Deliberations on the need for court reforms

Date: 02/07/1998

By Ian S Forrester QC

A WELL-functioning system of justice is a necessary element in a healthy democratic structure.

The European Courts in Luxembourg are an indispensable part of the human and economic legitimacy of the EU. Over the next ten years, they will confront the need for major reform as we move to a decentralised Community of 25 countries: a single collegiate court in Luxembourg will be unable to cope with the demand for decisions on questions coming before national courts.

Since courts cost money, and since governments prefer to spend money more profitably, a crisis is very likely in a few years' time, followed by an underfunded solution.

But the judicial backlog is already alarming. The Court of First Instance was set up to relieve pressure on the Court of Justice, and to do a better job than the latter in effectively scrutinising European Commission behaviour in competition (and latterly anti-dumping) cases.

It has succeeded in doing the latter, but has itself become over-burdened, leaving the Court of Justice free to handle more constitutional questions at a reasonably steady pace.

The backlog of undecided cases stands at more than 1,100. This is not quite as alarming as it sounds, as more than half of these fall into one of three identical classes (300 under-employed customs agents are suing the Commission for damaging their employment prospects, 70 officials are claiming a promotion reclassification on identical theories, and so on).

But fewer than 200 cases are decided each year; and appeals against rulings of the Board of Appeals of the Alicante Trademark Office will soon start arriving. No one knows how many there will be, but estimates suggest that the Court of First Instance may have 300 to 600 such appeals to process each year.

The Court's own proposal is really a very modest one: in certain cases where the law is basically clear, let the judgement be written by one rather than three judges. This would supposedly save days of judicial time every month.

The suggestion has provoked protests, albeit in decorous language, from various bar groups who say that a multi-national chamber of judges is an important element of Community justice, that certain judges may not do a good job if left to handle cases alone, that the solution is too modest and more thorough-going reform is necessary.

I do not share these views. First, the Court is best placed to identify the reforms which will help it do its work. It seems a pity that such forensic firepower has been deployed to criticise a very moderate attempt to solve a serious problem.

Second, the Court is not the Council of Ministers wearing wigs: if we trust the notion of Community justice, we have to accept that a judge of whatever nationality will do his or her best.

Third, there is no prospect of the member states being willing to pay for more judges. One day they will have to, but the crisis is not yet cataclysmic enough. So the choice is between doing a little better or getting steadily worse. The Court of First Instance should have its way.

However, there are some other reforms which I would offer for consideration. Lawyers find it easier to be eloquent at length rather than briefly. The file in a cartel case extends to hundreds or thousands of documents. The Court could require (or request?) a three-page summary; and could set a limit on the number of pages either in all pleadings or in pleadings subsequent to the initial application. The US Supreme Court is an example.

The Court could shorten its judgements: in the early days, these were wonderful reassurance that judges had studied and understood the issues. A terser style, which reflects the Court's own assessment of which issues are the important ones, followed by judicial analysis, would suffice and would render the judgements easier to read.

But the best step would be to eliminate the hearing at first instance of staff cases, most of which are in effect social complaints about poor management. They would not have arisen in a more human institution, and doubtless they often reflect justified dissatisfaction. Arguing staff cases means finding cracks in the Commission's staff regulations, discrimination, failure to be fair in according a benefit, and the like.

What most staff litigants desire is to be fairly treated, and to have their complaints impartially addressed. One solution could be to establish an internal Commission staff ombudsman, with power to conduct an investigation, publish his or her findings (about, for example, that non-existent phenomenon, vacant posts bearing national flags), and give the ombudsman the duty of disposing of each dossier in six months. Appeals could lie on purely legal grounds to the Court of First Instance.

Doubtless the judges of the Court feared they would be lynched if they were to say publicly that they did not wish to devote more than a third of their time to solving the social problems created by the imperfections of the institutions' employment practices.

But the luxury of full judicial review in Luxembourg is one benefit which Community officials cannot in the long-run continue to enjoy.

This article reflects the personal views of the author.