THE WORKLOAD OF THE CFI

  27.    An explanatory memorandum attached to the draft decision drawn up by the Court of Justice noted the "constantly increasing" number of cases brought each year before the CFI, a development which was "the result in particular of the successive extensions of jurisdiction accorded by the Council in 1993 and 1994". The Court anticipated a further substantial increase in the number of cases as a result of the entry into force of the Community Trade Mark Regulation. According to the Court, "[t]he capacities of the Court of First Instance are already barely sufficient to deal with the judicial business relating to the other fields of Community law". The Court observed that, "unless appropriate measures are taken to ensure its proper functioning, the Court [of First Instance] will no longer be in a position to carry out the task entrusted to it if the forecast concerning Community trade­mark litigation proves to be correct and if the number of cases brought in fact doubles in the near future"[13].

  28.    Judge Vesterdorf said of the position in which the CFI found itself: "It is not by any means a crisis but it is a serious situation which demands that certain measures must be taken in order to cope with that situation". He acknowledged that no cases under the Trade Mark Regulation had yet been brought, but said that he expected them to start arriving next year. Mr Jung explained that OHIM had received some 80,000 applications, many more than originally expected. OHIM anticipated that it would receive about 30,000 applications in a normal year. Mr Jung said: "Roughly speaking they believe that one or two per cent of the applications filed with the office may lead to litigation before the Court of First Instance. This will then be between 300 and 600 cases. Even if this is over­estimated, which we do not know, if it is only half of that, 150 cases on top of what we already have would be too much". Judge Vesterdorf added: "If indeed during the next year we receive perhaps 100 or 150 cases through the year it will be evident at that time that it will become a crisis and then we shall have to do something about it and that will be more than a single Judge, there is no doubt about that" (QQ 50, 58 and 59).

  29.    The Court's appraisal of the pressures under which the CFI is currently working was not disputed by any of our witnesses. For the Government, Mr Hendry accepted that there was a problem: "The Government is anxious to do what it can to help solve the problem—preferably in advance of the problem becoming very serious—if and when these appeals arrive" (Q 118). The CCBE said that "[t]he new jurisdiction which the CFI has acquired in relation to the Community trade mark will make its situation impossible, unless significant further steps are taken. But even before the trade mark cases arrive, there is real concern among lawyers practising before the CFI that the present situation could lead to a serious deterioration in the quality of justice at the CFI, particularly through excessive delay". Ms Finlay Geoghegan described the situation as one of "real crisis" (p 4, Q 2).

  30.    That assessment was broadly endorsed by the Law Society, the Law Society of Scotland, the Délégation des Barreaux de France (French Bars) and members of the Bar Council of the Bar of England and Wales. The European Civil Service Federation (FFPE) said it was amongst those primarily affected by the growing backlog of cases confronting the CFI and shared the desire to enable it to function properly (p 41).

  31.    The CCBE provided a detailed analysis of statistics supplied by the CFI about its work.[14] According to the CCBE, those statistics showed that, although the CFI had significantly increased its productivity, there had been a steady increase in the delay before judgment, which now stood at nearly 30 months on average for cases other than staff cases. The CCBE concluded that the scale of the problem was such that "if the CFI did nothing else but work to clear the present backlog of pending cases this could, at least on the basis of its past performance, take between three and five years" (p 2).

  32.    The CCBE added that the Court of Justice was itself operating under growing pressure and that the entry into force of the Treaty of Amsterdam would further increase its workload. However, the possibility of additional extensions in the jurisdiction of the CFI could not at present be contemplated because the CFI would not be in a position to cope (p 3).

  33.    Dr Lasok underlined the "intensive use of judicial time" involved in giving collegiate judgments. He drew particular attention to the field of merger control, where he claimed that judicial review of Commission decisions was "in danger of becoming theoretical because, by the time when the CFI will have decided an application for the annulment of a Commission decision, the damage will to a material extent have been done (if a merger has been permitted when it should not have been permitted) or it will not be possible to resurrect the deal (if a merger has been prohibited when it should have been permitted)" (pp 47, 48).

  34.    Dr Plender warned against the misleading impression liable to be given if a comparison were made between the number of cases decided annually by the CFI and the number decided by a typical national administrative court. He pointed out that proceedings before the CFI commonly involved numerous parties; that there was provision for a large number of interlocutory steps; that cases in the CFI often presented complicated issues of fact; that the CFI's jurisdiction was diverse; and that Judges had to work in more than one language (p 55).

