EU Committee: Court of Justice of the European Union

Lord Boyd of Duncansby Excerpts

Monday 17th October 2011 Lords Chamber

[Lord Boyd of Duncansby]

My Lords, I begin by declaring an interest as a solicitor-advocate in practice in Scotland, and from time to time my practice involves cases which may end up in the European courts. I am very pleased to have been a member of the sub-committee which undertook this investigation and I want first of all to pay tribute to our chairman in guiding us through what I believe was a very good report with a deftness of touch, and also to the staff, the clerks and the legal advisers who gave excellent advice.

I want to address the issue of judges and resources in the courts. In a time of austerity, for a lawyer to make a plea for more resources and more judges in a court may sound like special pleading if not perverse. To ask for such resources for European institutions is always asking for trouble. In the popular mind, a European court is one that interferes with British interests, perhaps to the detriment of parliamentary sovereignty. The failure in the popular mind to distinguish clearly between the European Court of Human Rights on the one hand and the Court of Justice of the European Union on the other makes the task even more difficult. Yet it is apparent from our report that the delays in the Court process as a result of the situation that now faces the Court are a significant impediment to economic activity and the achievement of the goals of the European Union.

The committee was particularly concerned about the workload of the General Court, which deals with cases that turn crucially on the assessment of often large amounts of factual material, including competition cases where challenges to the decisions of the Commission, which themselves run into 600 pages, may generate files that contain 20,000 pages or more. Competition cases now represent 10 per cent of the workload of the General Court, and the average turnaround for all cases, including competition cases, is 33 months. As the CBI has said, an average turnaround of 33 months in competition cases is simply unacceptable. It cites the particular example of the ICI case which, exceptionally, took over nine years to be resolved.

The move to have decisions under the EU regulation on the registration, evaluation, authorisation and restriction of chemicals—the so-called REACH regime—from the European Chemicals Agency subject to appeal in the General Court will undoubtedly increase pressure on that court. One estimate suggests that there may be over 2 million applications to the European Chemicals Agency, and there is real concern that the General Court may be overwhelmed as a result.

One way of helping to ease this is by the creation of specialist tribunals taking some of the work—trade marks have been suggested—away from the General Court. As we have already heard, the committee considered that specialist chambers were a more efficient way of proceeding because they would allow judges to be redeployed within the Court structure to cope with peaks and troughs. A specialist tribunal would simply increase the rigidity of the system without gaining any flexibility.

In my submission, we cannot get away from the need to increase the number of judges in the General Court. To that extent, I was pleased to see the response from the Government in the letter of 4 July to the chairman of the European Union Committee. The Minister, Mr Lidington, said that the Government were working actively with other members discussing the size of the judiciary in the General Court. Will the Minister tell us what progress has been made on that issue?

Turning to the Court of Justice, we believe that there are problems ahead. It is true that the present workload is being coped with, but we saw a crisis looming because of the number of new cases that are likely to come forward from the new states following enlargement and the new jurisdiction in freedom, security and justice. It is clear that these pressures are going to be there, and I was disappointed to see in the same response that the Minister is not convinced that the Court of Justice is facing an imminent crisis without any real specification of that. What evidence does the Minister have to counter that of the committee that the Court of Justice is indeed facing a crisis? How imminent it is may be a matter of conjecture, but does he agree with the committee that something needs to be done, and done soon, otherwise we will face further problems?

I believe that this is a good report that will set a benchmark for the future of the Court if the Government act in conjunction with other member states. I will be pleased to hear in general what the Government’s response is to this report.