Doubling the number of judges of the General Court – A breakthrough or blow for justice?

The General Court is facing an increasing workload, and questions on whether legal redress in the European Union (EU) can be guaranteed within a reasonable time have started to arise. On 3 December 2015 a Regulation (Regulation of the European Parliament and of the Council amending Protocol No. 3 on the Statue of the Court of Justice of the European Union) was therefore adopted with the aim of reforming the General Court in order to lessen the workload of the judges. However, the reform has been subjected to criticism for a multitude of reasons, one of them being whether the envisaged benefits of such a reform would really be actualized?

Introduction

The General Court is the court of first instance (as it was also previously known before the entry into force of the Treaty of Lisbon) for many decisions within the competence of the EU initiated primarily by the Commission and other EU institutions and bodies.
Previous to the reform, the General Court was composed of 28 judges (see Art. 48 of Protocol No. 3 on the Statute of the Court of Justice of the European Union). The reform includes three stages, which by 2019 will lead to the doubling of the number of judges at the General Court, i.e. from 28 to 56 judges. They will be appointed by the “common accord” of the Member States’ governments, and each Member State will nominate a judge. However, this reform does not modify the requirements for the appointment procedure.  The main reason for the reform is to avoid unnecessary expenditures while reducing the waiting period for a ruling.

On 23 March 2016, the first step of the reform was partly enacted where it was decided that 15 judges would be appointed to the General Court. However, this resulted only in seven new appointments, while eight judges already sitting on the Court have been re-appointed according to the partial renewal of the Court. The first stage of the reform is yet to be completed as five more judges will have to be appointed. Thus, in total, there will be 12 new judges appointed according to the first step. The second stage includes appointing seven new judges which are in fact transferred directly from the Civil Service Tribunal which will be merged with the General Court. Lastly, the third step is to appoint nine new judges in 2019.

Reasons for reforming the General Court

Ever since its creation, and as a consequence of its progressive jurisdictional expansion, the General Court’s caseload has rapidly been increasing from 600 cases per year in 2010, to 912 in 2014. This increase is immensely time consuming and the workload of the General Court prevents  it from delivering judgments within a reasonable time. The time to issue a judgment is currently two years on average, which is twice as long as what is usually seen as permissible. Concerning state aid, intellectual property and competition cases, the average time to deliver a judgment is between four and five years. This has created many issues, according to Peter Teffer, journalist of the EU observer. He reports in his article, which is based on a Q&A published on 23 June 2015, that it has, inter alia, caused problems for litigants since their important financial resources pending a judgment must be kept aside. This, in turn, negatively affects economic growth and jobs. As the Q&A explains, the increasing number of judges would allow the General Court to give sufficient and satisfying attention to cases brought before it. There would for example be a possibility to deliberate in larger chambers more often, in order to enable a more thorough discussion on cases regarding questions of significant legal value.

The Q&A further explains that the costs for appointing additional judges would be rather limited (€13.5 million per year), in comparison to what is claimed for delays in judgements in different actions for damages (€26.8 million). According to Franklin Dehousse, judge of the General Court, however, the doubling of judges is “manifestly excessive” and amounted to “useless spending’s” (see his paper).

According to the Article 3 of the Regulation establishing the reforms, the CJEU will have to report on the functioning of the General Court, and make legislative proposals to amend its statute where appropriate. Thus, the Regulation entails a five-year project.

The General Court reform, target missed?

In a very simplistic way, in the Q&A, the Council seems to defend the reform on the grounds of economic savings and the reduction of case backlog. However, this agreement faces a lot of criticism from scholars (such as Dehousse) who believe that this purely mechanical approach will not resolve the situation. Indeed, according to a part of the doctrine, doubling the number of judges would risk to miss the need to find a balance between the right of the individuals to access justice, and the cost of such a reform.

What could have been of particular interest, but has been regularly disregarded by the EU institutions, is the alternative of the creation of specialized Courts. The ability to create such instances was ensured through article 257 TFEU. Nevertheless, this possibility was only used once, creating the Civil Service Tribunal, which will now be incorporated in the General Court. The tribunal however, proved to be ineffective mainly due to the poor amount of cases being brought before it. Nonetheless, recital 3 in the preamble to the Regulation refers explicitly to the complexity and volume of for example “intellectual property cases”, which was one of the reason behind the reform. One could wonder if it could have been preferable to create a specialized intellectual property court in that area, such as the Unified Patent Court (for a better understanding, see this blog post), which is already in process of establishment. Furthermore, it is likely that such a court would not risk being ineffective as the Civil Service Tribunal was proven to be.

Not taking into account this possibility, clearly constitutes a missed opportunity to achieve the objective of the case backlog reduction. This possibility could ensure a better practical protection of individuals rights through Courts that employ judges and legal secretaries with legal expertise in special matters. To counter this idea, the Council mentions in the Q&A that the creation of specialized courts in this instance would not be a viable option for several reasons. Mainly, specialized courts would lead to an increased risk of the inconsistency of EU law. According to the Council, it would be problematic if the three different European courts could have jurisdiction to rule on the same legal question of a case through different judicial procedures. Moreover, the Council argues that specialized courts “add complexity” and lead to unnecessary expenditures.

