Remedying the crumbling EC judicial system

Common Market Law Review

Volumn 37, Issue 5, 2000, Pages 1071-1112

  Rasmussen, Hjalte ^a  

^a UNIVERSITY OF COPENHAGEN   (Denmark)

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EID: 85102782030     PISSN: 01650750     EISSN: 18758320     Source Type: Journal    
DOI: 10.1023/A:1005698903666     Document Type: Article

References (79)

1. 1. An exception to the rule is Jacque´ and Weiler, “On Road to European Union – A New Judicial Architecture”, 27 CML Rev., 185–207.
2. 2. E.g. as the ECJ’s president, Gil Carlos Rodriguez Iglesias in Le Monde, 28 April 2000 has stated.
3. 3. The official reports drafted on the occasion of the IGC-2000 (see infra 3) do not say much about the necessity of making available public funding for the purposes of carrying out judicial reform.
4. 4. Because increases in the incoming case loads are, even in a short-term perspective of, say, 5 years, predicted to go up sharply, so that measures to curb time consumption should not be postponed but taken as soon as possible.
5. 5. Source cited supra note 2. E.g. when the two Courts a couple of years ago asked for money for 60 additional translators, a step that would have substantially reduced, perhaps even halved, time spent on translation, the budget authorities’ answer was a grant of money for five more translators.
6. 6. Speaking at a conference held in Helsinki on 6 to 8 Nov. 1998; lecture under publication.
7. 7. Concern and tensions have been mounting for a number of years. They were given eloquent expression by Lord Keith of Kinkel in December 1993. He then gave a birthday speech in celebration of the 40th anniversary of the Court. The latter had invited him to speak on behalf of his colleagues sitting on the benches of the judiciaries of the Member States. It is telling evidence of the existence of an intolerable time-problem that, at this solemn occasion, Lord Keith’s national Brethren had mandated him to formulate their growing weariness over this problem in his address to the Court.
8. 8. As we shall see further on, the preliminary references procedure underwent change, and even substantial change, but behind judicial curtains. I have presented these developments and their implications at considerable length and in detail, in Rasmussen, European Court of Justice (GadJura, Copenhagen, 1998).
9. 9. At the behest of others, Art. 177 was in the meantime given a new number: Art. 177 became Art. 234. This was all that happened.
10. 10. The CFI firs became an institution in its own right when its existence was entrenched in the treaties by the Maastricht Treaty’s version of Art. 168a; see infra where this Article is quoted.
11. 11. In this, the ECJ has always won the unconditional support of the European Parliament, see inter alia O.J. 1993, C 268. An early criticism of the unwillingness to let the CFI decide preliminary references is found in Everling, “Reflections on the reasoning in the Judgments of the Court of Justice of the European Community”, in Festskrift til Ole Due (Gads Forlag, Copenhagen, 1994), p. 30.
12. 12. Council decision of 8 June, 1993, 93/350, Euratom, ECSC and EEC, O.J. 1993, L 144/21. The devolution process was completed by Council decision of 7 March, 1994, O.J. 1994, L 66/66.
13. 13. Mehdi says that the ECJ is “malade de son succe‘s”, in “Introduction ge´ne´rale, La justice communautaire entre espoirs fonde´s et promesses de´c¸ues”, in Mehdi (Ed.) L’avenir de la justice communautaire Monde europe´en et international (CEDIC, La documentation franc¸aise, Universite´ d’Aix/Marseille, 1999) p. 5.
14. 14. The quote is from Rodriguez Iglesias, op. cit. supra note 2.
15. 15. See my survey of the two Courts’ views, as expressed in a paper from May 1999, below.
16. 16. Case 283/81 [1982] ECR 3415.
17. 17. The quote is from the two Courts’ report of May 1999.
18. 18. Before the Amsterdam-IGC two more reports were presented: “The Report by the Court of Justice on certain Aspects of the Application of the Treaty on European Union” of May 1995; and the “Contribution by the Court of First Instance to the 1996 Intergovernmental Conference”, also dating from May 1995.
19. 19. See www.curia.eu.int. Mehdi offers a thorough presentation of the main points of this report, and discusses its ideas and conclusions in “Contentieux communautaire”, (Oct/Dec 1999) Rev. ge´n. des proce´dures, 541–572.
20. 20. The Working Party had 7 members, of which 5 were either former presidents of the courts (the Group’s chairman, Mr Due (ECJ) and Mr da Cruz Vilaca (CFI), or members of or advocates general of the ECJ. The sixth member of the Party was a former, high ranking EC Commission civil servant, now a practising lawyer. The Party’s last member came from high up in a national government.
