84.    Since the CFI started hearing cases in 1989, there has been a significant increase in its workload, due mainly to extensions of its jurisdiction in 1993 and 1994. Although the CFI's productivity has improved, it has not kept pace with the increase in judicial business, and the backlog of undecided cases has reached alarming proportions. The number of cases registered with the CFI climbed from 55 in 1990 to 624 in 1997. This figure could double if estimates of the number of cases likely to be generated by the Community Trade Mark Regulation prove accurate. During 1997, the CFI disposed of 173 cases but, by the end of that year, there were still 1,106 actions pending. This has resulted in unacceptable delays in the average time required to dispose of each case. In 1997, the average duration had reached 18.7 months for staff cases and, for all other actions, 29.3 months.

  85.    In order to alleviate this problem, the Court of Justice has asked the Council to permit the CFI to give decisions in some cases when constituted by a single Judge.[26] The proposal does not entail any increase in the CFI's resources or any changes to its present composition. Its goal is to improve the functioning of the CFI by enabling the same number of Judges to deal with more cases more quickly. On the CFI's own estimates, there could be a saving in judicial time of the order of ten per cent if one Judge were to be empowered to hear cases in the limited areas set out in the proposal. Use of a single Judge offers the further advantage of being likely to reduce the time taken to process each case. There could be even greater savings if the system proves acceptable in practice and is expanded to encompass a wider range of actions. The Committee believes that the single Judge proposal could appreciably increase the productivity of the CFI and reduce the time taken to dispose of cases, while remaining within the Court's existing resources. In our view, the proposal should be adopted and implemented without delay.

The principle of the single Judge

  86.    Some witnesses objected to the Court's proposal on the basis that it would undermine the collegiate character of the CFI, thereby "nationalising" it and altering its essential character. They argued that this would damage its legitimacy. The Committee found that view unconvincing. A greater threat to the legitimacy of the CFI is excessive delay before giving judgment. In any event, the Court's proposal does not entail an abandonment of collegiality, but a modification of it. Cases would continue to be assigned initially to a Chamber composed of five Judges or of three. A three Judge Chamber would have the power, in certain circumstances, to delegate a case to the Judge-Rapporteur sitting as a single Judge, but the decision whether or not to do so would be taken collectively by all the members of the Chamber. If the case turned out to be more difficult than originally thought, the single Judge would be able to refer it back to the Chamber as a whole. Moreover, collegiality is not simply a function of multi­judge decision­making in all cases. The location and structure of the CFI and informal interaction between its Judges all serve to enhance collegiality. A Judge sitting on his own in one case will be sitting in others as a member of a three or five Judge Chamber. The Committee believes that the single Judge proposal could help to reinforce the independence of CFI Judges, exercising a European jurisdiction in which nationality is irrelevant.

  87.    The Committee accepts that it might sometimes (though not always) be unreasonable to expect newly appointed Judges to sit on their own immediately. This could be avoided if the possibility that a case might be suitable for delegation to a single Judge were borne in mind when the Judge Rapporteur was designated. Under the Rules of Procedure of the CFI, there is a dual safeguard against the designation of an inexperienced Judge Rapporteur in a case which might be suitable for delegation to a single Judge, as the Judge Rapporteur is designated by the President of the CFI on the basis of a proposal by the President of the relevant Chamber. Moreover, in deciding whether to delegate a case to a single Judge, a Chamber can be expected to have regard to the experience and other qualifications of the individual Judge who would be called upon to deal with it. Much will depend on the way in which these decisions are taken. The President of the CFI and his fellow Judges can be trusted to operate the new procedure sensibly and sensitively.

The cases eligible for delegation

  88.    Our witnesses raised two issues in connection with the category of cases eligible for delegation. One was whether the way in which the category, as defined in the proposal, was satisfactory; the other concerned the act in which the category should be set out.

  89.    With regard to the first issue, delegation would be excluded in cases where the legality of an act of general application was in issue or in cases concerning the rules on competition, mergers, State aid or measures to protect trade. Other cases could be delegated only if they were considered simple or of limited importance. It seems sensible to confine the possibility of delegation within fairly narrow limits, at any rate at the outset. This category is, in our view, conservatively drawn.

  90.    The Committee accepts the view of most witnesses that some staff cases would be suitable for delegation to a single Judge. Other cases might also be suitable for delegation, such as those forming part of a series where the points of principle had already been resolved. However, the Committee would not wish to exclude the possibility that it might in future, subject to appropriate safeguards for the principle of collegiality, be desirable to extend the system to other categories of case.