While the first argument of the Council seems reasonable, it would not exclude the same outcome when increasing the number of judges to 56. Will there really be a uniformity of interpretation and consistency between all the different chambers that will compose the court? The answer cannot certainly be answered in absolute terms which is why the argument of the Council does not seem to hold much substantial weight.  Furthermore, the creation of a new specialized court would not be revolutionizing since it is a system already familiar to national legal orders, where specialized instances are established already. There may be grey areas, but it seems as if there are few issues concerning the question of competing jurisdictions in domestic legal orders regarding specialized courts. From the litigant’s perspective, it may be easier to foresee where an application should be submitted. However, this does not diminish the fact that the legal expertise inherent in a specialized court may enable a more thorough deliberation of cases. With less expenditures due to the lower number of judges appointed to a case, it seems as a more profitable and effective solution rather than having larger and more chambers sitting in the General Court.

All in all, even though the reform is needed, one could wonder whether this is the best way to solve the issue of caseload concerning the General Court. The problem could be better solved through establishing a specialized court. Supporting this view, Marc Jaeger, the president of the General Court, in 2009 stated here that “[i]t is therefore the second avenue which should be explored, namely that of reforming the judicial structure”.

Negin Hamedanian Torghi, Pierre Lempereur, Alexandra Mihaltan

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About eulaworebro

Örebro Universitet (Sweden)
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3 Responses to Doubling the number of judges of the General Court – A breakthrough or blow for justice?

  1. Anton Öberg says:

    The idea behind the reform itself seems favorable, since the slow pace of cases within the EU is unacceptable. Further, the Council is of the opinion that more judges in the general court is a better solution than specialized courts. The risk of inconsistencies of EU law is a valid point, but it could still exist with an expansion of the general court. Of course we assume that judges are as objective as possible, but realistically, we know that uniformity is not completely achieved even within single courts. More judges, no matter if within the same court or different specialized courts, will mean more individuals applying and interpreting EU law. As such, inconsistencies will occur no matter which solution is chosen. This is, however, not to say that the risk is not bigger with specialized courts. The point is that inconsistent application and interpretation of EU law is not solved by having one general court with twice as many judges. Lastly, the reform should be welcomed, since any attempts to speed up the EU’s judicial system and strengthen the access to justice are positive.

  2. Yasmin Semmane says:

    Increasing the number of judges in the ECJ is not an uncontroversial reform. It is true that even with a judge rotation system inconsistencies could appear, however, I believe that remaining in a same court will reduce the risk of these inconsistencies. In fact, judges are individuals who are tight together by some kind of loyalty to form a unique court, a loyalty that might be missing in the case of creating an independent court.

    A specialized court is usually composed of experts on a certain topic. The role of such a court is probably to point out specificities and aspects that a general court might overlook. As a consequence, creating a specialized and independent court has a higher risk to have two contradictory jurisprudences from the general and the specialized courts. This reform shows therefore that the unity of the court is preferred over the expertise on a certain branch of law. One could argue that with a unique court, it is much simpler for the applicant to know where to appeal, but this argument is easily reversed by saying that in most of the cases requests are made by lawyers who are familiar with the judicial procedure. Thus, independent courts are not a relevant issue for the speed up of EU´s judicial system or access to justice.

  3. Julia Steen says:

    The fact that the General Court is faced with a high and also increasing workload is indisputable and actions are needed. The present reform is however criticized, but in the end of the day the aim is to reduce the workload and the measure taken will presumably reach such aim. Increasing the number of judges would reduce the volume of already pending cases as well as the duration of the proceedings. So the argument by Dehouse that such ‘mechanical approach’ will not reduce existing backlog of cases is somewhat unclear. It is argued that a specialized court would facilitate to better practical protection of the individual. Even though a specialized court would employ judges with legal expertise within a specific legal area which most likely would provide a more adequate interpretation, to reform the General Court do not eliminate such practice. Division due to legal competence and expertise in specialized chambers or other structural changes within the General Court is an opportunity that may provide similar results. Also, more judges within the General Court could facilitate to an increased legal certainty since, if needed, the opportunity to have larger chambers in cases with significant legal values, arises. One may wonder if the same possibility could occur in a specialized court to the same extent. Further, the number of cases within a specific area of law could presently be high, and if a special court would be established within such area of law the amount of cases brought before it would likely be high, but that could change during time and the effectiveness of the that court would then be questioned. The Civil Service Tribunal is an example of that. If the establishment of specialized courts within the EU legal system would become a common practice, not only could the uniformity of the interpretation of EU law be at risk since several courts, with different jurisdiction, could interpret the same legal rules, but also in a long-term perspective it could lead to (unwanted) fragmentation within the EU system.

    Another advantage with the present reform could be that the number of judges will be increased progressively and be imbedded in an already existing court system. Also, one may assume that no major changes would be excepted by the Member State with regards to appointment procedures to the General Court since they may appoint two judges instead of one and not to a new specialized court.

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