Abstract
In this short “non-doctrinal” contribution to the Festschrift in honour of Carl Baudenbacher following his resignation as president of the EFTA Court, I shall discuss the intricacies of deliberating in a legal forum consisting of judges from all Member States of the European Union. I shall discuss a number of points on the basis of my own personal experiences as a former judge and president of the Court of First Instance (now the General Court, the ‘GC’). I shall discuss how the multinational nature of the EU Courts (the Court of Justice and the GC) influences judicial deliberation and reasoning of judgments. This contribution is not meant to be an academic discussion but simply some personal reflections on the issues mentioned.
Former President of the Court of First Instance of the European Communities.
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- 1.
The possibility for the GC to decide certain cases by a single judge is in practice almost never used.
- 2.
Plus at the Court of Justice a number of advocates general, presently 11.
- 3.
The extra judges are being appointed to the GC gradually between 2015 and 2019.
- 4.
Nor is it prescribed anywhere in the rules, as it is at the European Court of Human Rights, that a judge of the nationality of the Member State from which the case comes must be a member of the deciding chamber. For a number of years that was, however, the practice of the Court of Justice. The Court of Justice, however, in practice never appoints the judge, whose country the case concerns specifically, as judge rapporteur.
- 5.
Formally the decision regarding composition of the chambers is taken by the Court sitting in a plenary session. However, since the establishment of the Court it has been a rule that in practice it is the President who decides on the composition. This avoids any possible dispute between the members of the Court regarding who sits with whom in a chamber.
- 6.
This is also apparent from the present composition of the nine chambers of the GC.
- 7.
It may, however, happen occasionally when a judge in a chamber needs to be replaced by a judge from another chamber and in cases brought before the grand chamber.
- 8.
It has sometimes been suggested that the Courts should allow oral deliberations in another language chosen by the deliberating judges. This has, in fact, been done in practice over the years from time to time when all members of the chamber accepted such a suggestion. From my time, I remember one specific case which it was decided to treat under the accelerated procedure. The language of the case was English and the three judges of the case dealt with the case in English all the way, both in writing and in oral deliberations. At the Court of Justice it has happened in a number of cases, at least during the presidency of former President Ole Due. I am informed that the Court of Auditors of the European Union in a report on the institution the Court of Justice has recommended that the Courts consider the possibilities of introducing more than one working language. I would personally advise against that.
- 9.
Article 87 in the Rules of Procedure of the Court of Justice and Article 117 in the Rules of Procedure of the GC only provide that judgments, in addition to indicating the formalities of the case, must give a summary of the facts and explain the grounds for the decision.
- 10.
See for example Oppermann (1991), p. 234.
- 11.
The GC would possibly also have regard to judgments of the EFTA Court in comparable cases. Furthermore, judgments of the European Court of Human Rights may serve as guidance in cases regarding fundamental rights as now set down in the Charter of Fundamental Rights of the European Union.
- 12.
In its judgment in Case T-173/98, Union de Pequenos Agricultores v. Council, EU:T:1999:296, the Court of First Instance openly challenged earlier and rather strict case law from the Court of Justice regarding the interpretation of the admissibility for individuals to challenge certain acts of the EU institutions. This judgment was on appeal quashed by the Court of Justice, see judgment in Case C-50/00 P, EU:C:2002:462. Another example is the judgment by the GC in the Assi-Domän case (T-227/95, EU:T:1997:108) which was also quashed by the Court of Justice on appeal (C-310/97 P, EU:C:1999:407).
- 13.
A clear example of this is the judgment of the Court of Justice in Joined Cases C-267/91 and C-268/91, Keck and Mithouard, EU:C:1993:905, in which the Court explicitly stated in para 16 “By contrast, contrary to what has previously been decided…”
- 14.
For a discussion of these issues, see Edward (1994).
- 15.
Ibid, see pages 47–50.
- 16.
Contrary to the first more than 40 years the Court of Justice does not any more appoint an Advocate General to assist it in cases in which the Court finds that no new points of law have been raised.
- 17.
During the first 3 years, the GC appointed an advocate general in four cases in total.
- 18.
Since 2015 the GC may decide the case without an oral hearing, unless one of the parties to the case requests a hearing or if the Court finds an oral hearing necessary. In cases without oral hearing the chamber will start deliberations once the written procedure is finished.
- 19.
In a number of less important cases or cases in which there is a well-established line of case law the Court of Justice may decide the case without an Opinion from the Advocate General.
- 20.
Dr. Ulrich Everling, quite rightly I think, described the way in which the Court of Justice states its reasoning as “terse, almost epigrammatic” as opposed to discursive and explanatory. Everling (1994).
- 21.
I understand that some kind of similar general discussions still take place at the GC.
- 22.
Since the gradual arrival of two judges from each Member State it appears that many more cases are now being attributed to five-man chambers. In 2017 about 80 cases whereas in former years on average only about 10 cases a year were given to five-man chambers.
- 23.
At the Court of Justice, the weekly general meeting of all the Members, during which the Judge Rapporteurs present their preliminary reports of cases being prepared for oral hearings, allows for a certain degree of coordination.
- 24.
All judges at the two Courts are assisted by legal assistants (the referendaires). They will, as part of their valuable assistance, be tasked with examining existing case law, advising their judge about the possible risks of contradicting previous decisions, and perhaps how to avoid such an outcome. Another important form of assistance in this regard is provided by the so-called lecteurs d’arrêt. One of the important tasks of the so-called lecteur d’arrêt is to draw the attention of the Judge Rapporteur in a specific case to the risk of creating incoherence with former judgments or with a draft in a similar case from another chamber. Another important task of the lecteurs d’arrêt, who are all French-speaking lawyers, is to ensure linguistic quality (as pointed out above, French is the working language of the Courts). Translation into the other formal languages of the Courts is always done on the basis of the original French version of the judgment.
- 25.
The GC often refers to its full jurisdiction when it modifies a fine imposed in competition cases by the Commission, when in reality, in most cases such modifications are just automatic adjustments to the fine according to the Guidelines. This could come as a consequence of, for example, finding that an infringement did not last as long as alleged by the Commission. Formally seen, changing the sanction imposed is an exercise of unlimited jurisdiction but normally the modification just follows the Guidelines. However, should the GC find an infringement to not be as serious as alleged by the Commission and then set a lower fine without any regard to the Guidelines, the GC would be using its full jurisdiction not only formally but also really in that the Court has undertaken its own independent view of the seriousness of the case.
- 26.
The case was decided by a three-man chamber presided by the present President of the Court of Justice and one of the other members was the present President of the GC.
- 27.
See for example the GC judgment in Case T-11/06, Romana Tobacchi v. Commission EU:T:2011:560, Case T-462/07, Galp EU:T:2013:459, and Joined Cases T-56/09 and T-73/09, Saint-Gobain France v. Commission EU:T:2014:160.
References
Edward D (1994) The nature of the community judicial process. In: Liber Amicorum, in Honour of Former President of the Court of Justice, Ole Due. G.E.C. GAD’s Forlag, Copenhagen
Everling U (1994) Reflections on the reasoning in the judgments of the Court of Justice of the European Communities. In: Liber Amicorum, in Honour of Former President of the Court of Justice, Ole Due. G.E.C. GAD’s Forlag, Copenhagen
Oppermann T (1991) Europarecht. Beck, Munich
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Vesterdorf, B. (2019). Judicial Reasoning in a Multinational Court. In: Selvik, G., Clifton, MJ., Haas, T., Lourenço, L., Schwiesow, K. (eds) The Art of Judicial Reasoning. Springer, Cham. https://doi.org/10.1007/978-3-030-02553-3_19
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