APPENDIX 5: WRITTEN EVIDENCE OF ADVOCATE
GENERAL SHARPSTON
My submissions are confined to the Court of Justice,
before which I formerly appeared as counsel (representing the
UK in over 50 cases) and in which I now serve as an Advocate General.
1. Questions identified in the original call
for evidence
1.1 What are the significant issues highlighted
by the statistics relating to the past and current workload of
the Court of Justice, the General Court and the Civil Service
Tribunal?
Please see the Court's answer dated 28 October 2010,
submitted by the Registrar to the Committee under cover of the
letter dated 29 October 2010.
1.2 Are the turnaround times for disposal
of cases comparable to other courts of equivalent standing?
Please see the Court's answer dated 28 October 2010.
I would emphasise the point made at paragraph 16
of that answer, namely, that it is rather difficult to identify
any true comparator (i.e. 'other courts of equivalent standing')
to the EU courts. National supreme courts do not have to deal
with litigation in 23 official languages (implying both translation
of all written pleadings from the original into a common unofficial
working language and translation of official court texts—opinions
and judgments—into 23 authentic versions). Other international
courts, whilst multi-lingual, still do not have such a wide range
of equally authentic languages in which the totality of their
procedure may be conducted. Nor do they have to write and translate
judgments that will take immediate effect in the legal systems
of 27 Member States, each with its own legal culture and traditions.
It is trite to observe that the EU is a sui generis
legal order. Nevertheless, that has to be borne in mind when assessing
the operation of the EU's judicature.
1.3 Are the turnaround times for disposal
of cases acceptable to litigants?
Please see the Court's answer dated 28 October 2010.
I think it is fair to say that the recently-created
urgent preliminary ruling procedure (known within the Court and
often outside by its French acronym, 'PPU'—'procédure
préjudicielle d'urgence'), under which answers to urgent
queries relating to the Area of Freedom, Security and Justice
('AFSJ') have consistently been given to the referring court in
under three months, is recognised as working well so far. However,
please see further my answer to the next question (1.4).
1.4 What considerations, both from the recent
changes brought about by the Treaty of Lisbon and otherwise, are
likely to affect the workloads of these courts and to what extent?
The Court's answer dated 28 October 2010 identifies
a number of significant changes.
The single change most likely to increase the Court
of Justice's workload is the extension of the right to make references
that are likely to require PPU treatment (i.e. in matters involving
the AFSJ) to all courts and tribunals. Previously, only
'final' courts could make such references, which acted as a natural
filter. Thus far, the PPU has been triggered relatively seldom;
and the Court has managed to deal with each PPU expeditiously
without that impinging significantly on its handling of its normal
case-load. No very great exercise of the imagination is required
to see that matters would probably be rather different if the
Court were to receive (say) 50 requests per year for PPU treatment,
rather than less than 10 requests per year.
It is also clear that, historically, it takes a little
while from accession for practitioners in a 'new' Member State
to realise that EU law can be deployed to assist their clients
and for the courts of that Member State to start to make references
for a preliminary ruling to the Court of Justice. There does not
appear to be any 'normal' number of references per Member State.
Some Member States' courts refer often, others seldom. What can
be said, however, is that the Court is now starting to see an
increase in the number of references coming from the Member States
that acceded in 2004 (10) and 2007 (2).
1.5 Will accession by the EU to the ECHR affect
the working of these courts?
In a word, yes. What is much less easy to predict
is, precisely how. To a significant extent, that will depend upon
the detailed terms upon which such accession is negotiated.
1.6 What are the significant challenges and
impediments to the courts in handling their workload effectively
and expeditiously?
The Court of Justice operates with a language regime
of 23 official languages and a procedural framework in which all
Member States are privileged litigants who can intervene in any
procedure in their own language(s). This is a simple fact of life.
