Op-Ed: “Future of the EU’s court system – some exclamation and question (re)marks” by Michal Kianička
I read with great interest the recent EU Law Live Long Read “A rolling stone gathers no moss – the evolving structure of the EU’s court system”, by Henriikka Leppo. The article focused on the latest reform and what the Court of Justice of the European Union (CJEU) could possibly do in the future in order to eventually make it a success and solve its remaining problems. This text wishes to be a constructive response to Henriikka Leppo’s call at the end of her contribution for a brainstorming on possible further steps.
The report on the efficiency of the General Court, as well as on the necessity and effectiveness of its latest reform, is due in about two months. However, the end of 2020 could indeed be too early for a comprehensive evaluation. The last stage of the reform was supposed to be completed only in September 2019. Further, the restructuring of this extent is not usually meant to last months or a year or two. Finally, certain (in part unexpected or even unpredictable) factors could have influenced the functioning of the General Court in recent months, or even years. They should thus be kept in mind.
First, Brexit. In 2015, when the co-legislators agreed on the reform, the General Court was supposed to have 56 judges in 2019, not 54. Following the infamous referendum in June 2016, the United Kingdom was supposed to withdraw from the EU in March 2019. The date was then postponed three times with the United Kingdom eventually leaving the EU by the end of January 2020. The uncertainty this caused regarding British judge(s), rather than the simple difference in number, probably did not make it easy to employ systemic changes to the internal organisation of the General Court, nor to distribute the cases within it.
Second, COVID-19. The situation we have all been facing since spring is unprecedented. The EU’s top court seems to have done its best to cope with it. Anyway, it would not be surprising if the time that the General Court could have used to reflect on increasing its efficiency and enhancing the quality of its jurisprudence must have been used to deal with the impact of the pandemic instead.
Third, the personnel shakes and hiccups. Whether we like it or not, judges are coming and going. The General Court is supposed to have 54 judges today. However, the website lists only 49 of them. The most recent judge to leave the General Court was the Czech judge Jan Passer, who was ‘promoted’ to the Court of Justice only a couple of days ago. Sometimes, the nomination process is fraying at the edges in Member States. The worst example here is unfortunately my country of origin, the Slovak Republic. It could nominate an additional judge in the first stage of the reform. Since then, the country has not been able to present a candidate who would convince the Article 255 panel. It received negative opinions regarding four (sic!) candidates selected by the Slovak Judicial Council, a constitutional self-governing body of the judiciary, and then nominated by the Slovak Government. Some domestic politicians perceived those rejections negatively, even as a plot, instead of asking themselves what they and all the other stakeholders, including their predecessors, could have done better. Be that as it may, the situation is hopefully going to be resolved soon. The Slovak Government recently approved the nomination of another candidate for the vacant position.
Regarding the statistics, they can be a highly useful indicator of efficiency, but playing with them can also be tricky, and thus requires the necessary prudence. For instance, it is true that lately the number of new cases in the General Court has been roughly the same as in the Court of Justice. However, comparing only the total number of cases without looking closer at their specific features can be misleading. A preliminary ruling procedure about the interpretation of the combined nomenclature probably does not equate to a complex State aid or competition case. The same also works vice versa – an EU trademark case usually cannot be compared to an opinion case concerning an EU trade agreement with a third country or a case regarding a systemic institutional dispute with far-reaching consequences. All conclusions based on the statistics should thus be drawn after a proper in-depth analysis.
Moving on now to the possibilities of how to shape the EU’s Court system in the future, transfers of jurisdiction between the Court of Justice and the General Court have been a hot topic for some time.
On the one hand, I fully agree that moving the infringement proceedings from the Court of Justice to the General Court would not help. Their number is too low to make a real difference. Besides that, it would only double the work, as there would be an appeal in virtually every case. Why? The reasons could vary among Member States or even among individual governments therein. Some of them could sincerely believe that they have done nothing wrong and would keep defending their positions. Others could see it as an opportunity to maintain the status quo for a little bit longer, prolonging the infringement of EU law, be it for economic reasons or simply for gaining some points (or at least not losing any) in a domestic political fight. In all honesty, how probable is it that for instance Hungary would not appeal the recent judgement in Commission v Hungary (C-66/18) regarding the well-known lex CEU, Belgium would abstain from appealing against a decision like Commission v Belgium (C-543/17), where for the first time the Court of Justice interpreted and applied Article 260(3) TFEU, and Germany would stop fighting after a judgment similar to the one in Austria v Germany (C-591/17) concerning the German road toll plan? Besides that, not only in cases like the Belgian one, some other Member States could be interested in bringing the appeal as well, no matter on which side.
