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Revised transcript of evidence taken before
The Select Committee on the European Union
Justice and Institutions Sub-Committee E
Inquiry on
WORKLOAD OF THE COURT OF JUSTICE OF THE EUROPEAN UNION
Evidence Session No. 1. Heard in Public. Questions 1 - 35
WEDNESDAY 13 OCTOBER 2010
4 pm
Witness: Professor Anthony Arnull
Memorandum by Professor Anthony Arnull, Barber Professor of Jurisprudence, University of Birmingham
Trends in the workload of the Court of Justice of the European Union 1. Legend has it that the arrival at the Court of Justice of the first reference for a preliminary ruling1 was greeted with the popping of champagne corks. Times have changed. The Court’s concern now is not with where its next case is coming from, but how it is going to cope with its seemingly ever‐increasing workload. While its situation is not as serious as that of the European Court of Human Rights,2 the scope of the European Union’s activities and its avowed commitment to the rule of law3 make it a cause for serious concern. 2. The Single European Act of 1986 saw the first steps to increase the capacity of the Union’s judicial system (or “judicial architecture”). That Act made provision for the General Court (then the Court of First Instance), formally established in 1988, to be attached to the Court of Justice. The growth in the workload of the Court of Justice was causing two related
1 Case 13/61 Bosch v van Rijn [1962] ECR 45, referred in 1961. 2 See the declaration issued at Interlaken, Switzerland, on 19 February 2010 by the Member States of the Council of Europe. 3 See Art 2 TEU.
problems. One was delay. In 1975, it took the Court on average six months to respond to a request for a preliminary ruling and nine months to deal with a direct action. By 1988, those figures had risen to 18 months and 24 months respectively. The concomitant pressure on the Court to deal with cases as quickly as possible was hampering its ability to look closely into their factual background. 3. The General Court, which began hearing cases at the end of October 1989, was intended to deal with both problems by relieving the pressure on the Court of Justice and creating a specialised fact‐finding tribunal with particular expertise in cases concerning the economic effects of complex factual situations. To that end it was given extensive investigatory powers in its Rules of Procedure. The Treaties provided that the judgments of the General Court were to be subject to appeal to the Court of Justice, but only on points of law. On issues of fact the General Court’s judgments would therefore be final. 4. Since its establishment, the jurisdiction of the General Court has been progressively extended. The default rule now4 is that it has jurisdiction in certain specified types of direct action unless they are reserved to the Court of Justice in the Statute or they have been assigned to a specialised court (see para 7). The Statute may also provide for the General Court to have jurisdiction in other types of case. The relevant provisions of the Statute can be amended by the European Parliament and the Council acting jointly under the ordinary legislative procedure. A Treaty change is not required. 5. At present, the following proceedings are reserved to the Court of Justice: (a) actions for annulment and failure to act brought by Member States against all acts or failures to act of the Council and the European Parliament acting jointly, all acts or failures to act of the European Parliament, most acts or failures to act of the Council and and a small category of acts or failures to act of the Commission; (b) actions for annulment and failure to act brought by an institution against the European Parliament, the Council, both those institutions acting jointly, the Commission and the European Central Bank;5 (c) infringement actions against Member States; and (d) references for preliminary rulings. Any of these cases could in principle be transferred to the General Court by changing the Statute. This requires the initiative to be taken by either the Court or the Commission.6 6. The growth in the jurisdiction of the General Court reflects the esteem in which it is held. The number of appeals to the Court of Justice against its decisions is relatively low (26% in 2009) and relatively few of those that are brought are successful (15 out of 104 in 2009). However, the expansion of its jurisdiction meant that it was soon afflicted by workload problems of its own. Indeed, it has occasionally been criticised by the Court of Justice for failing to complete proceedings within a reasonable time.7 7. The Member States therefore made provision at Nice for specialised courts (then known as judicial panels) to be “attached” to the General Court.8 Their function would be “to hear and determine at first instance certain classes of action or proceeding brought in specific areas.”9 The decisions of specialised courts would be subject to a right of appeal to the General Court on points of law and also, where the decision establishing them so provided, on questions of fact. Decisions of the General Court in such cases would in turn
4 See Art 256(1) TFEU. 5 See Art 51 of the Statute. 6 See Art 281 TFEU. 7 See Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417 and Case C-385/07 P Der Grüne Punkt v Commission, judgment of 16 July 2009. 8 See Art 220 EC. 9 See Art 225a EC.
“exceptionally be subject to review by the Court of Justice…where there is a serious risk of the unity or consistency of Community law being affected.”10 The first specialised court, the European Union Civil Service Tribunal (CST), was created in 2004 to deal with staff cases, which had previously represented a significant proportion of the General Court’s case load. The CST assumed jurisdiction in December 2005, when 118 pending cases were transferred to it by the General Court. No further specialised courts have yet been established.
The time taken to deal with cases
8. Judicial statistics relating to the Court of Justice of the European Union are published each year on its web site. These show that the number of cases pending before the Court of Justice in 2009 was, at 741, only one higher than in 2005. Moreover, the average duration of proceedings over that five‐year period fell, as the following table shows. (The figures are expressed in months and tenths of months.) It is too soon to say whether or not 2009 marks the beginning of an upward trend for references and direct actions. 2005 2006 2007 2008 2009 References 20.4 19.8 19.3 16.8 17.1Direct actions
21.3 20.0 18.2 16.9 17.1
Appeals 20.9 17.8 17.8 18.4 15.4 9. While the time taken by the Court of Justice to deal with direct actions should not be ignored, it is the time taken to deal with appeals and particularly references for preliminary rulings which is of special concern. In both types of proceeding, the time taken by the Court of Justice has to be added to the time taken by a case at earlier stages in the procedure. With references, too much delay in Luxembourg can discourage national courts (who may be influenced by the attitude of the parties) from using a procedure which the Court of Justice has described as “the veritable cornerstone of the operation of the internal market.” 10. In the General Court, the number of pending cases rose from 1,033 in 2005 to 1,191 in 2009. With the exception of intellectual property cases (mainly challenges to decisions of the OHIM Boards of Appeal under the Union trade mark regulation), the average duration of proceedings in the General Court also rose over that period, as the following table shows.