Its consequences are immensely far-reaching. Certain parts of
the total time taken by a case cannot be shortened by the
Court improving its working methods. By way of illustration: in
the procedure for dealing with a reference for a preliminary ruling,
translation time is required (a) to translate the order for reference
into all 23 languages and notify it to the Member States and EU
institutions; (b) to translate the written observations lodged
by any Member States that choose to intervene[202]
into the Court's working language (French) and also, where necessary,
into the language of procedure for the benefit of the parties;
(c) to translate the report for the hearing into the language
of procedure and notify it to the parties; (d) to translate the
Advocate General's opinion, if one is given, into both French
and the language of procedure,[203]
(e) to translate the judgment (drafted in French) into all languages.[204]
1.7 Are there any bottlenecks in the processes
of these courts?
As I have indicated, an appreciable increase in the
number of references requiring treatment under the PPU has the
potential to create a bottleneck in the handling of other cases.
That is because the same judges and advocates general handle PPUs
as handle ordinary cases.
The need for translation creates points in the processes
where time is necessarily spent not on case-handling per se, but
on waiting for the file to reach a state where it can be picked
up again and moved forward. In my view, it is slightly misleading
to describe this as a 'bottleneck' when it more closely resembles
a long conveyor belt. However, whatever be the appropriate simile,
in a multi-lingual court the need for translation is a fact of
life.
The Court is currently engaged in a complete review
of its rules of procedure (any changes suggested will, however,
need to be approved by the Council: please see further the answer
to question 2.1 below). We hope that will help to cut out any
procedural minutiae that have proved unnecessary and to streamline
the various procedures further. Frankly, given the structural
constraints (language, heavy reliance on written procedure requiring
translation,[205] Member
States' privileged status as interveners) which are, realistically,
immutable, I do not believe that there is much scope for making
a further radical reduction in the average time taken to process
cases at the Court of Justice.[206]
Members' mandates are for six years. Every three
years, there is therefore a partial renewal of mandates (half
the judges and half the Advocates General). In order to ensure
that judicial business is handled without interruption, it is
important to know who is being renewed and who is likely to be
replaced; but Member States do not always communicate this information
to the Court until rather late in the day. This can create a temporary
bottleneck (please see further the answer to question 2.7 below).
1.8 What measures would improve the working
of the courts, bearing in mind the limited possibility of Treaty
change?
Others will have addressed this issue. I limit myself
to one suggestion that relates closely to the work of the Advocates
General at the Court of Justice.
Given that many cases are still deemed complex and
difficult enough to warrant an opinion from the Advocate General,
consideration could actively be given to adding a further three
Advocates General to the Court of Justice (as promised in the
Declaration ad Article 252 TFEU),[207]
which would give the Court necessary additional manpower. The
ratio between Judges and Advocates General was 15:8 in 2003. It
is now 27:8. Approximately 52% of cases now proceed to judgment
without an opinion. That figure encompasses both cases that indubitably
do not require an opinion (for example, a simple direct
action brought by the Commission against a Member State involving
a failure to transpose a directive on time, decided by a chamber
of three judges) and other cases, important enough to be decided
by a chamber of five judges, where the decision not to have an
opinion may fairly be described both as more marginal and, to
some extent at least, influenced by the knowledge that 8 Advocates
General can only, with reasonable despatch, write a certain number
of opinions in the course of a given year.
I emphasise that this is a personal view, based partly
also on the fact that the Court has received a number of complaints
about cases (particularly tax cases) which have been decided without
an opinion. The arguments raised are essentially that, where the
issues are complex, an opinion is a necessary component in the
EU judicial process; and that judgments without opinions are harder
to understand and often lead to further references being made
to seek clarification.[208]
If it is not deemed desirable to increase
the number of Advocates General, the wording of Article 20 of
the Statute (which now reads 'Where it considers that the case
raises no new point of law, the Court may
decide, after hearing the Advocate-General, that the case shall
be determined without a submission from the
Advocate-General') should, I think, be changed so as to reverse
the default value from 'opinion' to 'no opinion' (thus, into 'Where
it considers that the case raises a new point
of law, the Court may decide, after hearing the Advocate-General,
that the case shall be determined with a
submission from the Advocate-General'). However, from the perspective
of ensuring consistency, coherence and clarity in the Court's
case-law, this would not be my preferred solution.