On the other hand, dividing the preliminary ruling cases between the Court of Justice and the General Court could mean biting off more than one can chew and thus could cause more harm than good.
The formal criterion would be simple and easy to apply, but is it justified? The idea probably is that the most important issues coming from the top courts should be dealt with by the Court of Justice, while the General Court would handle the daily business of the lower instances. However, the origin of the preliminary reference guarantees neither the importance of the issue of law, nor the quality. In other words, even references from lower domestic instances result in landmark judgments. Inversely, references from top national courts are also decided by Article 99 orders or even rejected as inadmissible.
The substantive criteria raise even more questions. Here are at least some of them:
To begin with, what would happen to cases covering more than one area? As an example, one reference can easily include both – highly technical questions from one area and questions of principle and thus constitutional importance, either from a totally different field or simply of a cross-cutting character. Who should deal with such a case – the lower court with the necessary expertise and memory of jurisprudence on the technical issues or the higher court having the utmost authority to deal with highly sensitive fundamental points?
Next, what about the assignment to one of the two EU courts in practice? Who would decide which reference goes to which court? The division of competence would be legally binding. Still, someone would have to determine the competence regarding every preliminary reference made, be it on the sending or receiving side. In other words, someone has either to write the correct address on the envelope or to put the file in the right tray.
It could be left to the senders, meaning the national courts, with possible negative consequences. They could feel the need to assess the competence and to identify the right addressee as an additional hurdle. Some of them could be even discouraged from using the tool. Others may try to target the right (in their view probably the higher) from the two courts through deliberately asking questions within the area of its competence, be it of their own motion or due to the pressure from the parties. Lastly, they simply could miss, depending on how complex or vague the distribution rules and/or the national case would be.
Regarding the risk of diverging case law, it is true that Article 256(3) TFEU provides for a safety net, but both possibilities are not without their pitfalls. The review mechanism, the so-called réexamen, is supposed to be employed only exceptionally, so corrections on a regular basis cannot be expected. On the other hand, the Court of Justice would still have to check each preliminary ruling of the General Court, looking for serious risks for the unity or consistency of EU law. It had already conducted a similar exercise with the General Court’s appeal decisions in staff cases during the existence of the Civil Service Tribunal. However, this experience might be worthless to the extent that the preliminary ruling procedure differs from contentious cases. In reverse, the functioning of the mechanism required, and would require, its resources on the part of the Court of Justice, here probably even more due to a higher case number, and was even criticised in the past as cumbersome and time-consuming. Finally, the actual stepping-in of the Court of Justice would after all double the work and prolong the proceedings. The same goes for the second safeguard, namely the possibility for the General Court to deliberately refer important cases to the Court of Justice.
To conclude, the actual distribution of cases between the General Court and the Court of Justice may not be simple, but it is clear, and some stakeholders do not have to think of it at all. The system is based on the legal basis of the proceedings. The exceptions (and the counter-exceptions) concerning direct actions are foreseen for specific parties and legal acts based upon specific legal bases. Identifying the competent court requires a bit of effort, but almost exclusively from Member States and EU institutions. In fact, neither the national courts nor natural or legal persons, or rather their lawyers, need to rack their brains over where to submit their reference or first instance action, leaving aside extremely specific cases like Rimšēvičs v Latvia (C-202/18).
The clarity of the existing system would be gone if splitting up the preliminary ruling procedures between the Court of Justice and the General Court depended on material criteria. Grey zones would pull off a victory. Some safeguards may make it work and to some extent, it may be just a matter of habit, but it would without any doubt require significant effort and resources. The drawbacks thus, for me and for now, seem to outweigh the benefits, but I happily subscribe to Henriikka Leppo’s call for brainstorming. Let us then see what the CJEU and the legislator will make of it.
Michal Kianička served as a member of the Slovak EU litigation team from 2010 to 2020.