Steve Peers
The ongoing debate surrounding the reform of the Court of Justice (CJEU) is becoming increasingly chaotic, reminiscent of an episode of the British comedy “Fawlty Towers.” The show’s humor stems from Basil Fawlty’s futile attempts to manage unpredictable situations in his hotel, often venting his frustrations on his staff. While no one would endorse his management style, the current CJEU reform debate mirrors this comedic chaos.
To recap, following several unsuccessful attempts to reform the EU judicial structure, the CJEU proposed that the General Court, the lower EU court, should double its number of judges to two per Member State. This plan involved absorbing the EU’s civil service tribunal, which had seven judges, into the General Court. The higher CJEU would maintain its structure of one judge per Member State. For a more detailed background and arguments supporting this proposition, refer to my previous blog post.
This proposal faced opposition from numerous General Court staff. Consequently, four General Court judges, who we’ll collectively refer to as ‘Manuel,’ presented their objections to the European Parliament. For a deeper understanding of their counter-arguments, refer to the recent blog post by Professors Pech and Alemanno. Manuel’s written arguments can be accessed through the provided link.
The Council recently formally approved the proposal. However, it still requires the European Parliament’s (EP) consent. Some Members of the European Parliament (MEPs), seemingly influenced by the dissenting judges, have expressed serious reservations. This triggered a heated response from CJEU President Skouris, our ‘Basil’ in this scenario. Duncan Robinson reported in the Financial Times that President Skouris criticized the EP for entertaining the dissenting judges’ perspective and even hinted at potential retaliation against the dissenting judge. It seems ‘Manuel’ might be on the receiving end of ‘Basil’s’ wrath.
With all due respect, President Skouris’ approach presents significant issues. Firstly, his reaction has taken center stage, diverting attention from the actual merits and drawbacks of the CJEU reform. While journalists are merely fulfilling their duty by reporting on his response - a predictable outcome - this shift in focus creates the impression that the reform proposal is nothing more than a ploy by the judges to secure more resources. As previously highlighted in my earlier post, the CJEU initially proposed a smaller increase in judges. The request for double the number arose out of necessity when Member States, driven by national self-interest, couldn’t agree on a more moderate figure.
Secondly, President Skouris’ forceful letters project an image of the CJEU as an autocratic institution. While public criticism of an organization’s policies by its staff is generally frowned upon, the CJEU is a public entity operating within a political system facing legitimacy concerns. These attempts to stifle dissent are likely to inflict more damage on the Court’s credibility than the dissent itself. Furthermore, such actions have inadvertently given the dissenting voices a larger platform than they would have otherwise had, illustrating the Streisand effect in action.
Thirdly, by choosing to target the dissenting individuals instead of addressing their concerns, President Skouris unintentionally reinforces the perception that the Court’s proposals lack merit. It suggests that those who dare to speak truth to power are being silenced. From a tactical standpoint, it’s particularly perplexing why President Skouris would choose to alienate the very MEPs whose support he needs to secure his proposals.
This issue extends beyond President Skouris. Following the publication of Pech and Alemanno’s arguments on this blog, an anonymous comment, possibly connected to the Court, combined personal attacks with a partially valid counter-argument against their critique. While I initially refrained from publishing the comment due to its offensive nature, I have decided to present the more reasonable portion here to redirect the focus back to the actual merits of the debate.
“[redacted] 1) The four arguments supporting the reform, as summarized by Steve Peers, are deemed unsubstantiated due to a lack of empirical evidence. However, if something is inherently obvious, why is empirical data necessary (and what kind of data would suffice)? Is empirical data needed to demonstrate that a two-tier judicial system is inherently simpler than a three-tier system burdened with unclear procedures like the exceptional review procedure? Do we need empirical data to prove that handling preliminary references and appeals within the jurisdiction of a single court is more sensible? Do we require further empirical data to validate that appointing judges to a specialized tribunal is inherently more complex than the process for the General Court?