2005 2006 2007 2008 2009 Intellectual property
21.1 21.8 24.5 20.4 20.1
Appeals 7.1 16.1 16.1Other actions
25.6 27.8 29.5 26.0 33.1
11. The figures for staff cases have been omitted from the table above because they are now heard in the first instance by the CST. The category “other actions” consists mostly of
10 The first such case was Case C-197/09 RX-II M v European Medicines Agency, judgment of 17 December 2009.
annulment actions, but it also includes a not insignificant group of “special forms of procedure” (taxation of costs, legal aid, rectification of judgments and the like). 12. The number of cases pending before the CST rose from 130 in 2005 (its first year of operation) to a peak of 235 in 2007 before falling back to 175 in 2009. The average duration of proceedings in 2009 for new cases brought before the CST (i.e. not including cases initially brought before the General Court) was 17.7 months. It is probably too soon to identify any significant trends here. Possible measures for improving the speed with which cases are handled 13. The above figures suggest that, of the three constituent parts of the Court of Justice of the European Union, it is the General Court which is currently under the greatest pressure of work. That pressure may be exacerbated by new types of case made possible by the Treaty of Lisbon which fall within the jurisdiction of the General Court. They include: (a) proceedings for annulment and failure to act brought against the European Council and bodies, offices and agencies of the Union; and (b) proceedings for annulment brought by the Committee of the Regions. 14. If the Member States were so minded, this could be tackled in two ways. Neither would require an amendment to the Treaties, but both would have budgetary implications. (a) The General Court currently consists of 27 Judges, one per Member State. However, Article 19 TEU envisages that it might comprise more Judges than there are Member States. This means that additional Judges could be created to expand the capacity of the General Court. This would require an amendment to the Statute. (b) It would also be possible for new specialised courts to be established. This is done by regulation adopted under the ordinary legislative procedure. The process would have to be initiated by either the Court of Justice or the Commission.11 Both the present and the previous Presidents of the General Court have asked for this step to be taken to help deal with intellectual property cases. 15. The workload of the Court of Justice is likely to be affected in the coming years by increasing familiarity with Union law in the Member States which acceded in 2004 and 2007. The year 2009 was the first in which references were made by courts in all 12 of the States concerned. It may be anticipated that this process will gather momentum. The Treaty of Lisbon is also likely to have a significant effect on the workload of the Court of Justice, perhaps more so than on that of the General Court. The attribution of binding force to the Charter of Fundamental Rights12 and, in due course, Union accession to the European Convention on Human Rights13 can be expected to increase the volume of challenges to national measures giving effect to Union law on the ground that such rights have been infringed. The extension of the jurisdiction of the Court of Justice over the so‐called Area of Freedom, Security and Justice (AFSJ) also has major implications for its workload. 16. The provisions on the AFSJ used to be split between Title IV of Part Three of the EC Treaty and Title VI (the so‐called third pillar) of the TEU. The Court’s jurisdiction over both Titles was limited. The official reason for this was to shield it from the number of cases the AFSJ was thought likely to generate. At Lisbon, the provisions on the AFSJ were expanded and brought together in Title V of Part Three of the TFEU and made subject almost entirely to the classic powers of the Court of Justice. These provisions may in time generate
11 Art 257 TFEU. 12 See Art 6(1) TEU. 13 See Art 6(2) TEU.
significant volumes of litigation in the national courts in particular in areas like asylum, immigration and judicial cooperation in criminal matters. Many of those cases could eventually be referred to the Court of Justice. Some will raise questions as to the effect of the Charter of Fundamental Rights. Some will need to be dealt with urgently. Indeed, the TFEU requires this to be done in cases involving people in custody.14 17. This will not happen immediately. During a transitional period of five years, the jurisdiction of the Court of Justice over third pillar acts adopted before the Lisbon Treaty entered into force will remain as it was pre‐Lisbon.15 But the problem will in due course have to be confronted. There seems little further that could be done to expedite references. The Court’s Rules of Procedure already contain various provisions for truncating the process in straightforward or urgent cases. The most drastic is Article 104b, which was introduced in 2008 and applies only to references relating to the AFSJ. It reduces the class of those who are entitled to submit written observations (excluding Member States other than the one from which the reference has been made), normally requires such observations to be submitted within exceptionally short deadlines and provides for the written part of the procedure to be omitted entirely “in cases of extreme urgency”. It also limits the involvement of the Advocate General, who is heard but does not deliver a formal Opinion. 18. Because it is relatively obvious how the capacity of the General Court could be increased, references therefore represent the real bottleneck. A way needs to be found of reducing the burden they impose on the Court of Justice without damaging the procedure itself or the confidence which national courts have in it. The key is to find a way of sharing with the General Court the burden they currently impose on the Court of Justice. 19. Article 256(3) TFEU permits the General Court to be given jurisdiction to give preliminary rulings “in specific areas laid down by the Statute.” This in part reflects the principle of the lawful judge (juge légal or gesetzlicher Richter), according to which the identity of the court having jurisdiction in a case must be known in advance. However, many references cut across several areas of Union law. Even if “specific areas” were defined, a case falling predominantly within one of them might still go to the Court of Justice because it touched on an area not specified in the Statute. This possibility might even influence the questions asked by national courts. Another difficulty is that, even if a case were concerned only with one area of Union law, that would not give any reliable indication of its difficulty or importance. A third problem is that the Treaty rules out allocating references according to the status of the referring court. Admittedly, this is no guide to the importance of a case either. Moreover, cases which are referred by top national courts simply because the Treaty requires them to do so may prove more straightforward than cases referred by lower courts. However, such a criterion might be thought justifiable on grounds of judicial comity: some top national courts might avoid using the procedure if references they made were not dealt with by the Court of Justice itself. A further constraint is that, while the Treaty provides for the General Court to forward important references directly to the Court of Justice and for the Court of Justice exceptionally to review preliminary rulings given by the General Court,16 it does not permit the Court of Justice itself to call in at the outset a reference falling in principle within the jurisdiction of the General Court.
14 See Art 267 TFEU, fourth paragraph. 15 The UK has in principle opted out of the AFSJ. Moreover, it may refuse to accept the extension of the powers of the Court to pre‐Lisbon third pillar acts. If it does this, such acts will cease to apply to it when the transitional period expires. 16 See Art 256(3) TFEU.
