Where Produce Nosotros Stand Upward On The Reform Of The Eu’S Courtroom System? On A Reform Equally Short-Sighted Equally The Attempts To Forcefulness Through Its Adoption
November 25, 2018
Edit
1. Background
To ‘reinforce the efficiency of justice at European Union level’, the Court of Justice of the EU suggested inward 2011 the appointment of 12 extra judges at its lower illustration court, the General Court (GC), earlier eventually requesting a total of nine novel judges inward 2013. However, next persistent disagreements betwixt the Member States on how to rotate the appointments betwixt themselves, this asking was removed from a packet of reforms to the Statute of the CJEU aimed at tackling the growing workload. The Court of Justice eventually proposed inward Oct 2014 to double the number of judges working at the GC, from 28 (one for Member State) to 56 (two per Member State). To trim the economical burden, which would ensue from the proposed reform, it equally good recommended abolishing the Civil Service Tribunal (CST) together with ‘upgrading’ its vii judges to the General Court. For to a greater extent than on the background, reckon here.
In a previous post, nosotros questioned both the diagnosis together with the solutions proposed past times the CJEU. We offered the see that the ‘real challenge facing the Court today is to a greater extent than qualitative than quantitative inward nature’ together with called for ‘a broader reflection inward the context of a to a greater extent than evidence-based together with inclusive framework.’
In a follow-up post, our colleague Steve Peers argued that the lack of a proper intelligence on the merits of the reform together with attempts to quiet critics would most probable damage the Court’s authority. He farther suggested a compromise solution which would consist of the EP agreeing to the Court’s proposal with a sunset clause, according to which the novel extra GC judges would serve i term alone at the halt of which a total acquit upon assessment of whether the ask for extra judges is required.
To pre-empt whatsoever suspicion of potential conflicts of involvement inward an European Union ‘ecosystem’ which is non characterised past times watertight bulkheads betwixt the legislative together with judicial branches, nosotros would forthwith travel tempted to suggest the adoption of an additional clause. In other words, the actors involved inward the adoption of the Court’s proposal, who would travel eligible to travel with the novel judges (e.g. MEPs, European Parliament together with Council officials), would commit non to bring upwardly those positions.
No thespian involved inward the ongoing legislative physical care for has withal shown visible involvement inward discussing clauses of this nature. Indeed, for all intent together with purposes, the Court’s proposal to double the number of GC judges together with abolish the CST has secured the quasi-unanimous back upwardly of the Council, with alone the U.K. voting against it on the grounds that the novel proposal is non a proportionate agency to bargain with the GC’s backlog (Belgium together with the Netherlands equally good abstained). Interestingly, the U.K. Minister for Europe stated final March that ‘[o]ther Member States equally good expressed doubts that this was the best agency to address this problem, or that all these judges are truly needed. Nevertheless, subsequently 4 years of negotiations, many Member States together with the European Union institutions receive got concluded that this is the to the lowest degree bad proposal on the table, together with that it volition interruption the deadlock together with better the capacity of the General Court.’
Be that equally it may, the Council’s position, which was formally adopted on 23 June, unreservedly accepts the CJEU’s diagnosis together with solutions, together with is forthwith currently examined past times the European Parliament.
In this post, nosotros outline the serious concerns lately voiced past times the European Parliament’s Rapporteur, Mr Antonio Marinho e Pinto, earlier outlining our ain concerns with abide by to how the debate (or lack thereof) is beingness conducted at the European Parliament.
2. The Rapporteur’s Case Against the CJEU’s Proposal
In the explanatory statement, which follows the text of the draft European Parliament legislative resolution on the Council seat at outset reading, the Rapporteur makes clear his strong opposition to the proposal to double the number of GC judges together with offers a number of venture arguments inward back upwardly of this view. These arguments are summarised below.
The Rapporteur outset expresses doubts most why 28 novel judges together with the abolition of the CST are all of a abrupt required when the Court of Justice itself suggested inward 2013 that nine novel GC judges were sufficient to address the steady increase inward the number of cases earlier the GC over the years.
