“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

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The new Commission: first thoughts on Justice and Home Affairs issues

Steve Peers

Today’s list of jobs for the next European Commission – and the accompanying major restructuring of the Commission – has major implications for every area of EU policy. But here are my initial thoughts about the impact upon Justice and Home Affairs (JHA) issues.

Of course, the next European Commission still has to be confirmed by the European Parliament (EP). The EP insisted on changes to the planned list of Commissioners in 2004 and 2009, so it might well do so again. But nevertheless, it’s an opportune moment to examine the new Commissioners who will have responsibility for JHA issues – as well as the revised structure of the Commission as it affects such issues.

Migration and Home Affairs

As before, the area of immigration and home affairs (ie policing and internal security) is assigned to a separate Commissioner. Therefore the suggestion in some quarters that there’s a new ‘Commissioner for immigration’ is just not true. There is also still a separate Directorate-General (DG) dealing with these issues. DG Home picks up responsibility for anti-drug policy and security research, and does not lose any policy responsibilities.

The new Commissioner is Dimitris Avramopolous. He has no background in this field, and his current job is Greek defence minister. But that’s misleading: he started out his career as a diplomat, became a popular mayor of Athens and was also an MP (for the conservative New Democracy party), holding ministerial posts for tourism, health and foreign affairs before becoming defence minister. So he has a broad diplomatic and political background.

The most striking thing about his appointment is his nationality. Greece is, of course, at the centre of the debate about the effectiveness of the EU’s ‘Dublin’ policy, which assigns responsibility for asylum applications to (in effect, in most cases) the first country which they enter. That is frequently Greece. So partly as a result of the Dublin rules, the Greek asylum system has broken down in recent years, and both the CJEU and the European Court of Human Rights have ruled that sending asylum-seekers to Greece would violate their fundamental rights.

Since Avramopolous never previously held a job relating to immigration policy, he can’t be blamed directly for these problems. Also, it must be recalled that because Commissioners are independent of the government which appointed them (although Commissioners have been known to forget this), it will not be his job to defend the Greek government, but rather to articulate and enforce EU policy in this area. Hopefully it will be an advantage, not a detriment, to have an immigration Commissioner from a Mediterranean state, given the crucial role which sea crossings play in EU immigration policy.

In light of the external impact of EU immigration policy, it also useful that the new Commissioner has diplomatic experience. In particular, it’s potentially significant that he is credited as one of the authors of the recent Greek-Turkish rapprochement. Migrants who come from Turkey and refugees who travel via Turkey are a significant part of those who come to the EU, and the EU/Turkey readmission agreement will come into force on 1 October. One of his chief tasks will be to ensure EU visa liberalisation for Turkey, as a quid pro quo for the readmission agreement and other changes in Turkish policy. On paper at least, he is the right man for this job.

Justice

Until the last moment, the next Justice Commissioner was going to be the outgoing Home Affairs Commissioner, Cecilia Malmstrom. Instead, Malmstrom has been thrown into the maelstrom (I couldn’t resist) of EU trade policy, being responsible in particular for negotiating the EU/USA free trade agreement (TTIP).

The new Justice Commissioner will instead be Vera Jourova, the Czech minister for regional development, who has a background in that field. Unlike Avramopolous or Malmstrom, there’s nothing in her history which suggests that Jourova is particularly well suited to this job. But there are plenty of historical examples of politicians who did a good job despite not having a background in a relevant field. Let's hope this proves to be another such case.  

In terms of structure, DG Justice first of all loses two roles: anti-drug policy (moved to DG Home, as noted already) and equality policy – apart from gender equality – moved to DG Employment and Inclusion.

The first of these changes makes some sense, since anti-drug policy is not exactly a Justice issue. But that policy is even less well-placed in DG Home, since that wrongly identifies anti-drug policy is primarily a law enforcement issue, rather than a health and social problem.

But the changes to the equality responsibilities make no sense at all. If those responsibilities have to be moved, it would be better to move them all, rather than all except gender equality. True, there’s a good argument for a woman to be in charge of gender quality – but the next Commissioner for employment will be a woman (Marianne Thyssen) as well.  