1.9 What could the Institutions and Member
States do to help the Courts dispose of cases more expeditiously?
The quality of the orders for reference made by national
courts (in preliminary rulings) and of the written and oral submissions
to the Court (in all procedures) has a very significant impact
on the speed and quality of the judicial process. Some are exemplary.
Some are, frankly, appalling. Much time is sometimes spent poring
over deficient submissions, trying to piece together missing background
material or pin down what (exactly) the national legislation says
in order to understand such fundamental issues as how national
law and EU law interact (and thus what the problem before the
national court actually involves), or why Member State X might
reasonably be advancing a particular point of view.
Improving the quality and consistency of the submissions
made to the Court would have a significant impact on the Court's
ability to dispose of cases more expeditiously. The Court can
and does offer guidance (available via the website) but is understandably
reluctant to issue uniform binding rules regulating, in detail,
how precisely lawyers from 27 different Member States should plead
cases before it.[209]
2. Suggested Questions for the Court of Justice
(8 and 9 November 2010)
2.1 In your submission you advocate procedural
autonomy. If you were given this what would be the priorities
for immediate change?
I agree that it would be desirable for the Court
of Justice to have a greater degree of control over how it manages
its own work (as other supreme courts generally do): currently,
any change to the Court's rules of procedure has to be approved
by the Council. As to what changes it would be desirable to propose,
the Court is—as I have indicated in my answer to question
1.7 above—in the process of revising its rules of procedure.
Since I sit on the Court's Rules of Procedure Committee, it would
be inappropriate for me to put forward any separate proposals
at this stage.
2.2 The Treaty provides for the General Court
to be given a preliminary reference jurisdiction. Should this
be done and if so what cases would be suitable?
Given that two of the principal issues often raised
in respect of references are (a) the need to get a swifter reply
to the national court and (b) the importance of ensuring uniformity
of interpretation (and hence of application) of EU law, I do not
think that the possibility offered by this Treaty provision should
be activated in the near future.
First, the General Court has, at the moment, rather
greater difficulties than the Court of Justice in terms of workload
and average length of procedures. Adding a category of cases to
its workload (references for a preliminary ruling) that by definition
requires to be handled expeditiously does not make sense.
Second, although in theory the subject-matter of
certain categories of references—or example, customs classification
cases, social security cases and requests for interpretation of
the rules governing the common organisation of the market in a
particular agricultural sector—lends itself to 'ring-fencing',
and those categories could thus be transferred to the General
Court, such cases have—historically—shown themselves
quite capable of raising issues of principle that go well beyond
the boundaries of their 'technical' subject-matter. It would therefore
be necessary to have some mechanism whereby (a) cases that raise
such issues do not get routed to the General Court, but remain
with the Court of Justice; and/or (b) if the true nature of the
case becomes clear only as it evolves, either the General Court
relinquishes jurisdiction of its own motion or the Court of Justice
has power to call the case in and decide it itself. However, such
a mechanism can—by definition—only work if someone
has the responsibility of exercising the necessary continuing
surveillance to ensure that cases are handled where they should
be handled. That begs the question: whose job is it going to be?
Here, as elsewhere, it must be borne in mind that the EU court
system works in 23 official languages, with unofficial translation
into French as the internal working language of the institution.
Thus, many of those reading any document will be reading
in a language which is not their mother tongue and in which, accordingly,
they work less fast. Effective surveillance will have a cost,
in terms of time and resources, that may be significant.
Finally, I recall that—as with the possibility
of review of decisions of the General Court on appeal from the
Civil Service Tribunal—such a transfer of jurisdiction would
carry with it the possibility that the General Court's decision
could be reviewed if necessary by the Court of Justice. The 'gatekeeper'
to the procedure is the First Advocate General, inasmuch as it
is his recommendation for a review that leads the Court of Justice
to decide whether or not a review is needed. The experience of
the last five years applying this procedure to General Court decisions
on appeal from the CST has not been particularly encouraging.[210]
Against that background, transferring jurisdiction
for particular categories of references would be of dubious benefit.