20. A renewed effort needs to be made to crack this nut. A treaty amendment should not be ruled out. Although the Member States made it clear in December 2007 that they expected “no change in the foreseeable future” to the Lisbon settlement, they had by the time the new Treaty entered into force accepted two changes17 and later agreed to a third.18 The Treaty of Nice showed that technical changes to the treaty provisions on the Union Courts may prove uncontroversial at an IGC once agreed at the level of officials. The limited extent of the amendments necessary would probably mean that a Convention would not need to be convened.19 21. Nothing should be done that might undermine the relationship the Court of Justice has worked so hard to establish with the national courts or to discourage them from making references in appropriate cases. However, there should be an acceptance that the General Court can safely be permitted to deal with references raising important questions. Consideration should be given to amending the first paragraph of Article 256(3) TFEU so that it permits references to be transferred to the General Court “under the conditions laid down in the Statute.” This would leave the details to be worked out later and make it possible for the cases affected to be defined by reference to their sub‐matter or the identity of the referring court. 22. Consideration might also be given to permitting the Court of Justice to operate some form of filtering system, either to call in references which fall in principle within the jurisdiction of the General Court or to transfer to the General Court references which fall in principle within the jurisdiction of the Court of Justice. Such a mechanism could be used after an initial appraisal of the difficulty or importance of a case or to coordinate the response to references raising similar issues made at more or less the same time by different national courts. Any objections to such a reform based on the principle of the lawful judge should not be insurmountable. That principle is not universally recognised in the Member States. In any event, a reform of this nature would not seem to represent any more of a departure from it than the existing provision permitting the General Court to forward significant references directly to the Court of Justice. Moreover, under Article 19 TEU, the Court of Justice and the General Court are now simply constituent parts of a single institution, the Court of Justice of the European Union. 23. Another possibility would be to permit the Council, the Commission or a Member State to request the Court of Justice to rule on provisions interpreted by the General Court, in response to references from national courts, in a way which the party making the request considered inconsistent with Union law or the case law of the Court of Justice. A precedent for such a procedure is provided by the now‐defunct Article 68(3) EC, which was itself based on Article 4 of the Protocol on the interpretation by the Court of Justice of the Brussels Convention. In both cases, the retrospective effect of the ruling of the Court of Justice was limited.
17 See the Decision of the Heads of State or Government on the concerns of the Irish people on the Treaty of Lisbon (June 2009) and the agreement that the protocol on the effect on the UK and Poland of the Charter of Fundamental Rights should be extended to the Czech Republic (October 2009), both of which will be addressed when the next accession treaty is signed. 18 An increase in the size of the European Parliament for the remainder of the 2009-14 term, consequent on the entry into force of the Treaty of Lisbon, was approved at a brief IGC dealt with at Permanent Representative level on 23 June 2010. The increase must be ratified by the Member States in order to take effect: see Art 48(4) TEU. Provision for the UK to do so is to be made in the forthcoming European Union Bill. 19 A simple majority decision of the European Council to that effect and the consent of the European Parliament would be needed: see Art 48(3) TEU.
24. In order for changes of this sort to be made, an amendment of the third paragraph of Article 256(3) TFEU would seem necessary. Such an amendment could either set out the details of the new mechanism(s) being introduced or simply provide for the details to be laid down in the Statute. If the latter course were chosen, the amendment could be couched in very general terms. 25. Finally, consideration might be given to conferring on the General Court jurisdiction in infringement actions against Member States. These accounted for 142 of the 143 direct actions brought before the Court of Justice in 2009 and are not inherently difficult. Such a change would merely require an amendment to the Statute. A potential obstacle is that this would probably involve accepting that the General Court should have the power to impose financial penalties on defaulting Member States under Article 260(2) and (3) TFEU. 23 September 2010 This evidence is submitted on an individual basis.
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Members present:
Lord Bowness (Chairman) Lord Boyd of Duncansby Lord Dykes Lord Kerr of Kinlochard Lord Maclennan of Rogart The Earl of Sandwich Lord Temple-Morris Lord Wright of Richmond
________________
Examination of Witnesses
Witness: Professor Anthony Arnull, Barber Professor of Jurisprudence, University of
Birmingham
Q1 Chairman: Professor Arnull, thank you very much indeed for coming to help us with
this inquiry that we are conducting into the European Court of Justice. We are very grateful.
Can I just say for the record that members of the Committee with relevant interests will
declare them, and, indeed, that they are set out in the Register of Lords’ Interests? Speaking
for myself, I have nothing beyond what is in the register of interests. As you know, this
session is on the record. It is being webcast live and will be accessible on the parliamentary
website. We will of course send you a transcript of the evidence for you to check and
correct, and it will be put on the public record and on the website straightaway. So first, may
I ask you, again for the record, whether you would state your name and official title, and if
you would like to make an opening statement, to do so?
Professor Arnull: Thank you, My Lord Chairman. My name is Anthony Arnull and I am
Barber Professor of Jurisprudence at the University of Birmingham. I do not wish to make a
statement by way of opening remarks, but I would like to indicate that I should like to say a
word or two about the possibility of filtering appeals from the General Court to the Court
2
of Justice at some point. It is something I did not deal with in my written evidence, but I
think it may crop up in response to questions.
Q2 Chairman: Fine. I have made a note of that, and if it does not crop up during
questions, we will make sure that it does crop up before you leave. When we had another
discussion on this matter, it was pointed out to us that there is a balance to be struck
between speed of delivery in the courts and the quality of the work of the Court. How do
you see that at the present time? How is that balance struck at present in the existing
Court? Is it right or should it be different?
Professor Arnull: Of course I entirely agree that there is a balance to be struck. There are
two extreme ends of the spectrum, if you like. You have the requirement in the European
Convention on Human Rights that the courts must provide a fair trial within a reasonable
period—that is one extreme—but it is also necessary for courts to deliver judgments in
which users of the courts can have confidence. As you suggest, striking the right balance
between speed and quality is a difficult thing to do.
There are three reasons I would give for suggesting that perhaps the balance is not quite
satisfactory in Luxembourg at the moment. The General Court has, on a couple of
occasions, been found by the Court of Justice not to have delivered decisions within a
reasonable time. The time taken by the ECJ to respond to references from national courts is
almost universally regarded as too long, and there is growing criticism and a sense of
growing dissatisfaction with the quality of some of the judgments given by the European
Court of Justice. So those factors do suggest that perhaps the balance is not being struck in
quite the right place.
Q3 Chairman: Do you think that criticisms of the quality of the judgments arise because
presumably people feel that they are delivered too quickly or because not enough time is
taken?
3
Professor Arnull: Yes, I think those who take this view would say that the reasoning of the
Court is sometimes not set out in sufficient detail to explain why significant new departures
have been taken and to explain to the Court’s interlocutors what the implications of those
new developments might be in future cases.
Q4 Lord Kerr of Kinlochard: Why do you think that is? It seems implausible that it is
just that they are moving too fast. Is it that not enough of the wisdom in the Court is being
applied to a particular case? Is it that the judge from the member state where the case has
arisen may no longer be among those involved in preparing the judgment of the Court? Is it
that the Court is becoming factionalised in order to maintain a rapid pace?
Professor Arnull: I should make it clear perhaps that I am not certain how much I subscribe
to this view, but it is a view that one hears and I think there might be something in it. I do
not think that it is to do necessarily with the absence of a judge of a particular nationality in
the formation of judgment. I think it may be to do with the way in which cases are handled. I
think what happens in the Court of Justice is that judges need to work up a case at several
different junctures. They will work it up for one purpose—say, the administrative meeting—
and then they will drop it and go and work on other cases. Then they will have to work it up
again for the hearing, and then they drop it while the Advocate-General goes off and
prepares his opinion. Then, when the opinion is delivered, they work it up again. That
fractured process of considering the case may have an impact on the quality of the outcome.