In any event, those responsibilities shouldn’t have been moved, since there is a better case for keeping equality issues either as part of the Justice DG or assigning them to the new Vice-President dealing with human rights (more on him in a moment). The problem is that the effect of the move might be to focus attention too much on discrimination in employment, whereas discrimination occurs in other fields too. Indeed, a proposal for a Directive to tackle discrimination in other fields has been under discussion for six years. Admittedly, DG Employment is now DG Employment and Inclusion; but that DG is always likely to retain a focus on employment issues.

DG Justice has also picked up some new responsibilities: most consumer affairs issues, as well as social responsibility (corporate governance). The first of these changes takes account of the de facto reality, as the outgoing Commissioner, Viviane Reding, already took a big role as regards consumer legislation.  The second change risks corporate social responsibility becoming detached from the rest of substantive company law. Again, it’s a role that could have been better suited to the Vice-President responsible for human rights.

Fundamental Rights

The new Vice President (VP) responsible for better regulation, inter-institutional relations, the rule of law and the Charter of Fundamental Rights is Frans Timmermans. He is the outgoing Dutch minister for foreign affairs. Like Avramopolous, he began his career as a diplomat, and then became a politician. He held ministerial posts in the Dutch government, including the minister for European affairs. Also, he was a member of the ‘Convention on the Future of Europe’ which drafted the ill-fated Constitutional Treaty, later approved in a decaffeinated form as the Treaty of Lisbon.

While Timmermans is meant to steer the work of the Commission generally on these issues, and particular the Commissioners for Justice and Home Affairs, he has no specific responsibilities, and no dedicated bureaucracy. So his post is one of President Juncker’s great innovations in the design of the Commission: creating five Vice-Presidents in charge of thematic issues, who don’t have specific tasks. (Two other Vice-Presidents – the High Representative for EU foreign policy and the VP in charge of budgets – do have specific tasks).

Time will tell whether this innovation is a brainwave or a foolish gimmick. The risk is that it replicates the problems of the US Vice-Presidency, which also comes with no specific tasks (besides waiting for the President to die). As one US Vice-President didn’t quite say, the job was ‘not worth a bucket of warm spit’. And now the Commission will have five such jobs.

Having said that, at least some of the new VPs might be able to make the job work. Much will depend on their personalities and the clout of the senior officials in their cabinet. Timmermans might be in a better position to make it work than others, being designated as the ‘First Vice President’ and the President’s ‘right-hand man’, and having fewer (and less high-profile) other Commissioners to supervise.

Certainly, it seems like a good idea to designate a Commissioner specifically responsible for human rights and the rule of law, given their overarching importance and application to all fields of EU law. The original plan (dropped at a late stage) was to give these responsibilities to the home affairs Commissioner, but this was a bad idea. It would have been awkward to mix up the responsibility for carrying out a specific policy with the role of ensuring that human rights are respected in all areas of EU law. Moreover, human rights are too important an issue to entrust to any of the (de facto) junior Commissioners.

Some wanted a Commissioner purely concerned with human rights, but we did not get that. What about Timmermans’ other two responsibilities? First of all, in principle the ‘better regulation’ task logically falls instead within the scope of the activities of the new VP for Jobs, Growth and Competitiveness. This task may well have been handed to Timmermans because of the Dutch government’s particular interest in this issue. Giving this task to him could have the positive result of reminding  everyone that some parts of Justice and Home Affairs law, just like EU economic law, is also a morass of overlapping and confusing legislation that ought to be cleaned up.

Finally, his most important task as the Commissioner for inter-institutional relations will be to try again to open up the EU, by amending its legislation on access to documents. Again, it might be helpful that he is Dutch, given that country’s strong tradition of transparency. But equally it might have been thought that a Swedish Commissioner would deal with that issue well – yet Mrs. Wallstrom produced a dreadful proposal back in 2008.

Her (presumed) intention to enlarge access to documents was frustrated by Commission officials who had exactly the opposite objective, resulting in a text which would have reduced access, not increased it (by redefining a ‘document’ narrowly, for instance). We will probably only have a good proposal on this issue if it’s drafted by someone who doesn’t work for the Commission. Just for the record, Mr. Vice President, I could draft that proposal for free.

Barnard & Peers: chapter 3, chapter 9, chapter 25, chapter 26

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