Reform of the EU’s Court System: Why a more accountable – not a larger – Court is the way forward

Alberto Alemanno and Laurent Pech

Recent media coverage of the EU Court of Justice suggests that the period of ‘benign neglect by the powers that be and the mass media’ – once described by Professor Eric Stein – may well be truly over once and for all. The most unexpected aspect of this rather unique level of media attention is that it does not directly concern any particular judicial ruling by a Court, which, since it decided its first case in 1954, has issued more than 28,000 judgments and orders. Instead, the Court of Justice (CJ) and its President, Mr Vassilios Skouris, have been subject to unprecedented media scrutiny following intense internal infighting about a contentious proposal which officially aims to ‘reinforce the efficiency of justice at EU level’ by doubling the number of judges working at the General Court (GC).

Before offering a review of the CJ’s diagnosis and critically assessing the solutions defended by its President, it may be worth briefly recalling that the GC – initially known as the EU’s Court of First Instance – was set up in 1989 to help the CJ cope with its increasing workload. To help in turn the GC cope with a similar issue, the first EU specialised ‘judicial panel’ was set up in 2005: Known as the EU Civil Service Tribunal (CST), the jurisdiction is exclusively limited to disputes between the EU and its civil servants and consists of 7 judges. By contrast, both the CJ and the GC currently consist of 28 judges, with one judge from each Member State. The CJ is however also assisted by nine Advocates-General.

The Court of Justice’s diagnosis

The casus belli, which has prompted the current debate about the EU’s judicial architecture, is the increase in the number of new cases brought before the GC (from 398 in 2000 to 912 in 2014); the stock of cases currently awaiting to be decided (1,423 in 2014 and expected to rise to 1,600 in 2015); and finally, the increasing number of actions for damages brought against the EU due to the excessive length of proceedings before the GC on the basis of Article 47 of the EU Charter, which guarantees a right to have cases heard within a reasonable time.

While increasing workload is not in itself a new phenomenon – and has indeed been a recurrent problem for both the CJ and the GC – the latter’s growing workload has been seen as particularly worrying. Indeed, in addition to a rapid increase in the number of cases before it, the GC’s productivity has decreased despite an increase in the number of both judges (due to the Union’s enlargement) and their legal assistants known as référendaires (see howeverhere for a recent update from four GC judges where it is submitted that 80% of the GC’s backlog has now in fact been liquidated and that in the first four months of 2015, the number of completed cases exceeded the number of new cases filed).

In parallel to these distressing trends, the situation has begun to worsen as well with respect to the CST due to the rather childish inability of the Member States to fill two vacant slots since September 2014 – out of a total of seven as previously noted – following persistent disagreement about how the principle of rotation should be implemented.

The Court of Justice’s latest solution

In 2011, the CJ initially refused to consider the creation of new specialised courts – a solution which at the time was favoured by the GC itself – and suggested instead the appointment of 12 extra judges at the GC. However, following persistent disagreements between the Member States on how to rotate the appointments between themselves, this preliminary solution was removed from a package of reforms to the Statute of the Court of Justice.

This led the President of the CJ to suggest last October the progressive doubling of the number of GC judges (from 28 to 56). However, to mitigate the economic burden engendered by the proposed doubling, the abolition of the CST was also suggested – with its seven judges expected to move to the GC – and a gradual implementation of the reforms, with an initial increase of 12 judges in 2015; a further increase of 7 in 2016 following the dissolution of the CST and the transfer of its case-load to the General Court; and finally, a last set of 9 additional judges to be appointed in 2019. The proposed abolition of the CST was something of a surprise as most observers consider it a success story and indeed, it has been presented as such by President Skouris himself on the occasion of its 5th Anniversary.

