European court problems

The European Court of Justice is popular in the UK at the moment. This follows its ruling a few days ago on benefit tourism (Dano v Jobcenter Lepizig, Case C‑333/13). The facts of the case read as if they were devised by a UKIP policy wonk preparing Nigel Farage for a TV debate: ‘Ms Dano, who was born in 1989, and her son Florin, who was born on 2 July 2009 in Sarrbrücken (Germany), are both Romanian nationals… Since their arrival in Leipzig, Ms Dano and her son have been living in the apartment of Ms Dano’s sister, who provides for them materially… Ms Dano attended school for three years in Romania, but did not obtain any leaving certificate.

‘She understands German orally and can express herself simply in German. On the other hand, she cannot write in German and her ability to read texts in that language is only limited. She has not been trained in a profession and, to date, has not worked in Germany or Romania. Although her ability to work is not in dispute, there is nothing to indicate that she has looked for a job.’

The outcome, as widely reported, is that certain benefits did not have to be paid to Ms Dano, even though they might be paid to a German citizen in her circumstances. There was much cheering in Westminster.

This is just a taster for what I really want to speak about, which concerns the EU General Court’s continuing structural problems. Maybe this sudden interest in the court as a whole - the above decision is from the Court of Justice - is a good time to sneak in some of the serious difficulties it is facing. I usually try not to repeat myself, but there are topics which never go away. One of them relates to the workload and resources of the General Court (formerly the Court of First Instance).

I wrote about it in 2010, 2011 and 2012. But not in 2013! On the basis that enough time has passed since then, here is an update on the struggle to make the court more efficient. As you will see - and the fault lies with the member states, not the parliament or commission - there has been little progress.

Users of the General Court know that there are serious delays arising out of its shortage of judges. In 2010, 636 cases were submitted to the General Court, in 2011 722, and around 1,000 in 2014. The number of pending cases is estimated to be approaching 1,500. The excessive length of procedures is now a regular ground of appeal in cases from the General Court to the Court of Justice.

The court is facing appeals for €23m (£18m) in compensation for violation of reasonable deadlines. Moreover, €7.1bn (£5.6bn) worth of fines for breaches of competition rules are currently blocked due to appeals pending at the General Court.

In 2011, the pesident of the ECJ called for 12 extra judges to be appointed to the court. But 12 into 28 does not go, and - surprise, surprise - each member state wants to have the same number of judges as the others. None will agree to one country having two judges, if it can’t have two. There have been increasingly sophisticated rotation systems proposed, but the decision requires unanimity, which has so far proved elusive.

The ECJ president submitted a new text last month, proposing a gradual progression to 56 judges, so that eventually each member state would have two.

But MEPs discussing the topic a few days ago were unconvinced: disproportionate and unaffordable (each judge is estimated to cost a million euros a year, but of course not in salary alone). The rapporteur in the parliament is from the Liberal grouping (ALDE), and happens to be a former president of the Portuguese Bar, Antonio Marinho e Pinto.

Interestingly, the Court of Justice has differing views on a solution to the General Court, and the Council of Ministers and the commission each have further variants on the way forward. For instance, the General Court believes that there should be a specialised court for intellectual property, since a considerable amount of its litigation focuses on this. But the Court of Justice feels that this would not resolve the underlying increase in number of cases.

Another means of finding a solution was tried 15 years ago. At that time, the European Commission convened a Group of Wise Men (sorry, my sense of political correctness winces). It was led by a Danish former president of the court, Ole Due, who had himself faced problems of a growing caseload while president. His group submitted a report after nine months, and was very influential.

Maybe in its sudden rush of love for the Luxembourg courts the UK will put resources into finding a solution to this intractable problem.

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