THE PRINCIPLE OF THE SINGLE JUDGE

  35.    A fundamental question raised by the proposal was whether it threatened to undermine to an unacceptable degree the collegiate character of the CFI. The Court of Justice described the introduction of a single Judge as "an important innovation for the Community judicial system" and said that it did not therefore rule out a gradual approach and a trial period. It explained that its proposal "belongs to the context of a general trend which may be observed in the legal systems of the Member States. The majority of national courts are, like the Community Court, faced with the problem of increasing judicial business. In the national legal systems recourse is increasingly being had, with a view to resolving this problem, to the single Judge". The Court acknowledged the importance of ensuring "that several Judges from various national legal systems will be present when the Community Court is called upon to decide new and important questions, to develop Community law and to lay foundations which will be of general significance for the future interpretation of the applicable rules". However, it did not consider the involvement of several Judges essential in cases of limited importance which could be decided by reference to an established line of case law. The Court said that the proposed amendments to the Rules of Procedure of the CFI preserved as far as possible the principle of collegiality and helped ensure that any case which was important or which raised difficult or novel questions would be heard by Judges from at least three different national legal systems[15].

  36.    However, some witnesses objected in principle to allowing the CFI to have recourse to a single Judge. The CCBE said it was "strongly opposed to any alteration to the constitution of the CFI that would undermine its multi­judge (and thus multi­national) nature". Pluralism was a major source of strength in all the Community institutions and helped to `depersonalise' and `denationalise' the Community judicature, thus increasing public acceptability of its judgments. Ms Finlay Geoghegan emphasised the need to reinforce the authority of and confidence in the CFI "as a new court in a relatively embryonic legal order", sometimes perceived as a foreign court hearing challenges to the acts of foreign institutions. Mr Waelbroeck said that, in a multi­cultural Community, it was important not to allow judgments to be identified with a specific nationality (p 4, QQ 2, 4, 10).

  37.    The CCBE did not, however, object to the proposal in so far as it related to staff cases, the handling of which it accepted would improve if they were capable of delegation to a single Judge. Mr Forwood said the CCBE was also "fairly comfortable" with allowing single Judges to deal with interlocutory matters, as long as that category did not extend to the disposal of cases by order rather than by judgment. He explained: "We have no difficulty at all with more efficient ways of handling cases as they run" (QQ 2, 14, 39).

  38.    The importance of preserving the collegiality of the CFI was also emphasised by the Faculty of Advocates, the Law Society of Scotland and the Délégation des Barreaux de France. The FFPE said it would be a very significant disadvantage if decisions of the CFI were "no longer taken by Judges from several EU states each with their own rich but also diverse legal traditions, thereby ensuring (an often refreshing) but above all essentially European breadth of approach" (p 42). Professor Vandersanden observed[16] that "a Judge sitting alone might well be perceived as less credible and less reliable than a bench of three Judges" (p 45).

  39.    For the Government, Mr Hendry said of the proposal: "we do not see it as a radical and revolutionary step, nor one which may necessarily solve all the problems—but it is a step in the right direction". Mr Hendry said that "the Government obviously regards the multi-judge, multi-national character of the Court of First Instance, as the European Court does, as important. On the other hand, we do not regard the proposal for certain cases to be heard by a single Judge as doing away with the character of the Court." He pointed out that a Chamber of three Judges would decide whether or not to delegate a case to a single Judge and that the single Judge would be able to refer the case back to the Chamber of three if he considered that it no longer fulfilled the criteria for delegation (QQ 118, 136).

  40.    Mr Collins explained that all the Member States appeared to support the proposal in so far as it related to staff cases. Beyond that, the United Kingdom was one of 12 Member States which were basically in support of the proposal, but three Member States had expressed doubts about it. Their main concern seemed to be that hearings by a single Judge would detract from the collegiate nature of the CFI. Mr Collins thought that the force of that argument depended on the extent to which the CFI was classed as an international court. His own view was that the CFI was international only in the sense that it was not national. He pointed out that it did not deal with disputes between States (QQ 109, 111, 140, 145).

