Should everything in the EU be divisible by 27?

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I see it as my role to give the positive side of the European project - of which there is much to say - and to berate the UK press, which abuses the EU thoughtlessly day after day. But I am sorry to report that I shall have to continue the theme of last week, and criticise the tendency of national governments to promote national interests over those of the EU in Europe-wide initiatives, to the detriment of us all.

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Last week, I spoke about patents, and despaired over the decision to split the new Unified Patent Court into three venues, because France, Germany and the UK could not agree where it should go. So they all got a piece of it, which is the least satisfactory solution. (However, it appears that the long-running saga is not yet over.) This week, we see a bit more of the same, and in relation to another court, the Court of Justice of the European Union (ECJ).

On 28 March 2011, the president of the ECJ wrote to the president of the European Parliament seeking amendments to the Statute of the ECJ, and in particular ‘to amend the rules relating to the composition of the Grand Chamber and to establish the office of Vice-President of the Court of Justice, to increase the number of judges of the General Court and to provide for the possibility of attaching temporary judges to the specialised courts.’ The main reason for these changes is that ‘the prospects of a constant increase in the number of cases brought, in particular following the 2004 and 2007 accessions and the entry into force of the Treaty of Lisbon, need to be considered’.

One of the chief requests of the president of the ECJ was for 12 more judges for the General Court (from 27 to 39). This was a mistake. He should have asked for 27 more judges, because then each member state could have had its own. But 12 does not go easily into 27. He should have asked rather for 13 and a half judges, which would have allowed, say, France to own the head and Germany the feet. Now, however, with 12, the member states cannot decide how to select the judges’ nationality. The European Parliament’s rapporteur blamed 'individual national vanities of member states'.

We need to stress here whose responsibility it is: not the supposedly ridiculous Eurocrats of Brussels or members of the European Parliament, but the democratically elected governments of the member states which, for the second time in a short period, have put national interests before European ones.

As a result, when the parliament debated the matter at its plenary session on 5 July, it split the president’s request into two. All the non-controversial issues went through - such as creating the posts of vice-presidents, allowing the presidents of five-judge chambers not to participate in cases sent to the large chamber, increasing the number of judges who can participate in the work of the large chamber from 13 to 15, and attaching temporary judges to specialised courts. But the issue of the number of judges for the General Court has been postponed, pending further debate.

This is a serious matter. The president’s long letter deserves reading in its entirety, but on the backlog faced by the General Court, he says this: ‘The difficulties faced by EU litigants bringing a case before the General Court are well known. For several years now, the number of cases disposed of by the General Court has been lower than the number of new cases, so that the number of pending cases is rising constantly. At the end of 2010, there were 1,300 cases pending, whereas, in the same year, 527 cases were disposed of.

'From 20.9 months in 2004, the average duration of proceedings rose to 27.2 months in 2009. Even though it was reduced to 24.7 months in 2010, it is much greater in certain classes of action. Thus, the average duration of proceedings in cases dealt with by way of judgment last year was 42.5 months for state aid cases and 56 months for other competition cases.’

He himself refers to the principle that cases should be dealt with within a reasonable period of time, or face being in breach of the Charter of Fundamental Rights and the European Convention of Human Rights. Let us not blame an abstract ‘Europe’ for this. When the EU is facing such perilous times, can we not ask and expect that our elected governments behave in a more serious fashion?

Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs

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