2.3 Should the Court of Justice be dealing
with technical references, for example in the fields of customs
and VAT, or direct actions against Member States which do not
raise issues of constitutional significance?
The short answer is that hitherto the Court of Justice
has not been a court whose role has been confined to dealing with
'issues of constitutional significance'. Rather, its function
(as conferred by the Treaty) has been to ensure that in the application
and interpretation of everything to do with EU law, 'the law is
observed'.
The so-called 'technical areas' are often matters
of considerable complexity, whose resolution one way or another
is likely to have a significant economic impact. A 'technical'
question may also raise a related question of constitutional principle
(such as the extent of direct effect, efficacy of enforcement
or recovery of damages against a Member State).[211]
It is in practice impossible to separate the technical aspects
and the constitutional aspects of such an action. Possible ways
of doing so, with monitoring/review/power to 'call in' a case
if it proves unexpectedly difficult or important have been canvassed
and examined by informal discussion groups and working parties
within the Court since I joined in 2006; and have been rejected
(primarily, because they were considered to be either impracticable
or ineffective).
A separate question is whether, within the
Court of Justice, there should be a greater degree of specialisation
(so that, for example, tax cases would go to a tax chamber; agriculture
cases to an agricultural law chamber, and so on).[212]
Historically, one of the strengths of the Court has been that
it has been full of generalists who turned their hand, as required,
to each specialist topic. Moving across to a different arrangement
might jeopardise that overview. Avoiding that outcome would probably
require either an increase in judicial manpower or a further modification
of the selection process (so as to recruit Members who were knowledgeable
both about EU law as a whole and about a specialist area
within EU law). It would also have quite sensitive implications
in terms of the existing procedures for appointment to the Court
(it is difficult to see how a Member State could be told that
it 'had' to send a Judge or an Advocate General with a background
in—for example—criminal law, or immigration, or social
security).
2.4 Commentators and witnesses to our inquiry
have suggested that in some areas of EU law, for example technical
areas or in relation to the Area of Freedom Security and Justice,
there is not the need for the same strict uniformity of interpretation
as the ECJ achieved in the past. What is your view?
I am afraid that I disagree categorically with that
suggestion.
Precisely because the answer to a question referred
in respect of one of the so-called 'technical areas' often has
a significant economic impact, it is extremely important not
to allow a situation to develop in which the single market is
undermined by variable interpretations by different national jurisdictions.
Just as within the confines of a single Member State interpretation
by a supreme court ensures uniformity of application in a way
that is cost- and resource-efficient, so it is with the function
performed by the Court of Justice in the context of the EU. As
already indicated (see my answer to the previous question), a
'technical' question may also raise a related question of constitutional
principle, to which a single uniform answer must necessarily be
given.
The AFSJ is an important new area of EU law, where
a number of key decisions of principle will need to be taken over
the next few years. Quintessentially, questions will be raised
involving fundamental rights and individual freedoms and the parameters
of State power. The legal provisions at issue must be interpreted
uniformly if there is to be any legal certainty and predictability
for persons exercising rights of free movement within the European
Union. The fact that the questions may also be sensitive is no
reason for departing from that basic principle.
2.5 Does the pressure to allocate cases to
small chambers affect the consistency of Court judgments?
I am not sure that the term 'pressure' is correct.
The reality is, rather, that the Court is conscious of the scale
of its workload and seeks to allocate cases to the size of chamber
that is appropriate to the case's complexity. Allocating a case
(where this is sensible, in case-handling terms) to a chamber
of three judges, or a chamber of five judges, rather than to the
Grand Chamber, represents a significant saving in judicial manpower.
As to whether the consistency of the Court's judgments
is affected adversely as a result, my answer would be, 'occasionally,
yes'. Here, I would make a distinction between the chambers of
three judges and the chambers of five judges. The former have
in the past generally dealt with the simpler cases; and—to
my knowledge—no real problems have arisen. The latter deal
both cases that are a little too complex to be handled by a chamber
of three, and with cases that are only just 'not worth' the Grand
Chamber. I suspect that everyone who follows the Court's case-law
closely has their own pet examples of divergent decisions by different
chambers of five judges.[213]
2.6 Is it necessary that judges experienced
in the legal system of the state relevant to the case or in the
subject matter at issue are involved in each case? If so, how
could this be achieved?