From the point of view of the pressure of work, it may be that they no longer feel that—as
David Edward put it in an article some years ago—that each judgment is the product of
mature reflection. They are constantly having to examine quite difficult issues and there is
pressure on them to come to a decision quickly and then to express their decision in a
concise way. As you know, there are no dissenting judgments in the Court. My own view is
that that is a good thing actually, but there are people who argue that there should be
4
dissenting judgments. The argument of those who advocate dissenting judgments is that if
you do not allow dissent, it increases the pressure on the Court to produce a text that
accommodates all the different strands of opinion, and the result may be a line of reasoning
that is not as clear and single-minded as it would be if you were only trying to encapsulate
the view of the majority.
Q5 Chairman: Can I just follow up on the point about the quality of judgments? One of
the submissions that we received queries the use of chambers of three judges. It talks about
putting a lot of power in the hands of individual judges, and that there is less room for wider
deliberation. Is that a factor?
Professor Arnull: I would think that the smaller the chamber, in fact, the clearer the
judgment might be, because the possibility of there being diverse strands of opinion that you
need to bring together in a single judgment is reduced the fewer the judges there are.
Three-judge chambers tend to be used for the simpler cases. If you required every case to
be heard by a five-judge chamber or larger, that would exacerbate the problem of the time
taken to dispose of cases and issues of workload and delay. I do not see three-judge
chambers as inherently problematic. It is undoubtedly the case that some judges will have
more influence within the Court than others. This is to do with the personal dynamics of the
Court, and possibly the fact that the Court works in a language that will be the first language
of only a limited number of members. And so if you have a powerful personality on the
Court and one of his or her first languages is French, they may be able to exercise more
influence than somebody who is less proficient in French. We may come on to languages
later. I do not see a solution to that, given that the Court needs to have a working language;
it has to be something.
Q6 Lord Maclennan of Rogart: Professor Arnull, it has been suggested to us that one
way of reducing the burden on the Court might be to enable it to act more like the United
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States Supreme Court by avoiding highly technical, narrow issues such as the interpretation
of VAT directive references, and by filtering out cases that it does not regard as necessary to
ensure the appropriate level of uniformity of EU law. In your submission, you addressed the
question of possible filtering out. I wondered whether you would like to expand on what
you said. We are dealing with something slightly different.
Professor Arnull: Yes, certainly. There are two possible filters that could be considered.
One would be the sort of filter that you are talking about, which is to do with references
from national courts. In the questions I was sent, there was a reference to cases on VAT
directives as an example of the sort of case that might be filtered out. The type of filter I was
alluding to at the outset was a filter on appeals to the European Court of Justice from the
General Court.
I will deal first with references. I am pretty clear in my own mind that a filter on references
from national courts would be undesirable, because it would have the effect of discouraging
national courts from using the preliminary rulings procedure, which has played a crucial part
in the development of the Union’s legal order. If we take VAT cases, VAT cases may appear
technical—they certainly appear technical to me. Nevertheless, they are of considerable
fiscal and commercial importance. They have, in the past, raised important issues about the
effect of directives that are applicable more broadly to cases before the court. It would not
be true to say that because they are technical, they can be treated as less important than
other cases that may appear to be less technical. Once the national court has gone to the
trouble of making a reference to the ECJ, for the ECJ then to look at the case and say,
“Sorry, this case is a bit technical”, or, “I don’t think it's very important, go away and decide
it yourself”, would give out entirely the wrong signal and might discourage courts from
making references in less technical cases in future. My preference for references, as I made
clear in my written evidence, would be to involve the General Court and it would be for
6
debate whether VAT cases were a suitable category of case to assign to the General Court
for responding to references.
The type of filter that I mentioned at the outset would be a filter on appeals to the Court of
Justice from the General Court. There is a significant number of such appeals. They are
generally unsuccessful, and I think there is a case for introducing a requirement that
permission should be sought either from the General Court or from the Court of Justice
before an appeal is allowed to proceed. That could be done by means of an amendment to
the Statute. It would be out of keeping with some legal traditions in which the possibility of
bringing an appeal is regarded as a subjective right of the parties rather than something that
ought to be the subject of the exercise of discretion by a court. I can see that objection
being raised, but to people who have been brought up in the common law tradition, where
leave to appeal is widely accepted, it does not seem problematic in principle.
Q7 Lord Maclennan of Rogart: I will respond quickly on the first point you answered:
that no issue is too small to be considered by the Court if the national court wishes it to be
handled in that way.
Professor Arnull: I think it would be lovely if we could devise a test that enabled you to tell
at the outset whether an issue was a small one. One of the lessons of the case law of the
Court of Justice is that apparently small issues can actually raise issues of profound
importance. We have all heard of the cases of Costa v ENEL and Van Gend en Loos, which
might have appeared at the outset to be small issues, and of course they gave rise to issues
about direct effect and primacy. I think that it is still possible. I entirely agree that if we could
identify the small issues and set them apart, then that would be very convenient, but I am
not confident that it can be done.
Q8 Lord Temple-Morris: I would just like to enlarge this a little bit, if I may, because
there are so many issues that we are dealing with of a very specific nature, and in reality a
7
very small part of the whole. When you look at the whole here, it seems to me that the
more one sees—certainly since this committee has come on to the subject—of the dreadful
difficulties within the European Union of conducting a Union without a form of sovereignty
that can drive things through. That is what I really wanted to ask you. It seems to me that
the affairs we are discussing are not going to exactly be riveting when it comes to the heads
of state meeting in council. Indeed much of it is going to be done by officials. Where is the
pushing power here? How can one get something done? I mean, if we write a wonderful
report, it will be taken into consideration together with all sorts of others. David Edward
has written a lot of extremely good stuff about this—it is all there—and you yourself, too.
How do we get about it? What do we do? How do we move somebody? How do we get
them interested in a body, incidentally, that is so disparate in its nationalities and its
languages and does not even control its own procedures?
Professor Arnull: You put your finger on some serious problems. The Court did have some
success in forcing issues surrounding what we call judicial architecture on to the agenda
before the Nice Treaty. The initiative there was taken partly by the Court itself, which
published an influential discussion document, and partly by the Commission, which set up a
working group under the chairmanship of a former president of the court, Judge Due. Those
two documents did seem to produce an effect. There were major reforms to the judicial
architecture of the Union agreed at Nice—not, apparently, at the level of heads of state and
government, but at the level of officials, who managed to agree a set of changes which the
heads of state and government were willing to agree without further discussion. Now, in a
sense, that is an encouraging sign because it would suggest the possibility of including some
permissive changes to the treaties to permit further reform, and it might be realistic to
envisage that that could be done without requiring heads of state and government to
8
immerse themselves in an issue which they certainly do see as less politically important than
other ones.
