Euro court split in two

Imagine if The Times and the Telegraph each had headlines saying ‘Supreme Court on the verge of a nervous breakdown’. Imagine if these same newspapers had daily coverage of a fierce dispute between judges in the Supreme Court. That, translated into European terms, is what has happened over the last few days in relation to the Court of Justice of the European Union in Luxembourg.

This is a long-standing dispute. It is not over a point of law, but about how to manage the backlog of one of the courts that makes up the European Court – the General Court. There is not even agreement about whether there is a backlog.

Some judges in the General Court, who are ranged on one side of this nervous breakdown, believe that there is no backlog. The Court of Justice, through its president, Vassilios Skouris, disagrees, and fears a huge bill for damages to the EU if the court breaches its obligations under Article 47 of the Charter of Fundamental Rights regarding the right to have cases heard within a reasonable time.

The main debate, though, is about how to tackle the supposed backlog. The General Court does not think that more judges provide the solution – they want more support staff (référendaires, as they are called). But president Skouris has been selling hard the idea of increasing the judges, and indeed cutting the number of référendaires to make room in the budget for the new judges. He initially suggested a more modest increase in judges, but because the member states could not agree to this proposal – it would have meant that they would no longer have an equal number of national judges sent to the court – the current focus is on doubling the present number.

The reason why this has come into the open again now is because the European Parliament held a hearing into the court’s reform. The member of parliament responsible for taking the matter forward, António Marinho e Pinto, a former president of the Portuguese bar, is opposed to the idea of more judges because of the cost (28 more judges).

The invitees to his hearing, therefore, which took place on 28 April, consisted not only of the president of the Court, Vassilios Skouris, but also of four judges from the General Court who are opposed to president Skouris’s proposals. President Skouris wrote to the MEP before the hearing to say ‘it is for me to suggest the presence, if any, of other members of the Court of Justice and the General Court at the meeting’. The MEP would not budge. The General Court judges attended – and reports suggest (it was a closed hearing) that president Skouris himself did not attend.

The written evidence from the four judges from the General Court suggests that they have strong views on the Skouris proposals: ‘The proposal to reform the General Court presented by the Court of Justice in 2011 is tarnished by an underlying misperception concerning the concepts of workload and backlog’ …

‘The situation as described clearly demonstrates that any increase in the number of judges at the General Court will not lead to any improvement in the qualitative or quantitative productivity of the General Court in the medium term. Indeed many chambers already have a caseload below their capacity.’ … ‘Increasing, let alone doubling, the number of judges at the General Court is yesterday’s solution for yesterday’s problem.

‘The last thing the General Court needs is the creation of a Mexican army of new judges, supported by a reduced number of qualified personnel, which will inevitably lead to a serious reduction in the productivity per personnel unit.’ … And in reference to action taken by president Skouris to stop the General Court judges proposing a different line: ‘it is regrettable that the president of the Court of Justice has commenced an official disciplinary procedure against our court with the aim of preventing the communication of any previously uncensored information to the legislative authorities’.

Oh my, oh my.

My organisation, the Council of Bars and Law Societies of Europe (CCBE), has excellent relations with the judges in all the courts, which we wish to continue. I leave you, therefore, to draw your own conclusions.