  41.    Judge Bellamy said: "In my view it is wrong to see this proposal as an abandonment of the principle of collegiality; it is a modification of the principle of collegiality". Judge Vesterdorf observed: "the type of cases that we are talking about in this proposal are cases in which I fail to see the relevance of the nationality of the judge. Some of the staff cases were concerned with whether or not a particular member of staff had a right to four days of holiday or three days of holiday. Whether it is a British, German or Danish judge does not make any difference". Judge Potocki stressed that the CFI comprised 15 European Judges applying a common tool, European law. He added that, in any event, it was not unusual in private international law for cases to be decided by judges whose nationality and cultural background differed from those of the parties. Judge Potocki observed: "It seems to me that the legitimacy of the judge is not really assessed on the question of who he or she is but on how he or she deals with the cases". He thought that litigants would consider a Judge's efficiency more important than his nationality (QQ 72, 73, 75). For the Government, Mr Hendry said that "the legitimacy of the Court ... should not and does not depend on there being a certain number of judges dealing with a particular case. It is more the reputation of the Court itself which it acquires by its performance, whether consisting of one, three, five Judges, or a full Court" (Q 136).

  42.    The CCBE noted that no national court, even at the highest level, had jurisdiction to declare a Community act invalid.[17] It might be thought inconsistent with that rule to allow Community acts to be declared invalid by a single Judge of the CFI (p 4, Q 6). That point was endorsed by the Deutscher AnwaltVerein (German Bar Association), which said that the Court's proposal "could mean a breach of fundamental principles of Community law, such as the principle of the rule of law (`Rechtsstaatsprinzip')" (p 39). Judge Vesterdorf acknowledged that, like a Chamber of the CFI, a single Judge would be able to declare an individual act of one of the Community institutions invalid. However, he pointed out that, under the latest draft of the proposal, a single Judge could never be called upon to declare invalid an act of general normative character (Q 80).

  43.    The CCBE, the Faculty of Advocates, the Law Society of Scotland and the Délégation des Barreaux de France found unconvincing the comparison drawn by the Court of Justice with national courts which sit with single Judges. The CCBE argued that undermining public confidence in the CFI, which was linked to its multi­national and multi­Judge composition, could lead to more appeals. In many of the countries which had single Judges at first instance, there was an appeal on both fact and law to a (multi­judge) appeal court. The CFI was a tribunal of last instance on all issues of fact. Moreover, the members of the CFI came from a wider range of backgrounds than was usual in the national courts. Certain members might as a result find it difficult to sit as a single Judge in the years immediately following their appointment. Ms Finlay Geoghegan observed that "at present undoubtedly people are appointed who do not have experience either as advocates or as judges". Mr Waelbroeck said that one of the advantages of the collegiate system was that "you balance the qualifications of the judges". He maintained that, if the single Judge proposal were implemented, the system for appointing Judges would have to be reviewed (pp 2, 4, QQ 2, 9).

  44.    The FFPE agreed that the training and integration of new Judges would be more difficult if they were expected to sit alone from the outset (p 42). Professor Vandersanden noted that the quality of the Judges and their assistants, on which the value of a decision given by a single­Judge Court would depend, might vary considerably, particularly in the case of new appointees or those from new Member States (p 46). The Law Society of Scotland said that the Court's proposal "could lead to claims that cases had been wrongly decided due to factors relating to the single judge such as his nationality or perhaps even his prejudices" (p 54). Some members of the Bar Council thought that Judges sitting alone "may be exposed by their single opinions to political and social pressures" (p 37).

  45.    Judge Vesterdorf explained how the membership of individual Chambers was determined and the Judge­Rapporteur in a particular case chosen. One factor taken into account in relation to the former was the desirability of ensuring a mix of experienced and less experienced Judges. As for the identity of the Judge­Rapporteur, it was the responsibility of the President of the Chamber to propose a name to the President of the CFI. Cases would normally be allocated among the members of the Chamber in turn, subject to the need to ensure an even distribution of work. If the President of the CFI was content with the name put forward, he would designate the individual concerned as Judge­Rapporteur (QQ 63, 64).

  46.    Judge Vesterdorf said that this system would make it possible to ensure informally that Judges were not asked to deal on their own with cases in which they would be out of their depth: "The Chamber President will always be a Judge with a considerable length of experience in the court. When he decides or proposes who should be the Judge[­Rapporteur] he will also have an eye on which of the cases might be suitable for giving to a single Judge. I feel confident that a President of the Chamber would make sure a totally new Judge who had just joined the bench would not be singled out to deal with that sort of case for at least the first year maybe". Judge Vesterdorf added, however, that there would be certain cases "of such a singularly simple character" that even a completely new Judge could safely be asked to deal with them alone. Whatever their backgrounds, all the Judges had considerable legal experience and had been considered qualified for appointment (Q 78).