Q9 Lord Boyd of Duncansby: In your reply to Lord Maclennan you reiterated what you
set out in paragraph 21 of your evidence in relation to not discouraging national courts to
make references to the ECJ, but you put it, really, in the context of undermining the
relationship between the Court of Justice and the national court. Perhaps I can put a counter
argument to you just for your comment. If one of the objectives is to try and ease the
pressure, to some extent at least, on the European Court of Justice, is one of the ways
perhaps to say, first of all, that European law has been established over the years and is now
more fixed than it certainly was when the Community was first established; and, secondly,
that national courts themselves are more used to dealing with European law; and that there
might be a case for saying to national courts, “Actually you should take more responsibility
for deciding these cases, and you do not need to come to the European Court of Justice on
a preliminary reference on the number of occasions that you do”? What is your reaction to
that?
Professor Arnull: I would have no objection at all to advice of an informal type encouraging
national courts, other than courts of last resort, to decide more questions of Community
law—Union law, as we should now say—for themselves, or encouraging them to exercise
restraint before making a reference to the Court of Justice. I think that in practice the delay
which a reference entails sometimes does cause them to think twice anyway. What I would
be less enthusiastic about would be the idea of enshrining that advice in some sort of formal
rule which might have the effect of discouraging the courts from making references when a
reference really needs to be made. It is true that some of the basic principles of Union law
are now well established, but Union law continues to expand. There are important issues
arising out of the Treaty of Lisbon to which we do not know quite what the answers are
9
going to be. The legal system is developing rapidly and there is going to be a need for
guidance from the ECJ on precisely what the implications of those developments are. Also, I
would not be comfortable with a system which distinguished between national courts
according to how long the member state in which they were situated had been a member.
We have a body of courts in 12 member states which were not in the Union before 2004.
We need a system which does not tell them something different from what courts in the
older member states are being told. It is also the case that, although the tentacles of Union
law are reaching more and more widely, in many national courts of general jurisdiction, even
in the older member states, points of Union law do not crop up that often. When they do
crop up, those courts need to feel that they can make a reference if they need help.
Q10 Lord Boyd of Duncansby: If I may follow that up, I understand what you are saying
and accept much of it, but it might be suggested that, in fact—certainly in common law
countries—we are well used to systems of getting leave or special leave to go to the higher
court through appeal or even bringing judicial review proceedings, where, in England, you
would require leave to do so. That is a short rehearsal of the points that might be made. If
one of the tests is whether Union law is acte clair, presumably there is a mechanism by which
a small panel of judges in the ECJ could decide, “This is something that we should deal with”,
or, “We think that actually the law is clear; it is for the national court now to go ahead and
apply it”.
Professor Arnull: I would say that the ECJ is not a superior court in the preliminary rulings
procedure. The ECJ is a partner with the national court in trying to find a solution to the
case which is compatible with the requirements of Union law. I repeat something that I said
earlier. The national court might go to the trouble of identifying a possible question but it
may not be feasible then to take that to the Court of Justice, even on an application for
leave, without setting the national legal background and the facts in which the question has
10
arisen—in the United Kingdom, in England anyway, it would involve consulting counsel for
the parties about what the question to the court should actually be. The question would
then to go to Luxembourg for some sort of legal hearing but the court might say, “Actually,
we think that the point is acte clair, or it is not important enough to trouble us with”. If that
happened, the next time that such a point arose, the national court might think, “We had a
pretty bad experience. It was quite an abrupt thing, a brusque thing, to be told that the
question which we had been struggling with did not merit the attention of the Court of
Justice”. That is why I am opposed to any sort of filter at that stage. I would rather involve
the General Court.
Q11 Lord Boyd of Duncansby: One very quick question. Would you make any
distinction between the court of last resort and other more junior courts, if that is the right
expression?
Professor Arnull: Well, the distinction is made by the Treaty, of course, because courts of
last resort have an obligation to refer. The obligation is qualified, as you indicated, in cases of
so-called acte clair. My own view is that the acte clair doctrine has certain dangers because it
enables national courts of last resort simply to ignore their obligation to refer by presenting
something as, or by persuading themselves that something is, acte clair when it actually might
not be. So there is a distinction and that is where I would draw it.
Q12 Chairman: While we are talking about references, in your written evidence you talk
about the problem of references and describe them as representing the real bottleneck. You
say, “A renewed effort needs to be made to crack this nut. A treaty amendment should not
be ruled out”. You may have touched on this in answer to an earlier question but, clearly,
major treaty amendments are not likely to be countenanced in the near future. Is this
something that you think could be done by the simplified procedure? Perhaps you could just
help us precisely with what the specific changes are that you would like to see.
11
Professor Arnull: Well, I think that I indicated some specific changes. What I am generally in
favour of is changes that don’t set out the detail of a reform to the structure in the Treaty
itself but which give a power to the institutions to introduce changes by means of an
alteration to the Statute. That is largely the technique which was used at Nice and the
advantage of course is the flexibility that it introduces. The disadvantage is that you are
giving a power to the institutions to make changes to the institutional structure of the Union
that do not require ratification by the member states. But I think, as a member of the
Committee suggested earlier, that the sorts of changes that we are talking about are largely
technical; they are not the stuff of great political controversy—for example, giving the
possibility to the Court to filter appeals from the General Court or giving the Court of
Justice a role in filtering references. If the General Court’s right to give preliminary rulings
were to be implemented, you might have a system where you identify some cases which
might go to the General Court on a reference and some which might go to the Court of
Justice. Now you might want a system where the Court of Justice looks at all references that
come in and says, “Actually this one, which in principle we ought to deal with, can safely go
to the General Court”, or conversely, “Actually it’s a case that’s gone to the General Court
and is in principle within the General Court’s jurisdiction, but we think we ought to deal
with it”. That might be something worth exploring. My suggestion is that it ought to be
possible for that type of almost case-management device to be introduced by means of an
amendment to the Statute, without the need to go through a treaty revision procedure. The
Lisbon Treaty has introduced a variety of different treaty amendment procedures, as you
know. This would need to be the second most elaborate of the treaty amendment
procedures. In other words, it would require ratification by the member states, but it would
not require a convention to be called.
12
Q13 Lord Wright of Richmond: You have probably answered my question, which is
whether there is always likely to be, from your understanding of the way the court works, at
least one challenger saying, “I’m sorry. I think that, although these sound perfectly sensible
proposals, they really will require amendment to the treaty”. That raises all sorts of very
difficult political questions in many countries, not excluding this one.
