The General Court is all geared up for the final steps of its definitive and long-awaited full enlargement. It has taken several years and a gradual and somewhat painful process to reach the total of fifty-six judges, which will be down to fifty-four once the UK leaves the Union. In order to prepare the General Court for this seismic event, some measures have been put into place. One of them is a very significant development, not only for the General Court, but for EU law in general: the creation of specialised chambers.
Specialised chambers have been a subject of long-standing discussion. In general, the topic of specialisation has been present for decades, mostly as a result of complaints from experts in fields like tax, criminal law, private international law or industrial property. Every time the Court entered into unchartered waters that touched the domains of new areas of practice, the experts would jump and cry to denounce the Court’s lack of sensitivity, expertise, etc… It was a rather useless complaint, because Union courts are, in their very nature, generalist courts that deal with all kinds of cases touching all areas of law. Also, the rules that are subject to interpretation by the Court are at times indifferent when it comes to areas of practice. The freedom to provide services doesn’t really care whether it is touching upon criminal law, family law or tax. The rule is all about bringing down barriers to trade in services, irrespective of how the Member State tries to do it and through what areas of law.
However, in certain fields, particularly when the EU legislature has enacted an all-embracing legal regime covering a subject matter in its practical entirety, the issue of specialization can make sense. For example, a field like intellectual property, in which the EU has introduced a trademark Regulation, a Directive and additional instruments covering different kinds of IP rights, including the creation of EUIPO and its review bodies, can justify a certain degree of specialization in Luxembourg. The same could apply to customs law, VAT, competition or staff cases. Why not? In fact, the reality is that inside the Court of Justice and the General Court there are de facto specialists: judges and legal secretaries well known for their expertise in certain areas, whether because they dealt with those topics throughout their careers, or they have handled many cases on these matters while working at the Union courts.
Finally, the Court announced yesterday that the General Court will be introducing specialized courts in the fields of intellectual property (trademarks and plant varieties) and staff cases. Of the General Court’s new ten chambers, four will deal with staff cases, and six will handle intellectual property cases. The rest of the cases will be handled by all chambers through the ordinary attribution system. The press release is available here.
It is not a full specialization of courts, but it’s a relevant first step. It entails that some chambers will deal exclusively with staff cases, and other chambers will be in charge of IP (trademarks, mostly). It’s a way of distributing the burden of cases which judges are not always happy to deal with, at least not in large amounts. It also avoids creating a purely specialized chamber dealing with specific matters only. The reform is a clever and subtle way of taking a big step forward towards specialization, but avoiding the risks and critiques that have been made in the past towards specialized chambers.
Overall it is a positive step forward. Judges need to familiarize themselves with certain areas of law, particularly when these matters are recurrently being brought to court. The fact that judges at the General Court have only six-year mandates, and many times not renewed, introduces certain instability in the case law. By creating specialized chambers, a more solid body of case-law will develop, and better expertise will be found in judges and their legal secretaries. Judges and staff may come and go, but a core of knowledge and expertise will remain within the chamber. And that’s good for the stability of the case-law and legal certainty.
This development also confirms the predictions of those who foretold how momentous the enlargement of the General Court would be. At first, the official argument was that the enlargement was a mere housekeeping measure to enhance efficiency. Many didn’t see it that way and anticipated very significant changes ahead. Yesterday’s announcement proved them right. The General Court is on the path towards a new distribution of tasks, another big step into becoming a very different court to one it was prior to the 2015 reform.