  91.    With regard to the second issue, some of our witnesses maintained that the list of cases eligible for delegation to a single Judge should be set out in the Council's Decision establishing the CFI rather than in its Rules of Procedure, as proposed by the Court. If the list were contained in the Council Decision, the European Parliament and the Commission would have to be consulted before the list was changed. Changes to the Rules of Procedure of the CFI require the agreement of the Court of Justice and the unanimous approval of the Council, but none of the other institutions needs to be consulted.

  92.    The Committee would not support any change to the proposal which had the effect of making it more difficult to change the categories of case in which delegation to a single Judge was permitted. We believe that the CFI should have greater flexibility in adapting its procedures in the light of its own experience and the demands of its case load. The need for the unanimous approval of the Council and consultation of the European Parliament and Commission before the Decision originally establishing the CFI can be amended seems to the Committee to ensure an acceptable degree of external accountability.

The right to object to delegation

  93.    The latest version of the proposal would give all the parties to a case the right to be heard before it was delegated to a single Judge. However, a Member State or a Community institution would, if a party, be able to prevent delegation. A number of witnesses objected to what one of them described as "inequality of arms" between the parties to a case.

  94.    The Committee considers these objections unfounded. The proposed rule is a consequence of an existing rule entitling a Member State or a Community institution which is a party to a case to require it to be maintained before or referred to a Chamber of five Judges. That rule is itself a consequence of Article 165 of the EC Treaty which requires the Court of Justice to sit in plenary session when asked to do so by a Member State or a Community institution party to the proceedings. It would be illogical to allow Member States and institutions, where parties, to insist on five Judges but not on three. In practice, the right to demand five Judges is rarely exercised and it seems unlikely that the power to block delegation to a single Judge will be frequently invoked.

Beyond the single Judge

  95.    None of our witnesses suggested that the single Judge proposal was a complete solution to the problems confronting the CFI. Further steps to enable it to handle its workload quickly and effectively are highly desirable and will become essential if anything approaching the volume of cases expected to be generated by the Trade Mark Regulation in fact materialises. It is outside the scope of the present enquiry to undertake a wider review of the procedures and jurisdiction of the Community Courts. However, our witnesses put forward a number of suggestions for improving the present position. The Committee believes that two reforms in particular, neither of which require further resources, ought to be given further consideration.

  96.    First, the CFI needs greater freedom to adapt its Rules of Procedure in the light of the demands placed on it by its workload. The Treaty requirement that the unanimous approval of the Council be obtained for even the smallest change to the Rules of Procedure renders the system insufficiently flexible to respond rapidly to the changing nature of modern litigation. If the Member States wish to retain some control over proposed changes to the Rules of Procedure, there are two ways in which this might be reconciled with the need for greater flexibility. One would be to allow the Council to give its approval by qualified majority. Another would be to deem the Council's approval to have been given if it had not indicated otherwise by the expiry of a specified period.[27] A Treaty amendment would be required to give effect to a change of this nature. If such an amendment were to be made, it should extend to the Rules of Procedure of the Court of Justice, changes to which at present also require the unanimous approval of the Council.

  97.    Secondly, consideration might usefully be given to the establishment of a consultative committee to provide a forum for exchanging views between the CFI and the clients of those who appear before it. Although the CFI regularly has informal contacts with lawyers, a mechanism for consulting directly those whom the lawyers represent would help to keep the CFI informed of the interests of the wider community.

  98.    But, in the long term, the CFI needs more Judges. The figure of six was mentioned by a number of witnesses because it would enable the creation of two additional three­Judge Chambers and two additional five­Judge Chambers. Enlarging the membership of the CFI could be achieved without amending the Treaties, since the number of Judges is laid down in the Council Decision establishing the CFI. It will not be sufficient to wait until the accession of new Member States. Extra Judges will be needed well before the next enlargement of the Union is likely to take place. In nominating additional Judges, the Committee considers it important that the Member States pay regard to the nature of the cases with which the CFI is called upon—and will be called upon in the foreseeable future—to deal. In particular, it seems to the Committee desirable that at least some of those appointed should have expertise in the field of intellectual property.

RECOMMENDATION

  99.    The Committee considers that the Court of Justice's proposal to the Council that in certain categories of case the Court of First Instance should be able to be constituted by a single Judge raises important questions to which the attention of the House should be drawn, and makes this Report to the House for information.

27   Such a suggestion was put forward by the Court of Justice in its report on the application of the Treaty on European Union prepared for the IGC opened in 1996. Back