- The allegation of a top-down approach lacks substantiation. It might have been asserted by the press and certain individuals within the General Court. [personal comment redacted]
a) The internal discussions regarding the General Court reform commenced in 2009.
b) It was initiated by the General Court.
c) The matter was deliberated upon by a joint committee comprising representatives from the CJEU and the General Court for nearly two years.
d) The President and Vice-President of the CJEU made multiple appearances at the General Court’s plenary sessions to discuss this matter.
e) Between the initial proposal by the General Court in 2011 and the revised 2014 proposal, the caseload of the General Court increased by 48%.
[redacted]
The assertion that intellectual property (IP) cases account for 30% of the General Court’s workload is inaccurate. It represents 30% of the General Court’s caseload. There is a significant distinction between caseload and workload. A single competition or State aid case is equivalent to 10 or 20 trademark cases…
Arguments concerning the quality of work seem to imply that the judges and référendaires at the General Court are not competent enough. However, this raises a few unanswered questions:
a) What is the basis for this claim? How was the purported lack of competence assessed?
b) Why is the competence of judges and référendaires only a problem at the General Court? The procedures for appointing judges and hiring référendaires are the same for both the CJEU and the General Court.
c) How can there even be a discussion about an EPSO competition for référendaires? Are you unaware of EPSO’s inefficiencies? [redacted]
- Some of the recommendations in the article have merit. However, their implementation requires considerable time or even Treaty amendments. The backlog at the General Court demands immediate attention. To bring the number of pending cases down to a manageable 800, the General Court needs to issue 100 more judgments than incoming cases annually for 6-7 consecutive years. This has never been achieved in the past 15 years despite the judges and staff, according to my information, working at full capacity. So, the question arises: Is there a viable alternative to the solution proposed by the CJEU?
The Path Forward
Many “Fawlty Towers” episodes feature a moment where Basil’s patient wife, Sybil, steps in to placate those offended by his behavior. I’d like to take on that role here. Otherwise, I fear the reform process could collapse, leading to a judicial equivalent of Basil Fawlty attacking a broken-down car with a tree.
‘Manuel’s’ central counter-argument against ‘Basil’s’ push for doubling the number of judges is that 80% of the General Court’s backlog has been cleared. However, this claim lacks statistical backing, and the definition of ‘backlog’ remains unclear. It’s unclear whether the EP questioned the dissenting judges on this or simply hailed them as heroes. What is clear is that a substantial number of cases are still being filed with the General Court. Even if the Court is catching up, there’s a case to be made that additional judges could further expedite the decision-making process.
While Pech and Alemanno’s proposal for specialized courts might hold theoretical merit, it lacks real-world feasibility. This approach has been attempted and failed: Member States, embroiled in a dispute over the rotation of judges, have brought the Civil Service Tribunal to a standstill by refusing to appoint new judges. This behavior, while petty and arguably illegal, highlights an unavoidable reality. We can’t simply wish away national self-interest; it’s here to stay.
However, Pech and Alemanno, along with lawyers who practice before the Court like Tom de la Mare, make a valid point that improved case management could resolve many of the Court’s challenges.
Therefore, I propose a compromise. The EP should approve the Court’s proposal but with a sunset clause. This involves appointing one set of additional judges per Member State for a single term, although they could stay on to replace a departing judge from their Member State. A comprehensive impact assessment would be conducted a couple of years before the first term of the first cohort of additional judges concludes to evaluate the continuing need for extra judges. This assessment would also consider whether the Court has implemented other effective measures to manage its workload, a prerequisite for obtaining additional judges, and evaluate the efficacy of these measures.
Conclusion
“Don’t mention the extra judges!” (I may have mentioned it once, but I believe I got away with it). On a serious note, it seems that personality politics are casting a long shadow over the Court-related discussions. As an outsider without any personal stake in this, I urge all parties involved to set aside their egos. I firmly believe that a reasonable compromise, like the one I’ve suggested, is achievable. Such a compromise would address the various viewpoints that have been overshadowed by the overreaction to some of them.
Barnard & Peers: chapter 10