I am not convinced that, in practice, the former
has often proved a problem. Normally the Member State concerned
intervenes and explains (in writing and later orally, if a hearing
is held) the niceties of its legal system. Members of the formation
of judgment (in particular, the Reporting Judge) and the Advocate
General often ask questions precisely in order to elucidate such
detail. However, if it were thought desirable, the rules of procedure
could be amended so that, in this respect, they mirrored those
of the European Court of Human Rights and guaranteed that the
judge from the Member State whose court had made the reference
would always be part of the formation of judgment.
So far as the latter is concerned, national traditions
differ as to whether it is considered desirable to be able to
adjust the composition of the formation of judgment hearing a
case, so that those judges sit who have a particular expertise
in the subject-matter, or whether, on the contrary, this comes
dangerously close to violating the principle of the 'juge légal'.
It might also give rise to significant organisational difficulties.
On the possibility of creating specialist chambers within the
Court of Justice, please see the answer to question 2.3 above.
2.7 You have highlighted two bottlenecks,
the process for the replacement of judges and translations. What
are the potential solutions?
For the former: that Member States should let the
Court know as soon as possible whether or not they intend to re-nominate
an incumbent. By way of illustration: an Advocate General who
does not know whether he is being renewed cannot agree to sit
in a case with a hearing much later than early April and guarantee
that the resulting opinion will be written, translated and presented
before 6 October, the date on which, if not renewed, he will leave
the Court. A judge sitting in a case with an opinion might find
that he had to drop out before judgment was given. To guard against
the formation of judgment becoming inquorate, either he cannot
be used after a certain point or additional judges must sit as
well to guarantee that the quorum will be maintained, which is
inefficient.
For the latter (which I do not regard, strictly speaking,
as a bottleneck): the possible solutions are either politically
unacceptable (changing the language regime so as to reduce the
number of official languages used during the procedure and/or
to fail to make available the texts of opinions and judgments
that have an impact on the case-law in all official languages)[214]
or, at the very least, unpleasant (greater or lesser constraints
on the length of orders for reference and all written pleadings,
suppression of replies and rejoinders in direct actions save in
wholly exceptional cases).
There are those who regard hearings and/or an opinion
from the Advocate General as further unnecessary bottlenecks.
My impression is that 'users' of the system—particularly
those from the common law tradition—tend to find that, properly
focussed, both are rather useful.
2.8 To what extent can modern technology assist
the Court in dealing with cases efficiently?
Modern technology is already being used to assist
the Court in many aspects of its work, from the various (excellent)
internal databases used for legal research and to facilitate case-handling
to the computerised material available to the lawyer-linguists
to ensure rapid and consistent translation of the extracts from
EU legislation that appear in orders for reference or in pleadings.
The E-Curia project for lodging and notifying documents electronically
(currently being tested by the Court's Registry in collaboration
with Member States and the EU institutions prior to general release)
is a further illustration.
2.9 Practitioners in particular call for procedural
reforms to limit translations, to promote robust case management,
to make greater use of a focussed oral procedure, and to improve
the dialogue between the Court and the parties. What is your view?
My sense is that limiting the length of written submissions
(length being what determines the time needed for translation)
is unlikely to be welcomed/accepted by Member States (who control
the Court's rules of procedure: see my answer to question 2.1
above). I am unclear as to precisely what more 'robust case management'
would mean. To the extent that the Court routinely refuses permission
for a reply to be lodged in a direct action if one is not really
needed, puts specific questions to the parties for written answer
after it has read and analysed the pleadings, and tries to dispose
of cases by reasoned order rather than by judgement where possible,
such case management already exists. The Court likewise already
makes use of its power (a) not to hold a hearing in certain circumstances,
(b) to ask the parties (where there is a hearing) to concentrate
their oral pleading on certain points or to deal only with certain
questions.