21. 21. After the Working Party handed over its report to the Commission, the latter on 2 March 2000, submitted its own, specific proposals about court reform to the IGC-2000. The Commission’s proposals, although expressed in a more cautious tone, mostly mirror the Working Party’s proposals while a few differences of opinion are notorious. The IGC asked a special committee to submit this and other ideas for judicial reform to further consideration. This committee presented its intermediate conclusions to the Feira meeting of the European Council, which was held during the first half of June 2000. Since the publication of these conclusions coincided with the date at which I had promised the Editors of this Review to deliver the present article, lack of time unfortunately prevents me from taking due account here of the committee’s intermediate conclusions.
22. 22. In its opinion of 15 March 2000, the Legal Committee of the European Parliament endorsed a number of the Working Party’s recommendations, especially those which are likely to enhance the EP’s influence; see Due, “Regeringskonferencen of det judicielle system i EU”, (forthcoming in EU-ret og Menneskeret, Copenhagen).
23. 23. Unlike the CFI; see above.
24. 24. Weiler and Jacque´, op. cit. supra note 1, 3–4; italics added. I analyse in detail below (section 6) whether such rearrangement of the working procedures of the Court would bring about a reduction in the time delay; I conclude that they certainly can.
25. 25. In 1998, 729 new actions were brought in the Community’s two courts taken together. 18 years earlier, the total number of incoming cases was 279. The increase over this period of time is thus 159 per cent. From 1990–1998, the Court of Justice decided 3085 cases, i.e. 344 cases decided on average per year while 3778 were registered in the Court of Justice’s docket. The result is a cumulate deficit of 693 or quite exactly two years work. There are more detailed statistics in the Working Party’s report.
26. 26. See the ECJ’s observation to this effect in its report of May 1995, cited supra note 18, para 14.
27. 27. For an early argument to this effect, see Koopmans, “The role of law in the next stage of European integration”, 35 ICLQ, 925 et seq; I have argued along the same lines in “Between self-restraint and activism: A judicial policy for the European court”, 13 EL Rev. (1988), 28–38; see, more recently Tridimas, “The Court of Justice and Judicial Activism”, 21 EL Rev. (1996), 199 et seq; but see also Lenaerts, “Some thoughts about the interaction between judges and politicians in the European Community”, (1992) YEL, 1 et seq; and Dehousse, La Cour de Justice des Communaute´es europe´ennes (Montche´tien, Paris, 1994); and Lord Howe of Aberavon, “Euro-Justice: Yes or No?” 21 EL Rev. (1996), 187 et seq.
28. 28. Case 283/81 [1982] ECR 3415.
29. 29. Section 9 infra.
30. 30. The Working Party addresses these problems on p. 31 of its report and proposes a series of measures aiming at preventing the great flood of these cases from reaching the Community’s two courts.
31. 31. 31. Joined Cases C-297/88 and C-197/89, [1990] ECR I-3783.
32. 32. A.G. Jacobs, in his conclusions in Case C-128/95, Leur-Bloem [1997] ECR I-4161. In its ruling in this case, the Court affirmed its Dzodzi case law, nonetheless.
33. 33. This view is shared by Mehdi in source cited supra note 13, at pp. 18–20.
34. 34. 15 Judges and 9 advocates general.
35. 35. See the ECJ’s recognition of this threat in its report to the IGC-1996, cited supra note 18.
36. 36. See the Commission’s report, cited supra note 21.
37. 37. Such argumentation recalls the opinions of the ECJ’s President in Rodriguez Iglesias, “E´ ditorial”, (1999) CDE, 275–281, at 277.
38. 38. Ibid. at 277.
39. 39. Ibid.
40. 40. A shortening of judicial vacations has, for one thing, not been officially suggested as a measure which could – without much ado – save one month of precious preliminary case processing time.
41. 41. This is not a new idea. The Courts submitted it to the Amsterdam-IGC which did not consider it.
42. 42. The numbering used here and in what follows is that of the Report.
43. 43. Passing the buck to the ECJ does not seem to me an ideal solution, considering the ECJ’s proven lack of ability to find a consensus inside the Court when it comes to taking action with the aim of refurbishing the preliminary preferences procedure.
44. 44. The ECJ might wish, the Party politely suggests, to combine the adoption of the new provisions of the Rules of Procedure with making available a standard model for how preliminary questions ought to be asked. Better late than never.
45. 45. In an article (forthcoming) in a Danish periodical, see supra note 22.
46. 46. I argued in 1986 in favour of the introduction of EC docket control in On Law and Policy in the European Court of Justice. A Comparative Study in judicial Policymaking (Nijhoff, Dordrecht, 1986), pp. 465–497. There I also documented existing practices and reform proposals in other courts.
47. 47. The Commission should act, in this capacity, as the guardian of the Treaty. A similar role has been attributed to it (plus the Council or a Member State) by Art. 68(3) in respect of cases on visa, asylum etc. There, as here, the “appeal in the interest of the law” can be seen as a measure compensating for the limitations imposed on national courts’ right to submit preliminary cases to the ECJ.
48. 48. The Statutes of the Court, Art. 20.
