“Don’t mention the extra judges!” When CJEU reform turns into farce

Steve Peers

The classic British comedy Fawlty Towers derived its humour from the doomed attempts of the ill-tempered hotel owner Basil Fawlty to control the uncontrollable situations that developed around him, often taking out his frustrations on his waiter, Manuel. No one would seriously suggest emulating Basil Fawlty’s management style. But nevertheless, the debate over the reform of the Court of Justice is increasingly resembling a Fawlty Towers episode.

Let’s review. After several previous failed attempts at reforming the EU judicial system, the Court of Justice suggested that the lower EU court (the General Court) should have double the number of judges – two per Member State, instead of one. The EU’s civil service tribunal (with seven judges) would close down, merged into the General Court. The senior Court of Justice would retain one judge per Member State. For the background, further details and arguments in favour, see my earlier blog post.

This proposal was opposed by many staff in the General Court. So four General Court judges appeared before the European Parliament to object to this plan (let’s call them, collectively, ‘Manuel’). For discussion of Manuel’s counter-arguments, see the recent blog post by Professors Pech and Alemanno; and for Manuel's written argument itself, see here.

Very recently the proposal was formally adopted by the Council. But it still has to be agreed with the European Parliament (EP), and some Members of the European Parliament (MEPs) appear to have great misgivings, fuelled by the dissenting judges. Cue an angry response by the CJEU’s President Skouris (let’s call him ‘Basil’). As documented by Duncan Robinson in the Financial Times, he complained that the EP was willing to listen to the rebels, and threatened retaliation against the dissenting judge. Manuel might soon get whacked by that frying pan.  

With the greatest respect, there are profound problems with Skouris’ approach. First and foremost, his response has become the story (it’s also been covered elsewhere). This diverts attention from the pros and cons of the argument for CJEU reform. I’m not criticising the journalists – it’s their job to report on his response, and he should have anticipated the effect it would have. Also, now that his response has become the story, it gives the impression that the proposal is a greedy grab for money by the judges. In fact. as I pointed out in my earlier post, the CJEU had previously suggested fewer extra judges. It only asked for doubling the number in despair, when it became clear that Member States could not agree on a more modest number, due to national egotism.

Secondly, Skouris’ angry letters give the impression that the CJEU is an authoritarian institution. Certainly, any ordinary employer would not take kindly to public criticism of its policy by its staff. For instance, if (entirely hypothetically) I had objections to the management of the University of Essex, I would not air them in a public forum. But the CJEU is a public body, in a political system whose legitimacy is clearly fragile. These attempts to silence dissent surely damage the Court’s authority more than the dissent itself would. Anyway, they gave that dissent far more publicity than it would otherwise have had (the well-known 'Streisand effect').

Thirdly, by attacking the dissenters instead of countering their arguments, it gives the impression that there is no good argument in favour of the Court’s proposals, since the brave truth-tellers are being silenced. And in tactical terms, it’s particularly hard to see how attacking the very MEPs whom Skouris needs to convince to support his proposals will win them round.

This problem isn’t limited to Skouris alone. After publishing the arguments of Pech and Alemanno, this blog received an anonymous comment which mixed snide personal comments about one of those authors with a reasonable counter-argument against their critique (I don’t know whether or not the commenter is linked to the Court). I didn’t publish that comment at the time because of the nasty personal comments. After some thought, I have decided to extract the more reasonable part of those comments and present them here, so that we can move back to debating the merits.

“[redacted] 1) The four arguments in favour of the reform (as summarised by Steve Peers) are dismissed as not empirically substantiated. But if something is self-evident why do we need empirical data (and which ones by the way?). Do we need empirical data to show us that a two-tier judicial system is SIMPLER than a three-tier system with obscure procedures such as the exceptional review procedure? Do we need empirical data to show us that it is wiser to have preliminary references and appeals in the jurisdiction of the same court? Do we need more empirical data to prove that the nomination of judges to a specialised tribunal is more complex than the one for the GC [General Court]?