It is not, however, possible to legislate for dialogue
between the Court and the parties—both sides must be prepared
to cooperate. In my experience thus far since joining the Court
in 2006, that has not always been achieved in every case. By that
I mean no more than that the different legal cultures within the
EU do not all have the same traditions in respect of such issues
as how to plead a case (in writing and orally), whether there
is a positive obligation to identify all relevant case-law and
deal with it, the degree of preparedness to field questions from
the bench at a hearing—or, indeed, how the bench should
ask questions.
2.10 In the past we have looked at (and discouraged)
the possibility of a separate competition court and now there
are calls for a specialist trade mark or intellectual property
court. What are your views on these suggestions? Should such courts
have jurisdiction to deal with preliminary references?
By way of background, I note that a request for an
Opinion is currently pending before the Court (Opinion 1/09) in
respect of the proposal to set up a body of courts/boards of appeal
outside the framework of the Court of Justice of the European
Union (qua institution) to deal with a future EU patent
regime. I take the question to refer, rather, to the possibility
of setting up a specialist court (or courts) below the General
Court (at the same level, therefore, as the Civil Service Tribunal).
Please see my answer to question 2.2 above, together
with Annex II below, for a description of the difficulties associated
with the present arrangements to ensure coherence and uniformity
through a review procedure. Those difficulties would only be exacerbated
if further specialist courts at the same level as the Civil Service
Tribunal were to be created without some radical change to that
review procedure.
In respect of the suggestion that jurisdiction to
deal with preliminary rulings should be transferred to such courts,
please see the second and third points in my answer to question
2.2 above (which would apply a fortiori to a transfer of
such jurisdiction not to the General Court, but to such other
specialised courts).
2.11 To what extent can Member States, other
institutions or litigants and their representatives, assist in
helping the Court meet the challenges it faces?
Please see my answer to questions 1.9 and 2.9 above.
Annex I
A comparison of the normal reference procedure
and the PPU
In creating the PPU, the Court of Justice was faced
with a conundrum. How could PPU cases (a) be given urgent treatment
and be decided very rapidly whilst (b) allowing all Member States
to exercise their rights as privileged interveners and (b) respecting
the 23 language regime?
The solution adopted is to permit only those
who can use the language of procedure (the parties, the Member
State concerned and the Commission) to lodge written observations,
normally within 10 working days (instead of the usual 2 months).
Meanwhile, the order for reference is translated into all other
languages so that the other Member States know what is at issue
and can decide whether to intervene. A hearing is listed within
about three weeks. In the meantime, the (short) written observations
are translated into the Court's unofficial working language (French)
and are made available to the Member States in that language and
the original.
Thus, a lot of time is gained at this stage, in comparison
with a normal reference. The cost is twofold. First, there are
no written submissions from other Member States and the written
material on the case is rather exiguous. Second, both the Reporting
Judge and the Advocate General will do a lot of additional work
before the hearing, trying to pin down the issues and pre-drafting
(respectively) a first version of the draft judgment and the draft
statement of position ('prise de position'), in the knowledge
that everything may change radically as a result of the hearing.
At the hearing (which will last significantly longer
than a normal hearing), Member States that intervene can make
oral submissions but cannot put in anything in writing. In practice,
therefore, they often try (literally) to read out loud at the
hearing the detailed (written) submissions that they would otherwise
have lodged (thus putting an enormous burden and responsibility
on the interpreters, who will have invested heavily in trying
to prepare for the unknown). It is also quite a tiring process
for the Court to listen to what would have been written submissions
delivered through interpretation (sometimes, through a relay,
e.g. Lithuanian to English, and then English to Portuguese).
Following the hearing, both the Advocate General
and the Reporting Judge are under intense pressure—the former,
to produce his statement of position (revised or sometimes entirely
rewritten in the light of the hearing) within 48 hours; the latter
to submit a draft judgment to his colleagues for deliberation
so that the text can be deliberated, finalised and translated
for delivery within (if possible) a couple of weeks of the hearing.
