher upwards that the existent challenge facing the Court today is to a greater extent than qualitative than quantitative inwards nature. We would thence tend to concur amongst the catch defended past times a number of European Union judges that the proposal to double the number of GC judges is ‘yesterday’s solution for yesterday’s problem’. Rather than only focusing on the GC in addition to its allegedly excessive backlog of cases, nosotros would welcome a broader reflection inwards the context of a to a greater extent than evidence-based in addition to inclusive framework. The urgent inquiry today is how to ensure that the CJEU volition rest an authoritative establishment delivering readable, prompt in addition to cogent rulings inwards a unique multicultural, multilingual in addition to multi-legal context.
As is frequently the representative inwards life, what makes the departure is the human factor. The CJEU is no exception. The solution to many of its challenges depends to a greater extent than on its agreement of human nature than the law. One may hope that the CJ’s novel President volition evidence to a greater extent than willing to encompass a subtler agreement of the many dynamics operating inside a judicial trunk in addition to to a greater extent than proactive than reactive when it comes to judicial reform. In our view, a amend scheme of incentives, a wiser purpose of psychological insights (e.g. peer-pressure), in addition to most fundamentally, a to a greater extent than opened upwards court, hope to a greater extent than than the proposed mechanical improver of to a greater extent than judges. Reforms of this nature would homecoming the Court to a greater extent than accountable to the exterior dry soil in addition to enhance, every bit a result, its legitimacy in addition to control at what is a real hard juncture for the European project.
Barnard & Peers: chapter 10
