The General Court’s New Dawn
It is ironic that only two days after celebrating its thirtieth anniversary, the General Court was radically rebooted and transformed into quite a different jurisdiction. On Thursday 26 of September, with the entry of office of fourteen new judges, the appointment of a new President and Vice-President, the enactment of new procedural arrangements and the imminent exit of the UK, quite a lot happened to the General Court. And it is not just another renewal of judges. It is closer to a new dawn and the birth of an era.
Any direct witness of the pre-2004 Court of Justice, before the arrival of ten new judges from new Member States, can confirm how the Institution was radically changed. It was not because the judges came from different legal traditions, it was the sheer size of the enlargement. The Court was almost doubled and its internal workings, esprit de corps, family-style relations and close partnerships among staff were changed forever. As a current judge who worked as a référendaire in the pre-enlargement Court once told me, “we used to be a family, but now we are a factory”.
Now fast-forward to 2019 and look at the General Court, having doubled its size, restructured the cabinets, introduced new internal rules and created specialized chambers. Furthermore, the General Court is now a banking and finance jurisdiction after the creation of a Banking Union, with review powers over supervisory acts of the ECB, resolution procedures and financial regulation. Competition and state aid, plus staff cases, once the traditional domain of the General Court, are parcels of a much richer tapestry of cases being regularly dealt with at the lower Luxembourg court.
The arrival of twenty-seven new judges is, of course, the most radical of changes. However, looking at the features and parcours of the new arrivals, some interesting novelties deserve attention. For the first time, all new judges at the General Court (almost three-quarters of them) have been appointed after being reviewed by the 255 TFEU committee. The change is not only in the sheer size, it is also in the process, and it is stunning to see the results. The first remarkable feature is the age of many of the new judges. The standard average age of a judge at the General Court has lowered considerably, with a large number of judges in their late thirties and early forties. Also, it is striking how the degree of specialization in EU law has improved, and that is, of course, the result of a menacing 255 committee, always ready to strike when a candidate didn’t show sufficient EU credentials. In its thirty-year long history, the General Court has never had so many leading experts in EU law, starting with its new President and ending with last week’s arrivals of highly qualified EU lawyers like Roberto Mastroianni, José Martín y Pérez de Nanclares or Christoph Laitenberger, to name a few.
This is a General Court that is probably more likely to take some risks. A younger General Court with a large number of highly qualified EU lawyers, guided by a persuasive President, is probably more willing to interpret EU law in creative but realistic ways that help the case-law move forward. The fear of being reviewed on appeal will decrease in a self-confident General Court that can rely on high levels of in-house talent. Judgments that in the good old days looked like acts of unforgivable rebellion (remember Jégo-Quéré, or Kadi I and II?), could now be the result of a court willing to explore all the available routes to a case, not a jurisdiction trying to second-guess what the Court of Justice would do. An explorative General Court is good news for parties, litigants and for the EU judicial system overall, as long as it is allowed to play that part and not become frustrated in the process.
And of course, there is Brexit. The new General Court begins its task at the same time that the UK is about to depart the EU. They may look like two very different worlds, but Brexit will have an impact on the General Court’s identity, just like UK lawyers contributed into fleshing the General Court into the jurisdiction it became in the nineties. Although UK barristers will continue to practice through their newly acquired Belgian and Irish bar memberships, the waning influence of the UK will be deeply (and sadly) felt. Ireland will still provide fresh common law air into the works of the General Court, but missing the UK will be a tremendous loss, particularly in a court that enjoyed holding lively hearings, much factual analysis, in-depth economic reflection and pragmatic solutions to complex legal issues. The loss of British judges, British référendaires and British barristers is a sad event that will probably scar the General Court for years to come.
But overall, it seems as if the General Court is about to start a new era with all the necessary tools to become a sophisticated machinery able to deliver hundreds of judgments at a reasonable speed, tackle complex cases wisely and allow the Court of Justice to review on appeal only a limited number of decisions. For the new filtering mechanism of appeals at the Court of Justice to function correctly, Europe’s top court must rely on a highly competent General Court doing an immaculate job at almost all times. A selective appeal on points of law, as the one introduced after the latest reform of the Statute, requires a flawless General Court, or at least an almost flawless court.
Of course, there is also a chance that it all goes wrong. The Court of Justice could overreact and frustrate the General Court’s attempts to explore its new talents. An overcrowded court could result in paralysis if not adequately managed. Case numbers could decrease and leave the General Court unproductive and with little to do. Member States may conclude that a fifty-four-judge jurisdiction is just too expensive for the tax-payer to bear. The fact that a new General Court has come to life does not mean that it will be a happy ride. The risk of catastrophic failure is just as high as the chances of success. It will depend on the General Court’s ability to master its new tools and resources, but also on external observers and players and their capacity to accept and give the new General Court the chance it rightly deserves.