Experience shows that the Court can manage
to do this. It will also be evident that some (not insignificant)
disruption of normal work is inevitable, for everyone concerned
(the judges, the Advocate General, translators, interpreters,
the Registry). Member States dislike being put under pressure
to write briefly and quickly (if they are the Member State from
which the reference comes). They dislike even more being unable
to lodge written observations and having instead to put their
submissions orally. The procedure works as a technique for reconciling
the irreconcilable (as I indicated at the beginning of this Annex).
I find it difficult to conceive that it would ever be accepted
as a substitute for the normal procedure in normal references.
If it were, the number of cases that the Court could handle in
any year would decrease sharply, because every PPU is much more
demanding of resources within the Court than a normal case.
Annex II
The review procedure—experience of the review
of staff cases decided by the General Court on appeal from the
Civil Service Tribunal
One of the innovations brought about by the Treaty
of Nice was the possibility for specialist tribunals to be created,
from which an appeal lies to the General Court. As a safeguard
to ensure uniformity of interpretation, however, an additional
mechanism was introduced whereby, following a recommendation by
the First Advocate General, the Court of Justice may (exceptionally)
decide to review the General Court's decision if it considers
that that decision represents a serious threat to the coherence
and uniformity of EU law. Obviously some such safeguard mechanism
is essential if coherence and uniformity are to be guaranteed.
What this means in practice is that, in addition
to dealing with his own one-eighth of all cases and allocating
cases between Advocates General in parallel with the President's
allocation of cases to reporting judges, the First Advocate General
has to review every single judgment and order of the General Court
relating to a staff case originally dealt with by the Civil Service
Tribunal, decide whether or not to recommend a review and (if
so) write a reasoned analysis of why a review is necessary, all
within a fixed time-frame (1 month). It is not unusual for multiple
judgments or orders to be issued just before Christmas and again
before the summer break. Should the First Advocate General recommend
a review, the Court of Justice is then required—again, within
one month—to decide whether or not to proceed with such
a review.
The procedure is cumbersome and time-consuming. It
raises obvious issues about whether, if there is a review, the
same Advocate General and a composition of court including judges
who participated in the decision whether or not to conduct a review
may deal with the case, or whether the review should be handled
de novo by a completely different bench assisted by a different
Advocate General. It is a very resource-inefficient procedure.
I know that I am not alone in hoping devoutly that further specialist
tribunals at the same level as the Civil Service Tribunal will
not be created, unless this mechanism is, at the same time, radically
overhauled.
The Treaty of Nice envisages that, should certain
categories of references for a preliminary ruling be transferred
to the General Court, a procedure that is in all material respects
identical to this existing review procedure should come into effect
so as to ensure that the General Court's decisions should be open
to review by the Court of Justice. Any such transfer of jurisdiction
would indeed have to include some review mechanism to guarantee
coherence and uniformity. However, the last five years' experience
of reviewing staff cases decided by the General Court on appeal
from the CST has shown that the existing procedure is burdensome
for the First Advocate General (indeed, denaturing his normal
role as a Member of the Court) and creates appreciable additional
work for the Court of Justice as an institution. Taken in conjunction
with other factors identified in the main text, that experience
strongly suggests that transferring jurisdiction for categories
of references for a preliminary ruling to the General Court—unless
the review mechanism were, at the same time, radically overhauled,
would not be sensible.
202 They have 2 months in which to do so. Back
203
The opinion will, in due course, be translated into all languages;
but it is standard practice to require only the versions in French
and the language of procedure to be available before the opinion
is formally delivered. In the PPU, the Advocates General have
all agreed to deliver their statements of position in French,
precisely in order to save on translation time, even though this
creates certain difficulties and imposes additional constraints. Back
204
The suggestion advanced by the Law Society, that all judgments
be drafted in the appropriate language of procedure, would require
a degree of linguistic mastery which I am afraid no single member
of the Court possesses (still less, all of us!). It is quite difficult
enough to express legal reasoning in a working language (French)
that, if one is lucky, is one's second language (as is my case).