  47.    Dr Lasok considered the argument that collegiate judgments protected individual Judges from attack of "little relevance to CFI proceedings, in which the political element often present in ECJ cases is absent". In any event, the judgments of the CFI were "often delivered by chambers having such a small number of judges that the protection supposedly afforded by a collegiate judgment is illusory" (p 50). For the Government, Mr Collins said that, when a case was before a Chamber of three, "you can recognise three Judges as much as one Judge. Most people know that the lead is always taken by the reporting Judge" (Q 138).

  48.    Dr Lasok argued that, whatever its validity in relation to the Court of Justice, the argument in favour of the collegiate nature of the Community Courts had always been particularly weak when applied to the CFI. From its inception the CFI had almost invariably sat in Chambers and hardly ever in plenary session. It had been established mainly to deal with cases requiring a close examination of complex facts and its jurisdiction was originally limited to fields where there was an extensive body of Court of Justice case law to guide it. The possibility of an appeal to the Court of Justice preserved the ability of that Court to ensure the uniform application of Community law and correct any national bias. Where the case law of the Court of Justice was not very helpful, the area was likely to be a technical one where there might be little to be gained from seeking inspiration from national law. Dr Lasok did not think that there was any reason of a constitutional nature to regard the collegiate character of the CFI as a necessary part of its identity. The Treaties left to the Council the task of determining the composition of the CFI and the extent to which the provisions governing the Court of Justice should apply to it. Collegiality was not therefore enshrined in the Treaty, but was "merely a principle that the Council is free to adopt or to depart from where appropriate" (pp 49, 50).

  49.    Those consulted by the Bar Council suggested a number of procedural reforms designed to introduce greater efficiency. They were content for single Judges to deal with staff cases and interlocutory applications (provided in the case of the latter that the matter could be referred speedily to a Chamber composed of three Judges where necessary). Those consulted were divided on the question whether recourse to single Judges should be permitted in other cases. The Law Society of Scotland took the view that delegation should be permitted only "in very clearly defined and narrow circumstances". It said it "could support single judges being used in staff cases" and perhaps also in cases dealing with procedural matters or interim orders (p 54). Judge Potocki pointed out that several types of interlocutory decision were already taken by the President of the CFI or the President of the Chamber concerned sitting as a single Judge (QQ 89, 90). For the Government, Mr Collins said that the most important of the matters at present dealt with by a single Judge were applications for interim measures. He noted that "sometimes at an application for interim measures the case is effectively decided" (Q 136). Dr Plender, who described the Court's proposal as "far from radical", pointed out that some decisions currently taken by a single Judge might have considerable importance for the parties. He added: "There is ample precedent for the allocation of cases to single judges, even in the resolution of disputes between States" (p 54).

  50.    The FFPE thought there was "a potential ethical conflict in the selfsame judge being asked to rule on interim relief applications and give final judgment" (p 42). Professor Vandersanden took the view that, if the power to order interim measures and give final judgment on the substance were entrusted to the same Judge, there was a risk that the final outcome would be prejudged when interim relief was ordered and that as a result the Judge's independence might be compromised: "One of the conditions for ordering interim measures is a supposition that the principal action is well founded; a single judge is unlikely to change his mind between the interim measures and the final decision" (p 47).

  51.    Mr Jung explained that applications for interim measures normally arrive at the beginning of a case, when it would still be pending before a Chamber. Responsibility for dealing with the application would in principle belong to the President of the CFI. Under the proposal a single Judge would only have to decide on such an application in very exceptional situations where one was made when the case was already ready for the oral procedure. Mr Jung said: "In such a situation I could see no disadvantage if the same Judge who had decided the substance of the case had given some provisional measures in the meantime" (Q 79).

THE PRACTICAL EFFECT OF THE SINGLE JUDGE PROPOSAL

  52.    Leaving aside any objections of principle, witnesses were divided on the question whether allowing the CFI to sit with a single Judge would make any appreciable difference to its ability to handle its workload. According to the Court, the advantage of permitting recourse to a single Judge would be that, by reducing the number of Judges required to sit in a case, the other Judges would be released from the obligation to attend the hearing and take part in the deliberations. The time thus saved could be devoted to other cases.