Be that as it may, the CJ’s proposal would therefore ‘only’ result in the net creation of 21 extra judges, at an alleged net cost of €13.875m per year, assuming that there are 7 judges working at the CST in 2016. While this amount does not appear to take into account the €168m for the construction of a new tower, an expense which is however justified by the need to ‘repatriate’ staff who have been working in prefabricated buildings since 1999, the economic cost of the CJ’s proposal may be viewed as relatively modest. One may for instance compare this estimated cost to the total amount of damages currently claimed against the EU on the basis of Article 47 of the EU Charter, i.e., €26.8 million. The economic importance of the cases heard by the GC is also such that the cost of the CJ’s proposal is not a significant argument one may raise against it. We argue however that the solution put forward by the President of the CJ (and recently endorsed by the Council) is not adequate both from a structural and sustainability point of view.

Critical Assessment

As nicely summed up by our colleague Steve Peers, supporters of the CJ’s solution have relied on the following arguments to support the proposal to progressively double the number of GC judges:

  1. It would be a more flexible solution than the creation of specialised courts to the extent that litigation may increase in areas not initially foreseen and that cases most suitable for specialised courts tend to be repetitive and easy to deal with;
  2. Keeping such cases closer to the CJ would also make sense considering that the CJ may have to deal with similar cases via national references for a preliminary ruling;
  3. The appointment of new judges to the GC could be done swiftly and would also avoid any pork-barrel politics should the specialised courts not consist of a judge per Member State (as has been the case with the CST);
  4. Finally, the CJ’s solution would have the singular advantage of simplifying the EU judicial system.

These are sound arguments but unfortunately none of them are, in our view, empirically substantiated. The lack of any proper prospective impact assessment of the CJ’s proposal is, in this respect, particularly regrettable. Similarly, one may deplore the top-down, not to say authoritarian, approach adopted by the President of the Court, which suggests a deliberate attempt to avoid any meaningful discussion of reasonable alternative proposals, such as the establishment of specialised courts with jurisdiction to hear and determine direct actions in a specific area. The CJ’s proposal also marks a shift away from the principle of specialisation – endorsed by the Masters of the Treaties and set to materialise into the creation of subsequent specialised chambers, such as in trademark litigation (representing around 1/3 of the GC’s workload) – towards a generalist jurisdiction made up of two judges per each Member State.

As for the argument raised against the principle of specialisation – to avoid creating a court with a ‘rigid’ jurisdiction that might not be justified in the light of future workload – well, the same argument could actually be invoked against the creation of a ‘super-GC’ whose future caseload is unlikely to double in the near future. This is especially true given the limited access to justice in direct actions currently granted by the Treaty as interpreted by the CJ. More critically, we submit that the doubling of GC judges is an unnecessary distraction from less visible and arguably more decisive issues such as case management and productivity per personnel unit. Those challenges, if tackled properly, would most likely bring long-lasting benefits to the institution without entailing a radical restructuring of the EU’s judicial system.

We therefore propose to step back from what has become a largely emotive and not always evidence-based debate in order to gauge whether an alternative diagnosis and set of reforms should not be in order. Continue reading

Stop bashing the EU with olive oil

Alberto Alemanno considers a tale of Euroscepticism, political opportunism and a European Commission ‘own goal’

In the aftermath of the last EU summit, one of the many provisions proposed by the European Commission within the framework of its action plan for the olive-oil sector unexpectedly gained global attention.

The provision, which had already won member states’ backing, would have required that restaurants serve olive oil in sealed, clearly labelled and non-reusable containers, instead of relying on refillable containers. The UK’s prime minister, echoed by his Dutch counterpart, publicly attacked the Commission’s adopted proposal by dismissing it as “exactly the sort of area that the European Union needs to get right out of”. While Dacian Cioloş, the European commissioner for agriculture, initially defended the proposal as a way to promote quality olive oil and to protect consumers from fraud, he rapidly withdrew the measure, declaring that the ban was “not formulated in such a way as to assemble widespread support”. Continue reading

Nudging Europe: Why the European Commission should include behavioural insights in the design of regulatory proposals

