Steve Peers

The Court of Justice recently suggested that the EU should double the number of judges on the General Court and eliminate the EU Civil Service Tribunal. This piece examines the reasons behind this significant proposition for restructuring the EU judicial system and evaluates its merits.

Background

The EU judicial system has consistently expanded to accommodate a growing caseload. The Single European Act of 1987 allowed for the establishment of the Court of First Instance (renamed the General Court by the Lisbon Treaty) to support the Court of Justice. This new court, with one judge from each Member State, was established in 1989.

To manage its workload, the Court of Justice transferred much of its jurisdiction to the Court of First Instance. The latter eventually handled almost all cases against EU institutions and bodies, except for those deemed “constitutional,” such as disputes between EU institutions or challenges by Member States to EU legislation. The Court of Justice maintained its authority over appeals from the Court of First Instance, preliminary rulings from national courts, and infringement proceedings against Member States.

The increased workload eventually burdened the Court of First Instance. The Treaty of Nice in 2003 allowed for the creation of lower-level “judicial panels” (renamed “specialized courts” by the Lisbon Treaty). However, only one such court, the EU Civil Service Tribunal with seven judges, was established in 2005.

Despite these measures, litigation continued to increase. By 2011, instead of proposing a new court, the Court of Justice suggested appointing 12 more judges to the General Court. It also proposed changes to the Court’s statute and the creation of temporary judges for the Civil Service Tribunal.

Member States and the European Parliament approved the temporary judges for the Tribunal and other changes but not the increase in General Court judges. Though they agreed in principle, they disagreed on allocating and rotating judges among Member States.

This stalemate has exacerbated the General Court’s backlog, and the Civil Service Tribunal now faces similar issues due to unfilled vacancies caused by disagreements over rotation.

To address this, the Court of Justice has proposed doubling the General Court judges to two per Member State while dissolving the Civil Service Tribunal. This would be implemented in three phases: adding 12 judges immediately, transferring the seven Tribunal judges in 2016, and appointing the remaining nine judges by 2019. The European Parliament and the Council’s decision on this proposal remains to be seen.

Comments

Addressing the General Court’s workload is crucial. Article 47 of the Charter of Fundamental Rights obligates the EU to process cases within a reasonable timeframe. While appointing new judges incurs costs, inaction also has financial implications. The Court’s proposal highlights pending cases seeking damages for the EU judicial system’s failure to uphold Article 47.

Two options exist without amending the Treaty: establish more specialized courts or appoint more judges to the General Court. The planned Unified Patent Court is not a specialized court but a shared national court.

There is disagreement among EU judges on the preferred option. While the General Court favored specialized courts in 2011, the Court of Justice’s preference for more General Court judges prevailed. The 2014 proposal acknowledges this difference: the Court of Justice and Civil Service Tribunal support the proposal, while the General Court does not.

This disagreement stems partly from the General Court judges’ reluctance to handle civil service cases, which they thought they had permanently transferred to the Civil Service Tribunal. However, with the proposed changes, these cases would return to their docket.

The Civil Service Tribunal judges, currently handling only civil service disputes, could rule on a wider range of cases. However, doubling the General Court judges would eventually lead to them outnumbering the Court of Justice judges. Despite this, the Court of Justice, not the General Court, has the authority to propose rule changes (as does the European Commission).

Objectively, the Court of Justice’s proposal to increase General Court judges has merit. Creating specialized courts is less adaptable, as litigation can surge in areas outside their jurisdiction, like recent foreign policy sanctions. Specialized courts also might not solve the workload issue, as they often handle simpler cases like trademark disputes, with about a third appealed to the General Court anyway. Keeping such disputes closer to the Court of Justice through appeals is sensible, as it handles similar cases from national courts on EU trademark law and the interplay between intellectual property law and EU free movement and competition law.

Appointing more General Court judges can also be done faster than establishing a new specialized court. While ensuring one more judge per Member State across the General Court and specialized courts is theoretically possible to address national representation, it would be challenging to implement, as the Court of Justice acknowledges. The Council’s recent refusal to appoint Civil Service Tribunal judges demonstrates that political maneuvering often overrides upholding the law.

Finally, the new proposal would simplify the EU judicial system by eliminating a court tier and the complex rules governing Court of Justice review of General Court judgments on appeals from specialized courts. This simplification would make the EU judicial system more accessible to the public and EU law students.

Barnard & Peers: chapter 10