  53.    Judge Vesterdorf said that the CFI had taken the view that it could not reasonably propose more drastic and costly measures without doing everything it could to improve its productivity within its existing resources. He thought that "a significant number of cases" might lend themselves to delegation to a single Judge and that "we might achieve something like perhaps a ten per cent increase in efficiency without it costing one penny more to the taxpayers". Judge Bellamy gave a detailed account of where he thought time might be saved if the proposal were implemented. He explained that it offered the possibility not only of saving judicial time, but also of reducing the amount of time taken to process a case from beginning to end (QQ 50, 75). For the Government, Mr Collins saw this as important: "it is not so much the procedure which needs altering perhaps as, in fact, concentrating the gaps between the procedures" (Q 148). The CFI did not think that recourse to a single Judge would have any appreciable impact on the number of appeals to the Court of Justice, since experience showed that whether an appeal was brought depended more on the legal difficulty and economic importance of a case than on the number of Judges who had decided it.[18]

  54.    The Government said the Court's proposal represented "a balanced and sensible response, with appropriate safeguards, to the risk of serious overload of the Court of First Instance when trademark appeals come on stream" (p 27). Mr Collins said he had heard nothing at all to suggest that the CFI's estimates of the potential efficiency gains were improbable (Q 124). Dr Lasok acknowledged the modest nature of the proposal, but observed that "a modest beginning may be justified: it makes the innovation more acceptable and minimises the adverse consequences should the innovation prove less successful than anticipated". Although the effect of the proposal would probably be "relatively small", Dr Lasok thought that "[i]n those cases that are delegated to a single judge, it seems likely that there will be some reduction in the time taken to dispose of the case as from the point at which the decision to delegate is taken". He noted that delegation "will not (in principle) increase the burden on the judge­rapporteur because he or she would in any event have to prepare fully for the hearing and draft the judgment" (pp 50-52).

  55.    Dr Plender said he supported the proposal as a modest step towards improving the CFI's procedures, although he did not regard it as a substitute for more substantial change. He thought that allocating a case to a single Judge would reduce the delays entailed in organising oral hearings and deliberations and reaching agreement on an order or judgment. It would also enable the other members of the Chamber and their assistants to spend more time on other cases. These advantages would produce benefits for users of the CFI generally (p 54).

  56.    The CCBE was more critical. Ms Finlay Geoghegan observed: "If what was being proposed by the CFI envisaged huge judicial time saving, one might say one should take the risks which we perceive, to having cases decided by single judges". However, she considered that "the present proposals do not begin to address the problems and the crisis which exists". Even if the proposal were fully implemented, it would "only make a very small and almost insignificant difference to the working of the CFI". It was because it considered the potential improvement in the working of the CFI so small that the CCBE took the view that the risks associated with the Court's proposal were unwarranted (QQ 2, 14).

  57.    In its written evidence the CCBE said: "Given that all three judges in a chamber will in any event have to study each case to a sufficient depth in order to satisfy themselves in each case both that the criteria for transfer exist, and that the case is appropriate for transfer, it is not apparent that much further judge­time would be saved in those relatively simple cases that would be eligible for transfer" (p 2). However, Judge Bellamy explained that the decision would be taken on the basis of the written papers: "The parties would not have the right to make oral representations about it". His view was that "one would recognise almost instantaneously what cases were suitable for single Judges and which were not, so I do not myself see that part of the process taking a great deal of time". He agreed that, if a case was not recognised instantaneously as suitable for delegation, it would almost by definition not be suitable (QQ 85, 86).

  58.    The views of the CCBE on the likely effect of the proposal on the ability of the CFI to handle its workload were broadly endorsed by the FFPE, the Law Society of Scotland, the Délégation des Barreaux de France and the Faculty of Advocates, which found "little analysis in the explanatory memorandum of the costs and benefits to be derived from the proposals" (p 41). The CCBE also suggested that, where the contribution of the two other Judges was more than insignificant, the result was a better judgment which was less likely to be the subject of an appeal or overturned by the Court of Justice (p 5). The FFPE and Professor Vandersanden agreed that single Judges might generate more appeals to the Court of Justice (pp 42, 46).

14   The statistics are set out in Appendix 4 to this Report. Back

15   Appendix 3, paras 2-4. Back

16   In an opinion attached to the memorandum submitted by the FFPE. Back

17   See Case 314/85, Foto-Frost v. Hauptzollamt Lübeck­Ost: [1987] ECR 4199. Back

18   Memorandum by the CFI, section III entitled "Number of Appeals Brought and Number of Judges Hearing a Case", printed at p 16 of the evidence. Back