August/September 2001 - CER BULLETIN, ISSUE 19

SPEEDING UP EUROPEAN JUSTICE
Matthew Heim

 

The European Union's legal system is one of the most significant contributors to European cohesion, prosperity and peace; yet it is also one of the Union's least recognised strengths. It was therefore no surprise that - despite their importance - the reforms of the European judicial system agreed at Nice were one of the least appreciated aspects of the summit.

At Nice, EU member-states agreed to overhaul the workings of the Luxembourg-based European Court of Justice (ECJ) and its junior institution, the European Court of First Instance (CFI). One reason was the prospect of EU enlargement. Another was the expansion of the Court's jurisdiction into new areas, such as intellectual property. However, the Court is already groaning under the strain of its existing caseload. Delays in the ECJ have created serious conflicts with national courts which do not wish to wait for ECJ rulings. Rapid reform was vital to provide the Court with the tools to cope with its escalating caseload.

The Nice Treaty reforms therefore aim to increase the speed at which cases are heard and processed. One notable initiative permits the creation of specialist judicial panels, which will increase the Court's ability to deal with technically difficult cases, or areas outside its traditional jurisdiction, such as EU staff cases. Furthermore, the introduction of qualified majority voting in the Council for amendments to the ECJ's rules of procedure will make it easier for the Court to push through future reforms.

The redistribution of responsibilities will free up the CFI to tackle the bulk of the European Court's work. The CFI's operations are already faster than the ECJ, while a new fast-track procedure for urgent cases has just been set up. This could potentially apply to the controversial issue of merger reviews, such as the GE-Honeywell decision.

The Nice reforms have profoundly changed the judicial architecture of the EU, in response to the new challenges of a larger, more diverse EU and the increasing complexity of the European economy. With the creation of a new tier of jurisdiction through the specialist panels, the CFI can be considered as a High Court dealing with the day-to-day business of European law. The ECJ will continue to hear appeals from the CFI but can now focus on its real strength: determining constitutional matters and serious issues of principle affecting the coherence of EU law.

Every day, the European Court resolves disputes that would otherwise provoke major disagreements between or within member-states. Naturally no court which is the final arbiter of rights can escape controversy: the Court has had its fair share of detractors. Yet despite criticism from national politicians and other courts, the Nice Summit affirmed the ECJ as the highest constitutional court in Europe.

In contrast to the fluctuating fortunes of the Commission and the political volatility of member-states, the European Court guarantees a degree of permanence to the EU. By and large the ECJ and the CFI have maintained the quality of their rulings to an impressive degree. The latest reforms should ensure the Court becomes even more efficient in future.

The success of the Nice changes will be tested by enlargement. It is not clear whether lawyers and judges in the new member-states will be willing to apply European law themselves. National judges should be confident enough to rule on most points of EU law, both to ease the burden on the ECJ and to underpin their own rulings. The ECJ should only step in to provide clarification when the law is manifestly unclear. The experience of countries such as Greece, Portugal and Spain, which all took time to develop democratic institutions before joining the EU, is encouraging, but not conclusive. It is vital that the judges and lawyers in the new member-states are provided with appropriate training.

The Nice Treaty left the fine details of the reform to be resolved by the Court and the Commission. This process should be transparent and seek to draw on best practice in all European jurisdictions. Both current and new member-states will not enjoy the benefits of EU membership without an efficient court system, which applies the law speedily and effectively.

Matthew Heim is Senior Associate at APCO Europe. He writes in a personal capacity.