If one is less lucky, the working language may be the Member's
fifth language (after, for example, mother tongue, Russian, English
and German). Judges have to deliberate and amend a draft text
in a language that they share. If the text originated in one of
23 languages, it would presumably be produced by the judge whose
language that was (who would therefore have automatically to be
part of the formation of judgment-not the present procedure).
Once that had been done, however, it would still have to be translated
into a common tongue to be deliberated upon and at that stage
the text would have to be covered by the 'secret du délibéré'
(i.e. it would be confidential, and all exchanges concerning it
would have to be treated as such). Even if the necessary reiterative
confidential translation could be arranged, the effect would not
be to speed up the Court's processes-rather the reverse. Back
205
Reliance primarily on written procedure is partly a function of
the civilian legal tradition, partly a reflection of the fact
that, within a linguistically complex judicature, it is easier
to grasp legal argument if one has a chance to study it calmly
in writing rather than trying to follow it-often through simultaneous
interpretation-orally at a hearing. Please see Annex I for a comparison
of the PPU procedure and the normal procedure in this respect. Back
206
The Court has made good use of the additional judicial manpower
that it received as a result of the 2004 and 2007 accessions,
coupled with a number of internal changes to working practices,
to reduce the backlog of cases pending before it (particularly,
references for a preliminary ruling). Please see the Court's answer
dated 28 October 2010. Back
207
Currently each Advocate General handles one eighth of the Court's
total case-load. Each case in the Advocate General's docket
is studied (not merely the cases in which a public opinion is
prepared). The full file in every case that proceeds to judgment
without an opinion, or that is disposed of by order, has therefore
also been analysed in detail and suggestions made as to it should
be handled. Back
208
See, for example, the Opinion Statement of the CFE [Confédération
fiscale européenne] on ECJ Advocate General Opinions
in Tax Matters, available at
http://www.cfe-eutax.org/sites/default/files/CFE%20Opinion%20Statment_AdvGen%20revPB.pdf Back
209
Thus, the rules of procedure specify such matters as the minimum
content for an application, but leave the detail to the individual
practitioner. Individual Member States could however take the
initiative, via appropriate training programmes, to improve the
quality of what they themselves lodge. They could also encourage
the relevant professional bodies to provide practical information
to their members who represent individual litigants as to how
to make their pleadings more helpful and effective. (I personally
would be happy to take this point further in a UK context, if
I were asked to do so.) Back
210
Please see Annex II for a more detailed explanation. Back
211
See, for example, Case C-91/92 Faccini Dori [1994] ECR
I3325 (consumer protection in distance selling) and compare
Case C-194/94 CIA Security International v Signalson
and Securitel [1996] ECR I-2201 (notification of technical
standard) (both cases concern the extent of direct effect), Joined
Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR
I-8835 (interpretation of technical rules on calculation of 'working'
time) (efficacy of enforcement of rights under EU law) and Joined
Cases C-6/90 and C-9/90 Francovich [1991] ECR I-5357 (technical
interpretation of directive on employees' rights if their employer
becomes insolvent) (availability of damages against a Member State). Back
212
Informally, this happens to some extent within the present system,
inasmuch as similar cases in a series are often, for a time, allocated
to the same Reporting Judge and/or the same Advocate General so
as to reap the benefits of acquired knowledge. At a certain point,
however, a different 'team' of Reporting Judge and Advocate General
will take over and do further cases in the series, so as to avoid
the risk of over-specialisation and inflexibility of approach. Back
213
An illustration might be the rather different interpretation of
'individual concern' in Case C-125/06 P Infront (Fourth
Chamber) and in Case C-362/06 P Sahlstedt (Second Chamber).
Coincidentally, the cases had the same Advocate General (Advocate
General Bot), whose two opinions are, unsurprisingly, consistent
with each other. Back
214
The Court already operates a system whereby cases that are not
intended for publication in the official court reports because
they are not considered to alter/develop the case law are made
available on the Court's website only in the languages that are
available (normally, as a minimum, the language of procedure and
French). They are not translated into all languages. Back
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