Alberto Alemanno

In recent years, findings in behavioural sciences have highlighted the complex cognitive framework in which people make decisions. In particular, behavioural economics, by refuting the neoclassical assumption of human full rationality, has revealed a set of psychological biases capable of explaining why too often people make choices that seem to go against their best interests. Thus, for instance, owing to the tendency of people to stick to the default option, inertia and ‘default rules’ have a large effect on the outcomes for society: unless you are automatically enrolled in a savings plan, you are unlikely to opt in. Framing and presentation can also influence individual behaviour: when patients are told that 90% of those who have a certain operation are alive after three years, they are more likely to have the operation than when they are told that after three years 10% of patients are dead. In other words, choices are not only made on the basis of the expected outcome but tend to be affected by how they are framed. Similarly, information that is vivid and salient can have a greater impact on behaviour than information that is statistical and abstract: pictorial warnings on tobacco products produce greater dissuasive effects than text warnings. Finally, in multiple areas, individual behaviour is largely influenced by the perceived behaviour of other people. In particular, perception of what is the social norm in a given community may affect risk-taking, vis-à-vis – for instance – tobacco, drug and alcohol consumption.

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Let’s make the European Courts tweet! Why the Court of Justice should embrace social media

Alberto Alemanno.

Following in the footsteps of the US Supreme Court, the UK Supreme Court (SC) signed up for Twitter on February 1.  It was first used to live-tweet coverage of the new justice Lord Reed’s swearing-in ceremony, and the SC has been tweeting since then about the cases it hears in an effort to increase transparency in the legal system.

@UKSupremeCourt is run by the SC’s communications team, who promise 2-3 tweets each week on cases, judgments, and any corporate announcements from the SC. The SC’s Twitter policy can be found here. This short document spells out how often the SC will tweet on average, its rules on @replies, and why they will not follow you back if you follow them.

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The Microban judgment – Expanding Access to Justice in Europe

Alberto Alemanno

Delivered on October 25 2011, the Microban judgment, by defining the new category of challengeable acts laid down by the Lisbon Treaty, softens the locus standi of individuals in front of EU Courts.  As such, it is of considerable importance for practitioners of EU law.


Under settled case law, access to justice is one of the constitutive elements of a European Union based on the rule of law. According to the Court of Justice of the European Union (CJEU), this is guaranteed in the treaties through establishing a ‘complete system of legal remedies’ designed to permit the CJEU to review the legality of measures adopted by the EU institutions. Yet, in the framework of the action for annulment, the conditions for legal standing have historically been restrictive, which has led many to question the ‘completeness’ of the EU judicial system. While an individual may lodge a complaint against an act that is specifically addressed to him (e.g. a decision finding anticompetitive behaviour), he could not challenge an act of which he was not the addressee unless he could show that the act was of individual and direct concern to him. In particular, the concept of ‘individual concern’ was construed very narrowly: the applicant had to show that he was affected by the measure in question just as if he had been the express addressee. This interpretation meant in practice that, besides a few exceptions, a complainant could contest the validity of general legislative measures, such as a regulation or a directive, in so far as they are typically designed to create general rules aimed at an indefinite number of addressees.

To mitigate the ensuing situation of ‘denial of justice’ caused by the restrictive rules on standing, the CJEU systematically held that the preliminary reference procedure under Article 267 TFEU (ex Article 234 EC) could adequately complement the action for annulment, in that it allowed individuals the opportunity to challenge the validity of measures adopted by EU institutions in front of national courts. However, as illustrated by judicial practice, this approach failed to recognize that, in the absence of implementation measures, the parties were often unable to initiate national court proceedings aimed at eventually triggering a request for a preliminary reference on the validity of the EU measure in question.

The Lisbon Treaty seemed to address this loophole in the EU ‘complete system of legal remedies’: the provision setting out the annulment action was modified such that Article 263(4) TFEU now allows individuals standing to challenge ‘regulatory acts’ which are of ‘direct concern’ to them and ‘do not entail implement measures’. However, in the absence of a definition of this expression, the precise meaning of this additional category of acts that are subject to judicial review by individuals was unclear.  We have had to wait until October 25, 2011 to obtain from the General Court of the European Union (GCEU) a first definition of this new category of challengeable acts.

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