Professor Arnull: Yes, I think that some of the changes that I have suggested in my written
evidence would probably be incompatible with the Treaty as it is presently drafted. That is
why I suggest that a change might be needed. The idea of a general enabling clause is to make
it possible for the views of objectors to be heard in the debate on the substance but also to
make it possible for that debate to take place away from an intergovernmental conference
and in the Council or the European Parliament.
Q14 Earl Sandwich: Going back to the increasing workload, you touch on the need for a
new specialist tribunal, which a lot of people have mentioned. You mentioned it, but you do
not necessarily support it in your evidence, so could you expand on that? Do you think that
it would be limited to trademark appeals or should it be extended to intellectual property?
You mentioned the increasing number of cases in the area of freedom, justice and security.
How is the court going to look forward to dealing with that?
Professor Arnull: On the question of a new specialised court, I think that if what I am
suggesting were to materialise—that is, the involvement of the General Court in dealing with
preliminary rulings—one would have to do something about relieving the General Court of
some other area of its responsibility. Presidents of the General Court have suggested the
establishment of a specialised court to deal with intellectual property cases. In 2009, the
number of intellectual property cases brought before the General Court substantially
exceeded the number of staff cases brought before the Civil Service Tribunal. That has been
the case going back to 2007 and the gap between them is getting wider. It is pretty clear that
13
there would be enough work for a new specialised court if its jurisdiction were limited to
the intellectual property cases which the General Court currently handles. Of course, if one
were going to set one up, one would have to decide how many judges it would have. The
Civil Service Tribunal has seven. The number of judges in an intellectual property tribunal
would be a matter for debate, but, in principle and judging by the figures at the moment, I
think that there ought to be enough work for it if its jurisdiction were limited. Whether it
should have a wider intellectual property jurisdiction is questionable. It would not be
realistic at this stage to envisage that it might deal with preliminary rulings on intellectual
property cases in national courts even if it were possible to isolate the intellectual property
issues from cases which might raise other issues as well. The arrangements for the EU
patent, which are currently the subject of a request for an opinion from the Court of Justice,
do not envisage any role for a specialised court at the moment. That might be considered in
the future. I would be thinking in terms of a specialised court limited to the intellectual
property jurisdiction of the General Court, partly as a way of relieving pressure on the
general court and partly as a way of ensuring that those cases are dealt with by IP specialists.
Chairman: And Freedom, Security and Justice?
Professor Arnull: Indeed, thank you for reminding me. There is no doubt that the Area of
Freedom, Security and Justice is going to generate a significant body of new case law. That
case law will be difficult and important. It is going to raise issues which the Court of Justice
has not been used to dealing with in quite the same numbers as before, such as issues
involving individuals in difficult circumstances who may be in custody. There will be issues
about the effect of the Charter of Fundamental Rights. If the Union accedes to the ECHR,
the Court of Justice will be very keen to avoid being rapped over the knuckles by the
Strasbourg Court, so I think those cases will really have to stay with the Court of Justice.
The Court of Justice has an urgent preliminary rulings procedure which applies only to AFSJ
14
cases and which so far has enabled it to respond much more quickly than it would be able to
under the normal procedure. Of course, the Treaty will require it to respond quickly in
cases involving people in custody. I think that the AFSJ will pose a problem in terms of
workload for the Court but I do not see there being any other tribunal which would be
suitable for dealing with those cases.
Q15 Lord Wright of Richmond: Professor, you have referred already to the problem
of languages, particularly for those for whom French is not their first language. To what
extent does the use of French and the need to translate everything into French create
bottlenecks and is there some politically acceptable way in which you think these
bottlenecks could be reduced? I am sorry, I said politically acceptable; I mean legally
acceptable.
Professor Arnull: That is a nice distinction; let us just say “acceptable”. I think it is inevitable
that the Court will have a working language. There has to be a language that the Court can
conduct discussions in in which all its members are conversant, and for historical reasons
that language is French. Rumour has it that English is sometimes used in all discussions where
it is more convenient for the members of the formation of judgment to use English. There
may be a case for changing to English as the working language, but the consequence of doing
that would be similar; you would still have one language which some people spoke better
than others. There are practical difficulties with switching to English as well in that I am told
it is more difficult to find suitably qualified translators whose mother tongue is English than it
is to find suitably qualified translators whose mother tongue is French. There would also be
legal cultural implications. A report was published by a committee of the Assemblée
Nationale in France some years ago examining the declining use of French in Community
institutions. In relation to the Court of Justice, the report said that if the Court of Justice
started to draft judgments in English, the effect might be to make the judgments more like
15
the judgments of a common law court. Those who have been educated in the common law
system might welcome that, but not everybody has been educated in that system so some
might not welcome it. I do not say that would be a good thing or a bad thing; I am simply
suggesting that it might not be just a question of switching the language but might have
substantive implications which one might want to think about.
Q16 Lord Wright of Richmond: But in so far as the present system actually creates
bottlenecks, can you think of ways of reducing those bottlenecks?
Professor Arnull: Well, it is very difficult. National courts have to be able to make
references in their own languages. The judgments and the Advocates-General’s opinions
have to be available in all the languages. There have been reforms. I have no doubt that the
Court of Justice is very alive to this problem and has thought a lot about it. That was
particularly so in the run-up to the 2004 and 2007 enlargements. Things have been done. I
have noted down a couple of them. For example, national orders for reference are no
longer routinely translated into the official languages of all the member states as they used to
be. The judge rapporteur no longer produces a report where there is no hearing, as is quite
common. We have a form of selective publication now in the European Court Reports, but
the language regime of the Courts is politically sensitive. The language regime of the
proposed EU patent is politically sensitive and is holding the whole thing up. The languages
which the Court uses are important to its legitimacy, so I have no answers I am afraid, but it
is a problem, yes.
Chairman: Before you answer the second part of the question, I think that Lord Temple-
Morris wanted to pursue this point.
Q17 Lord Temple-Morris: I will restrict my question to this point, Lord Chairman. It
seems to me fantastic that one cannot make more progress than has been made.
Somewhere along the line, political sensitivities have got to be overcome. I come back to the
16
point that perhaps the political will is somewhat lacking. The extent of the problem that
David Edwards told us about in writing is incredible. Translation is required at five separate
stages of the procedure, and the case cannot formally proceed to the next stage until the
necessary translations have been completed. On average, translation consumes about seven
months of the total time taken to process a reference; one-third of the average total time. It
is not really good enough, is it? Do you think it is a goer that we are going to get some
change in this area, or should we concentrate perhaps on other parts of the procedure?
Professor Arnull: If the EU patent is anything to go by, it is not a goer.
Lord Temple-Morris: That is what I wanted to know.
