Court Reports
Civitas, 13 April 2011
Having spent months examining the workings of the judicial arm of the EU, the House of Lords EU Committee has predicted that a “crisis of workload” could be on the near horizon. Without urgent and far-reaching structural reform, the Committee warns, the CJEU risks sinking under its own weight.
In 2000, the Due Report found serious structural problems with the Court, concluding that “the Community court system has not been able to face the constant growth of litigation and can no longer hear and determine the cases brought before it within an acceptable period of time”. Since then, the situation has only deteriorated. In 2005, the EU experienced “the largest round of enlargement in the EU’s history”, and the Lisbon Treaty endorsed the creep of the CJEU’s jurisdiction into the area of Freedom, Security and Justice. It seems that, once again, the Court is unable to cope.
Of each of the three branches of the CJEU, the General Court (formerly the Court of First Instance) was the most heavily criticised, whilst only the Civil Service Tribunal emerged as a “success story”. With a typical case involving “five, seven or 10 applicants” challenging a 600 page European Commission decision, and files reaching 20,000 pages, it is perhaps unsurprising that the GC struggles to manage its excessive caseload. However, the delays for litigants can be extreme; the Confederation of British Industry has reported that the GC takes, on average, 33.1 months to rule on a competition case, a “clearly unacceptable” situation.
These delays are commonly attributed to the massive translation effort Court staff must undertake; all documents, pleadings and judgements, have to be translated into French (the Court’s official working language), and many ECJ papers need to be reproduced in all 23 of the EU’s official languages. Indeed, in 2009, the Court’s translation department had to wade through 800,000 pages of legal documentation. Nonetheless, the Lords’ Report rejected this “popular opinion”.
According to the Committee, there is only one viable solution to the Court’s workload ills: increase the size of the judiciary. Not only will this reduce the time it takes for a case to be completed, the Committee argues, but it will also help improve the quality of the decision making. Although increasing the number of judges at the first tier Court of Justice (which currently stands at one judge per member state) would require a treaty revision, the Lisbon Treaty already includes provision for the appointment of additional Advocate Generals, with the unanimous approval of all the member states. As for the General Court, the Report argues that it “must surely be possible for the Council to agree to appoint the necessary number [of judges]…We suggest one third [of 27] might be a reasonable number on a rotating basis”. Further reform could involve evaluating the potential litigious fallout of new legislation in its accompanying impact assessment.
The Report begins with a sober warning: “In an EU of 27 Member States covering 500 million citizens, speaking 23 official languages, in simply fulfilling its role the CJEU confronts unique difficulties.” Undoubtedly, the reforms proposed would have significant financial implications, adding to the CJEU’s current annual budget of more than €334 million. Yet inertia could have more devastating costs. The old adage ‘justice delayed is justice denied’ has long been levelled at courts across the world; yet, especially in a system that struggles to win legitimacy and support with many under its jurisdiction, the maxim rings particularly true for the CJEU. “Whilst we recognise the Government’s argument regarding the current economic climate,” the Report argues, “there is a cost for litigants and individuals in allowing the EU’s judicial institution to suffer sclerosis in the delivery of justice”. Failure to act will further undermine the legitimacy of the Court, and threaten to bring “both the CJEU and the wider EU into disrepute”.