 
2) The claim of a top down approach is not substantiated. Certainly the press and some GC insiders may have claimed that. [personal comment redacted]

a) the internal debate over the GC reform started in 2009 

b) at the initiative of the GC

c) was debated by a bilateral committee (CJ and GC) for almost two years

d) The President and Vice-President of the CJ went repeatedly to the GC's plenary to discuss this matter

e) That the caseload of the GC increased by 48 % between the GC's first proposal (2011) and the amended 2014 proposal.

[redacted] 

3) It is wrong to claim that IP cases represent 30% of the GC's workload. It is 30 % of the GC's CASELOAD. There is a huge difference between caseload and workload. One competition or State aid case is equivalent to 10 or 20 trademark cases...

4) The arguments about quality clearly imply that judges and référendaires at the GC are not up to the task. This raised some questions though which are left unanswered:

a) How is that substantiated? How have you assessed the lack of competence that you allege exists? 
b) Why is the quality of judges and référendaires a problem only at the GC? Nomination and référendaire hiring practices are identical at the CJ and the GC...

c) How on earth can we be talking about an EPSO competition for référendaires? Aren't you aware of EPSO's inefficiencies? [redacted]

5) Some of the article's recommendations have a lot of merit. However, they require a lot of time (or even Treaty change) to be implemented. The GC's backlog is here now!!! In order to bring the pending cases to a reasonable level of 800 the GC must produce 100 more judgments than the incoming cases per year FOR 6-7 years in a row. It has never managed to do so in the last 15 years notwithstanding the fact that its judges and staff (according to my information) are working at their limits. So...we have to ask ourselves...is there another viable solution apart from the one proposed by the CJUE?” 

The way forward

In many Fawlty Towers episodes, there’s a point where Basil’s long-suffering wife mollifies the people offended by his conduct. Let me assume that role here (just call me ‘Sybil’). Otherwise I fear that the process of reform might soon come to an abrupt halt – and we will all have to witness the judicial equivalent of Basil Fawlty whacking a broken-down car with a tree.

'Manuel’s' key claim, ie the counter-argument against 'Basil’s' argument for doubling the number of judges, is that 80% of the General Court’s backlog has now been eliminated. This is not substantiated by any statistics, and it’s not clear what they define as a 'backlog'. I wonder if the EP pressed the dissenting judges on this point, or simply lauded them as the Edward Snowdens of Luxembourg. Certainly it’s clear that a very large number of cases are still being lodged at the General Court. And even if that Court is catching up with its case load, there’s an argument that more judges might be able to reduce decision-making times further still.

The Pech and Alemanno argument for more specialised courts might be fine in theory, but it’s clearly not feasible in the real world. This approach has been tried and failed: Member States have paralysed the Civil Service Tribunal by not appointing fresh judges to it, due to a spat about rotation of judges between Member States. That’s petty and surely illegal – but it’s an unavoidable fact. There’s no point hoping that national egos will go away; they won’t.

But there is much to the Pech and Alemanno argument (made also by lawyers practicing before the Court, such as Tom de la Mare) that more effective management of cases could address a lot of the Court’s problems.

So I suggest a compromise. The EP should agree to the Court’s proposal – with a sunset clause. Let’s appoint one set of extra judges for each Member State. In principle, they will serve one term only. (They could stay on to replace the other judge from that Member State, if he or she leaves). A couple of years before the first term of the first batch of extra judges expires, there could be a full impact assessment of whether there still need to be extra judges. This would also consider whether the Court has taken other effective steps to manage its workload (which should be a condition of getting the extra judges), and measure whether they have proven to be as effective as some claim that they could be.

Conclusion

“Don’t mention the extra judges!” (I did once, but I think I got away with it). More seriously, I get the distinct impression that the argument about the Court is being affected by a lot of personality politics. I’m not a current or former insider in the Court or the Parliament (or anywhere else), so I have no ego in this race. But I urge  everyone involved to  leave their egos at the door, and I believe that a reasonable compromise between the different opinions – the validity of which has been obscured by the overreaction to some of them – is possible along the lines I suggest.

Barnard & Peers: chapter 10