Professor Arnull: My sense is that one could spend an enormous amount of energy trying to
get the language regime changed, with very little to show for it in the end. I have never been
personally involved in trying to manage the translation process. The Court has a head of
translation, who might be somebody worth speaking to about whether, given the languages
that the Court works in, there is a better way of managing the process. It is not clear that
we could reduce the number of languages at least at the stages of translating the Advocate-
General's opinions and the judgments, and of dealing with references from national courts.
There is at least a core of documents that will have to be available in all languages.
Q18 Lord Maclennan of Rogart: Further to your remark about the legal culture and
the interpretation of English as being the importation of common law, is that really a serious
point or is it just being bandied around by those who want to stick to French? We have had
to import into this country a kind of language that is not related to common-law, in treaties
and from the European Court of Human Rights.
Professor Arnull: I think there might actually be something in it. There is a distinctive style
that judgments in civil law courts adopt. They are sometimes very terse and are presented as
if they are leading inexorably to a conclusion. They are telling you what the law is, rather
17
than trying to persuade you of the rightness of the conclusion that they have come to. If the
judgments were written in English, there might be a move away from that terse, syllogistic
style towards the less formal, more free-flowing style – almost an advocate’s style - of a
common-law judgement. We in this country would probably welcome that, because we are
used to working with that sort of judgment. It might be a good thing for the Court of Justice,
but views may differ on that. I speak as someone trained in the common-law system. People
brought up in other systems will have their own views, but I think there might be something
in it.
Q19 Lord Dykes: You referred to not being sufficiently conversant in the managerial
aspects of this, and the practical reduction exercise that might be available. I hope you will
forgive an amateur question from a non-expert. You talked about the automaticity of the
translation system into all or most languages on a running basis. When particular cases come
forward, is it possible to get some kind of preliminary agreement from the direct parties to
the action or investigation on a limit on the number of languages? Can that not be done for a
particular item?
Professor Arnull: That might be possible for particular pleadings, but for the basic core that
I referred to, it is not a matter for the parties but a question of the public interest.
Lord Dykes: And the Administration.
Professor Arnull: Yes – and accessibility to the work of the court.
Chairman: Before Lord Wright asks his question, I will just check that Professor Arnull is
all right for time. We indicated that the session would last for about an hour. If we
endeavour to finish by 5.15 pm, would that be all right or would that cause you difficulty?
Professor Arnull: That would be fine.
Q20 Lord Wright of Richmond: I think we can deal with this question quickly because
you have already referred to it both in your written evidence and in what has been
18
discussed. The question is this: are there any obvious rule changes that would relieve the
pressure on either the Court of Justice or the General Court? This is probably the
opportunity for you to say anything more you want to about the filtering of appeals.
Professor Arnull: I do not think I want to say anything more about the filtering of appeals
unless I have not made clear the sort of system I had in mind. I am afraid I cannot think of
any obvious changes to the rules of procedure.
The rules of procedure have undergone some fairly radical changes in recent years, and I
have noted just a few of them. There are now expedited procedures for dealing with
virtually all types of proceeding—direct actions, appeals and references from national
courts—and the expedited procedures involve derogating from the procedural rules which
are normally applicable. That is a significant departure from earlier versions of the rules of
procedure where derogation, as opposed to giving priority, was not permitted. The Court
now has a significantly enlarged power to deal with references by reasoned order and it is
now possible for the hearing and even the opinion of the Advocate-General to be dispensed
with. So there have been quite radical changes to the rules of procedure. Whether any
obvious ones are left now, for myself, I doubt it.
Q21 Lord Wright of Richmond: In paragraph 23 of your paper you say that another
possibility would be to permit the Council, the Commission or a Member State to request
the Court of Justice to rule on provisions interpreted by the General Court. To what extent
would you regard that as an important change?
Professor Arnull: That would require a treaty change or would have to fall within an
enabling power which would permit it to be done by amendment to the Statute.
Lord Wright of Richmond: So it has not been able to push it forward.
Professor Arnull: There was such a power in the EC Treaty before it was amended at
Lisbon, so there is a precedent. The suggestion is that it is a way of allaying fears that the
19
General Court cannot be trusted with preliminary rulings. The idea is that if the General
Court had a preliminary rulings jurisdiction and delivered a decision or a series of decisions
which the Council, the Commission or a Member State felt was out of line, they could take
the point to the Court of Justice and ask it to rule. That would put the General Court right;
it would correct the case law. But it is more than just a procedural change.
Q22 Lord Dykes: On log jams and delays, I was concerned to see that there are
particular and repeated delays in competition and state aid cases. Are there obvious
solutions to this problem?
Professor Arnull: The short answer to that is no, there are no obvious changes.
Competition cases are often commercially important, and often factually and economically
complex. The Court of Justice used to be criticised for not scrutinising sufficiently closely
the Commission’s decisions. That was one of the reasons why the General Court was
established. The General Court has addressed the issue and does scrutinise Commission
decisions pretty closely. There have been some notable cases, particularly in the field of
merger control, where decisions of the Commission have been quashed. But, of course,
subjecting the decisions of the Commission to close scrutiny takes time.
There is an expedited procedure available to the General Court that it uses quite frequently
in competition cases, which can result in significant time saving. For example, cases might be
decided in less than a year instead of two, three or four years, but that procedure, which
involves simplified pleadings and greater emphasis on the oral hearing, is not suitable for the
more complex cases. It would be possible, I suppose, to envisage a specialised court in the
field of competition law, but I doubt whether that would be a good idea because it would
inevitably have the effect simply of extending the appeals process. Your question was
whether there were any obvious changes. Someone who is more specialised than I am in the
20
field of competition law may be able to suggest some less obvious changes, but I am unable
to think of any obvious ones.
Q23 Lord Dykes: When you say a “specialised court”, do you mean a kind of commercial
court?
Professor Arnull: I mean a specialised court in the sense of the term as it is used in the
Treaty. It would be like the specialised court which is being proposed for intellectual
property. In the past some people have suggested a specialised court on competition law.
Q24 Chairman: They failed to convince our predecessor committee, those who thought
this a good idea.
Professor Arnull: Yes.
Q25 Lord Boyd of Duncansby: Are there any more case management measures which
might be used, proactively and robustly, which could assist with the throughput of work?
Professor Arnull: I am sure this is not what you are suggesting, but I think it would be a
mistake if anybody were to suggest that the Courts do not already use case management
techniques, particularly in the expedited procedures. And particularly in competition cases
which are subject to the expedited procedure, there is quite intrusive case management by
the General Court. Whether case management could be more robust, I dare say case
management can always be more robust. I do not really feel qualified to comment on that. It
is really a question that ought to be directed to the members of the two Courts.
Q26 Lord Temple-Morris: The essence, surely, of getting the thing through as quickly as
possible, is to clarify the issues beforehand. I just wonder whether anything has been done.