49. 49. Nevertheless, the Community’s budget authority shows – under influence of some Member States – no willingness to grant the extra funds which the courts have asked for. In these circumstances the courts are barred from taking on anything approaching the number of additional translators it needs. See Mr Vesterdorf’s report, cited supra note 2. Moreover, budgetary rigidity is imposed on the Court in the sense that, as a rule, it is barred from using monies saved on one account for expeditures under a different budgetary heading.
50. 50. The latter should not, if this change were implemented, be made subject to substantial cuts in number.
51. 51. Perhaps, the true picture of the time-estimate, as seen from the national court, ought to take into account the weeks or months which pass from the instant when discussions are first engaged before the national court dealing with the question as to whether to submit a preliminary question or not. In many cases this time can be considered as “European time”. Arguably, even more time must be charged in the European time-account. An extended calculation suggests including the time running from the moment the Court’s registrar puts the answer(s) to the preliminary question(s) in the mail-box until the national judge receives his mail. Plus, possibly, the time running until the pleadings reassume before the national judge. The latter period is often long.
52. 52. Thus, former EC judge Everling, “L’avenir de l’organisation juridictionnelle de l’Union europe´enne”, in Vandersanden (Ed.), La re´forme du syste‘me juridictionnel communautaire (ULB Press, Brussels, 1994), p. 19 et seq.
53. 53. Rodriguez Iglesias, op. cit. supra note 37, at 277.
54. 54. Although the participation of the advocates general in the judicial process is notoriously time-consuming, the Courts’ paper fail to address the issue of abolishing or maintaining this institution intact. If, on balance, the members of the two courts think that the contribution of the advocates general to the quality of the judicial output is important and indispensable, they could at least have said so. And argued that, for this reason, the institution ought not to be shaved away for the sake of speeding up the preliminary references prodecure.
55. 55. Evidence of a certain elevated perception of being the best and irreplacable emerges perhaps from the ECJ’s Opinions 1/91, Draft EC/EEA Treaty [1991] ECR I-6079, and 2/94, Union membership of the ECHR [1996] ECR I-1759; in the same vein the Court’s unwillingness to exploit Art. 225’s full potential for competence-devolution can be cited; and its stubborn insistance that it, and it alone, offers the required quality-guarantees for handling big and small preliminary references; and, perhaps even, the Court’s Dzodzi case law (discussed in section 4).
56. 56. This is not what, on its surface, the preliminary references procedure is about. But in reality it all too often is; cf. below.
57. 57. This is not the place to discuss whether judicial reality ever corresponded to the myth. However, if myth and reality ever matched, they ceased to do so a long time ago.
58. 58. Mancini was for many years Advocate General and Judge at the Court of Justice; see Mancini (et al.), “From CILFIT to ERT: The Constitutional Challenge facing the European Court”, (1991) YEL, 1–13.
59. 59. Case 104/79, Foglia I, [1980] ECR 745; Case 244/80, Foglia II, [1981] ECR 3045; Joined Cases C-320–322/90, Telemarsica-bruzzo, [1993] ECR I-393.
60. 60. Jacobs urged that socio-economic facts be more generally paid attention to in, “Key-note Speach”, in Europe and America in 1992 and Beyond, (University of Chicago, Legal Forum, 1992).
61. 61. Case 286/81 [1982] ECR 4676.
62. 62. Joined Cases 267–268/91 [1993] ECR I-6097.
63. 63. Case 43/75 [1976] ECR 455.
64. 64. Case 24/86 [1988] ECR 398.
65. 65. Case 41/84 [1986] ECR 17.
66. 66. Case C-262/88 [1990] ECR I-1889.
67. 67. Case 152/84 [1986] ECR 737.
68. 68. Case C-106/89 [1990] ECR I-4156.
69. 69. Case C-91/92 [1994] ECR I-3325
70. 70. Evidence corroborating this view is presented in Alter, “The European Court’s Polical Power, The Emergence of an Authoritative International Court in the European Union”, (July 1996) Western Union Politics.
71. 71. Mehdi, op. cit. supra note 13, p. 21.
72. 72. The issue is analysed in Rasmussen, “The EC-Court’s Acte Clair Strategy in CILFIT”, 9 EL Rev. (1984), 242–259.
73. 73. Case C-338/95, Wiener, [1997] ECR I-6495.
74. 74. Ibid. para 15.
75. 75. The present article’s criticism of CILFIT seems to match concerns inside the Court about the wisdom today of this anomalous judgment. Many European law scholars still write articles with titles similar to that of O’Keefffe, “Is the Spirit of Article 177 under Attack? Preliminary References and Admissibility”, Onore di Guiseppe Federico Mancini, Vol II (Guiffre´ editore, 1998), pp. 695–729.
76. 76. See reference supra note 6.
77. 77. This idea recalls EC Judge Hirsch’s views as expressed in “Dezentralisierung des Gerichtssystems der Europa¨ischen Union?” (2000/2) ZRP, 57–60.
78. 78. As a measuring rod, it is a reliable guess that, today, the addition of a new post as judge of the CFI will probably cost an average of 6–700,000 euros; also assuming that the existing building facilities can host him/her.
79. 79. Rodriguez Iglesias, op. cit. supra note 37, at 277.