Secondly, the CJEU’s proposal is presented equally showing ‘deep contempt for European taxpayers’ money’ together with amounting to a frivolous increase inward spending at a fourth dimension of widespread austerity together with a full general commitment past times European Union institutions to trim employee numbers past times around 5 %.
Thirdly, the proposal defended past times the CJEU would undermine the prestige of the CJEU itself past times suggesting that nosotros should appoint judges inward the same agency that European Union commissioners are appointed. It is farther suggested that the priority should instead travel to reform the appointment arrangement of European Union judges with the see of appointing them for a longer but unmarried term of nine years (as opposed to a renewable term of 6-year) together with ensuring to a greater extent than equal gender representation on the bench.
Fourthly, the study argues that the amended asking past times the CJEU to amend its Statute via a unproblematic missive of the alphabet addressed to the Italian Presidency of the Council was set forrad inward Oct 2014 is inward breach of relevant procedural rules. Notwithstanding the doubtful appropriateness of presenting an amended proposal via a mere letter, the study stresses that a novel legislative physical care for ought to receive got been initiated equally what is beingness forthwith discussed (the appointment of 28 novel judges together with the abolition of an existing European Union court) is of a significantly unlike nature.
Fifthly, the lack of whatsoever acquit upon assessment, which never materialised despite the CJEU’s previous commitment to undertake one, combined with the lack of consultation of relevant institutions (for instance, the European Commission’s see was prepared when the proposal was to increase the number of GC judges past times 12), suggests that this reform has been rushed through with no attending beingness paid to ensuring both internal together with external transparency together with due regard to relevant procedural obligations.
Sixthly, the European Union Treaties furnish for the creation of specialist courts together with hence rather than abolishing the CST - inward the absence of whatsoever legal ground for doing together with so - the possibility of creating novel specialist courts, inward special for trademarks together with patents, should travel explored. Judicial reform should non inward whatsoever lawsuit travel devised on the ground of the Council’s inability to brand judicial appointments together with ‘force reality to adapt to [the Council’s] ossified ways of working.’
Seventhly, the number of compensation for possible delays with GC decisions is dismissed equally ‘pure smoke together with mirrors’, equally the Strasbourg Court itself ‘takes the see that the correct to compensation for delays inward justice arises alone when at that spot is a delay of to a greater extent than than v years’, which is far from beingness the province of affairs at the GC.
Last but non least, it is submitted that ‘the figures provided past times the CJEU on the outstanding GC cases together with the average duration of these cases are contradicted past times the figures provided past times the President together with past times the GC judges during their hearing earlier the Legal Affairs Committee inward Strasbourg, at the invitation of the rapporteur.’ (This number lonely should telephone band inward our see closer scrutiny together with a genuine world debate on the proposed reform).
3. The Rapporteur’s Proposal
In the lite of the reasons laid out above, the rapporteur suggests to turn down the CJEU’s proposal together with to consider instead the adoption of an alternative reform package, which would consist of the next elements:
- The appointment of to a greater extent than staff at the Registry together with inward the translation services;
- The appointment of xix to a greater extent than legal secretaries (référendaires);
- The appointment of upwardly to 12 novel judges at the GC but alone ‘if the Court of Justice furnishes detailed prove showing it to travel objectively necessary inward the lite of the tendency inward the caseload for the General Court inward 2015’;
- The setting upwardly of a commission of experts to analyse the advantages together with disadvantages of creating a novel courtroom specialising inward trademarks, patents together with intellectual property.
- The establishment past times Parliament together with the Council of a articulation commission of experts to analyse the overall workings of the CJEU together with brand suggestions to better its functioning together with legitimacy past times looking for illustration into the recruitment of judges through opened upwardly tender from with police describe professors of repute together with judges from the high courts of each Member State; the appointment of each approximate for a unmarried term of nine years only; novel rules to guarantee gender parity inward the recruitment of judges;
- The monitoring of the European Union courts past times the European Committee for the Efficiency of Justice (CEPEJ) on the same price equally the courts of the Member States of the Council of Europe.