As I understood it, with the judicial rapporteur and, indeed, the Advocate-General, if it
occurs to them that they need something from the Commission, and so on, or there are
some issues that they need to clarify when they are preparing their report, unless they
21
assemble the whole court they cannot get that information. Is that still the position or is that
one of things that has perhaps been ameliorated?
Professor Arnull: The Advocate-General and the Judge-Rapporteur have for a long time had
the opportunity at the administrative meeting of the Court when the case is first considered
to suggest questions which might be put to the parties. That has been done for many years.
It is possible for questions to be asked at a later stage; they would not be normally. Of
course where there is a hearing, that is an opportunity for questions to be put. They would
not be put after the hearing normally because that would cause—
Q27 Lord Temple-Morris: I am sorry to interrupt you. Is it not the best thing if these
things are clarified before the hearing? And, indeed, if there is an opportunity after the initial
questions have been agreed at a preliminary hearing, if those preparing the reports want to
improve those reports and information, they should be able to do so without having to
assemble the whole of a busy court.
Professor Arnull: Yes. I think the process already enables that to be done because at the
administrative meeting the Court is not assembled just to consider one particular case; it
considers a number of cases. The Judge-Rapporteur and the Advocate-General will have
considered prior to the meeting whether there are any issues which they require
clarification on from the parties. The parties would also be given an indication if there are
particular issues they need to concentrate on at the hearing. So I think that is already done.
Q28 Lord Kerr of Kinlochard: Is it out of the question that the judge in the national
court might frame the question rather than the parties? That could lead to quite a saving of
time as presumably the parties, because of the interests of their clients, pile in a good deal
of material which is not actually directly relevant to the particular question which has caused
the judge to think that he needs to refer.
22
Professor Arnull: My sense is that it is an idiosyncrasy of common law courts that they farm
out the drafting of the questions to counsel for the parties. In courts elsewhere in the Union
it is more common for the question to be drafted by the court. But, of course, in England
the question belongs to the court; the parties are simply making suggestions. It is the
responsibility of the judge to make sure that the question is appropriately framed, that it is
neutral and that it focuses on the issues which really need to be decided.
Q29 Lord Kerr of Kinlochard: Is there any evidence that cases that are referred from
UK courts take longer?
Professor Arnull: None that I know of.
Q30 Lord Kerr of Kinlochard: What about—we talked at the beginning about the
national judge possibly not being present in a case that has arisen in his country. Does it
matter? Is it an important point, or not?
Professor Arnull: I don’t think it always matters. It may be useful for the national judge to be
there because the national judge is likely to have some understanding of the legal, factual and
social context which judges from other countries may not have. So it may be useful for the
national judge to be there. As you know, in the Strasbourg court there is a rule that says the
national judge must always be there. There is no such rule in the EU, but I accept it could be
useful. I would not go so far as to say that there ought to be a rule like the Strasbourg rule,
but I agree, it could be useful.
Q31 Lord Kerr of Kinlochard: If there was a rule like the Strasbourg rule, would that
not in fact be wholly compatible with the rule of juge légal – the composition of the bench
being known to the client in advance and to be on a defined pattern, not specific to this
case?
Professor Arnull: There are complicated rules about the way judges are selected to sit on
particular cases which are designed to make it possible to establish who the particular
23
individuals will be. Those rules, I think, are inspired by a wish to respect the principle of the
juge légal.
Q32 Lord Kerr of Kinlochard: There is no inherent incompatibility between that
principle and having a judge of the nationality of the case?
Professor Arnull: No, indeed.
Lord Kerr of Kinlochard: It could be part of the definition.
Professor Arnull: It would be perfectly compatible, and my understanding is that it would be
very much in the spirit of the principle of the juge légal, yes.
Q33 Lord Kerr of Kinlochard: Can I ask one more? I am cheating. Professor, in your
written evidence, you distinguish two types of reforms that might be useful, and list them.
Some of them could be done without treaty amendment, and then quite a few which would
require amendment of Article 256(3) TFEU. And you have a cheerful footnote that says that,
after all, treaty amendments do happen from time to time. In Britain, any of these changes
that you discuss would in future, if they were subject to an intergovernmental conference
and treaty amendment, require a referendum. Would you like to campaign in the UK in
favour of the treaty amendment in the referendum campaign? If so, which of these would
you pick as the likeliest winner?
Professor Arnull: I am not sure they result in transferring power to the Union, do they?
Because they would be concerned with redistributing roles within an existing set of
institutions—within a single existing institution, in fact—because all the various bits of the
Court of Justice of the European Union are part of a single institution.
Q34 Lord Kerr of Kinlochard: Professor, I can imagine myself arguing your case. I think
I would. But I can also imagine others arguing, on the issue of should there be a national of
the United Kingdom on the bench whenever a case from the United Kingdom is heard, that
if that was not the case there would be a very serious transfer of sovereignty. I think that
24
you can get sovereignty in wherever you want, in fact, in any of these. I confess that I am not
very keen on referenda, for obvious reasons, but I think that now we are importing this
requirement, the chances are it would be used quite widely and would affect some of these.
Professor Arnull: Well, you may be right and I am sure that your political antennae are
more sensitive than mine, but I think I am right in saying that it is not being used about the
enlargement of the European Parliament, for example. I see that as a useful precedent, shall
we say?
Lord Temple-Morris: Lord Chairman, I think that Lord Kerr, if I may say so, if he is right,
has detonated or exploded this entire inquiry and we may as well pack up and go home.
Q35 Chairman: We will draw a line under this as we promised Professor Arnull that we
would go by quarter past five. I thank you for all your evidence and put one last question to
you. We will no doubt write a report in which we will make all sorts of recommendations. I
do not want to prejudge anything but most of them will no doubt be directed towards the
Court of Justice. Is there anything positive that the member states, the other institutions or
litigants could do to assist the court as regards the perceived problem about delays?
Professor Arnull: Well, another distinction between the Strasbourg court and the
Luxembourg court is that the Luxembourg court is not in control of its own procedure. It
requires procedural changes to the rules to the Statute to be supported by other institutions
and the member states. If there is one thing that the other institutions and the member
states can do, it is to be receptive to suggestions from the Court that the Statute or the
rules of procedure should be changed and to act promptly on reasonable requests. The
parties to cases need to make sure they comply with the practice directions that the Court
has issued, particularly on things like the length of pleadings, and that affects the translation
burden. National courts should comply with, or endeavour to follow, the advice given to
25
them in the Courts’ information note on references about the way in which references are
set out and the stage in the proceedings at which references should ideally be made.
Chairman: Thank you very much indeed. Thank you again on behalf of the committee for
coming.
Professor Arnull: Thank you, My Lord Chairman.