4. Procedural concerns
Rather than explaining why the diagnosis together with laid of solutions suggested to a higher identify seem to us a to a greater extent than promising avenue than the solutions set forrad past times the CJEU together with supported past times the Council, nosotros shall utilization this post to limited a number of concerns with abide by to how the ongoing legislative physical care for is conducted.
First of all, nosotros regret the lack of whatsoever rigorous together with opened upwardly information collection on the root causes justifying this reform equally good equally the absence of whatsoever prospective analysis of its acquit upon (see e.g. here).
Secondly, nosotros break that the CJEU appears to travel engaged inward a subtle yet unorthodox lobbying physical care for (as lately reported inward the press here). This raises a number of questions with abide by to the Court’s understanding of the regulation of institutional ease together with that of loyal cooperation. It would appear to a greater extent than appropriate for the Court – the guardian of the European Union legal lodge – to confine its joint advocacy to Earth domain rather than seeking to travel direct involved inward the legislative physical care for via informal ‘quadrilogue’ meetings. Thus, i would await the Court to systematically inform Earth when its members see other European Union institutions to verbalize over pending legislative matters and, to say the least, study on the outcome of whatsoever such discussions.
But is non alone the Court’s demeanour that raises concerns. The European Parliament’s activity equally good calls for attention. In special its JURI commission responsible for the dossier owes Earth an explanation for a number of procedural glitches that receive got characterised the parliamentary intelligence of the reform, including those listed below:
- Why was Pinto’s report presented on fifteen September to the JURI Committee past times an MEP belonging non alone to some other political grouping but equally good coming from Luxembourg, the rattling province which hosts the CJEU together with stands to practise goodness most from whatsoever additional resources granted to it?
- Was the forthwith temporary appointment of the MEP from Grand Duchy of Luxembourg equally Rapporteur the outcome of a foiled test to dismiss Pinto inward violation of the Parliament’s procedural rules together with conventions equally reported here?
- What is the explanation for the absence of whatsoever translation of the Explanatory Report (originally written inward Portuguese) on the solar daytime Pinto’s draft recommendation together with suggested amendments were to travel debated on September 15?
- Why is the documentation together with correspondence (i.e. ‘Annexes’) mentioned at the rattling halt of the Explanatory Report soundless non available?
The absence of whatsoever translated version of the Annexes is especially prejudicial to a well-informed parliamentary debate. The MEPs – whose amendments are expected past times 23 September – are deprived of the chance to consult a GC document, which, according to the rapporteur mightiness enquiry the ask for the proposed reform past times offering facts together with figures contradicting those presented past times the CJEU.
When analysed together, the amount of these elements suggests a pattern of procedural irregularities whose alone aim seems to travel the speedy adoption of the reform. More troublingly, it may equally good travel construed equally a articulation advocacy strategy designed to systematically eliminate whatsoever chance for a public, good informed together with evidence-based debate.
When it comes to a reform carrying constitutional implications together with having at its centre the functioning of the ‘supreme courtroom of the land’, i mightiness await to a greater extent than attending to travel paid non alone to the merits but equally good to the forms.
5. Conclusions
The proposal, which is forthwith beingness examined past times the European Parliament, bears picayune resemblance to the 2011 proposal on the ground of which the electrical current legislative physical care for was initiated. This calls into serious question non alone the procedural legality but equally good the legitimacy of the whole reform process.
We are non surprised to reckon strong institutional together with private back upwardly for the Court’s proposal inside the EU’s legal epistemic community. Don’t nosotros – lawyers – all receive got to a greater extent than to win than to lose from the multiplication of attain judicial posts?
Be that equally it may, nosotros suspect that should this reform become through (as it appears likely), damaging prove mightiness yet come upwardly to lite together with the authorization together with legitimacy of relevant European Union institutions volition travel farther undermined at a fourth dimension where they receive got picayune to spare.
This is why the strategy that has accompanied together with volition eventually secure the adoption of such reform may travel said to travel equally short-sighted equally the reform itself.
Barnard & Peers: chapter 10
Photo credit: Britannica.com
