35. A fundamental question
raised by the proposal was whether it threatened to undermine
to an unacceptable degree the collegiate character of the CFI.
The Court of Justice described the introduction of a single Judge
as "an important innovation for the Community judicial system"
and said that it did not therefore rule out a gradual approach
and a trial period. It explained that its proposal "belongs
to the context of a general trend which may be observed in the
legal systems of the Member States. The majority of national courts
are, like the Community Court, faced with the problem of increasing
judicial business. In the national legal systems recourse is increasingly
being had, with a view to resolving this problem, to the single
Judge". The Court acknowledged the importance of ensuring
"that several Judges from various national legal systems
will be present when the Community Court is called upon to decide
new and important questions, to develop Community law and to lay
foundations which will be of general significance for the future
interpretation of the applicable rules". However, it did
not consider the involvement of several Judges essential in cases
of limited importance which could be decided by reference to an
established line of case law. The Court said that the proposed
amendments to the Rules of Procedure of the CFI preserved as far
as possible the principle of collegiality and helped ensure that
any case which was important or which raised difficult or novel
questions would be heard by Judges from at least three different
national legal systems.
36. However, some witnesses
objected in principle to allowing the CFI to have recourse to
a single Judge. The CCBE said it was "strongly opposed to
any alteration to the constitution of the CFI that would undermine
its multijudge (and thus multinational) nature".
Pluralism was a major source of strength in all the Community
institutions and helped to `depersonalise' and `denationalise'
the Community judicature, thus increasing public acceptability
of its judgments. Ms Finlay Geoghegan emphasised the need to reinforce
the authority of and confidence in the CFI "as a new court
in a relatively embryonic legal order", sometimes perceived
as a foreign court hearing challenges to the acts of foreign institutions.
Mr Waelbroeck said that, in a multicultural Community, it
was important not to allow judgments to be identified with a specific
nationality (p 4, QQ 2, 4, 10).
37. The CCBE did not,
however, object to the proposal in so far as it related to staff
cases, the handling of which it accepted would improve if they
were capable of delegation to a single Judge. Mr Forwood said
the CCBE was also "fairly comfortable" with allowing
single Judges to deal with interlocutory matters, as long as that
category did not extend to the disposal of cases by order rather
than by judgment. He explained: "We have no difficulty at
all with more efficient ways of handling cases as they run"
(QQ 2, 14, 39).
38. The importance of
preserving the collegiality of the CFI was also emphasised by
the Faculty of Advocates, the Law Society of Scotland and the
Délégation des Barreaux de France. The FFPE said
it would be a very significant disadvantage if decisions of the
CFI were "no longer taken by Judges from several EU states
each with their own rich but also diverse legal traditions, thereby
ensuring (an often refreshing) but above all essentially European
breadth of approach" (p 42). Professor Vandersanden observed
that "a Judge sitting alone might well be perceived as less
credible and less reliable than a bench of three Judges"
39. For the Government,
Mr Hendry said of the proposal: "we do not see it as a radical
and revolutionary step, nor one which may necessarily solve all
the problemsbut it is a step in the right direction".
Mr Hendry said that "the Government obviously regards the
multi-judge, multi-national character of the Court of First Instance,
as the European Court does, as important. On the other hand, we
do not regard the proposal for certain cases to be heard by a
single Judge as doing away with the character of the Court."
He pointed out that a Chamber of three Judges would decide whether
or not to delegate a case to a single Judge and that the single
Judge would be able to refer the case back to the Chamber of three
if he considered that it no longer fulfilled the criteria for
delegation (QQ 118, 136).
40. Mr Collins explained
that all the Member States appeared to support the proposal in
so far as it related to staff cases. Beyond that, the United Kingdom
was one of 12 Member States which were basically in support of
the proposal, but three Member States had expressed doubts about
it. Their main concern seemed to be that hearings by a single
Judge would detract from the collegiate nature of the CFI. Mr
Collins thought that the force of that argument depended on the
extent to which the CFI was classed as an international court.
His own view was that the CFI was international only in the sense
that it was not national. He pointed out that it did not deal
with disputes between States (QQ 109, 111, 140, 145).
41. Judge Bellamy said:
"In my view it is wrong to see this proposal as an abandonment
of the principle of collegiality; it is a modification of the
principle of collegiality". Judge Vesterdorf observed: "the
type of cases that we are talking about in this proposal are cases
in which I fail to see the relevance of the nationality of the
judge. Some of the staff cases were concerned with whether or
not a particular member of staff had a right to four days of holiday
or three days of holiday. Whether it is a British, German or Danish
judge does not make any difference". Judge Potocki stressed
that the CFI comprised 15 European Judges applying a common tool,
European law. He added that, in any event, it was not unusual
in private international law for cases to be decided by judges
whose nationality and cultural background differed from those
of the parties. Judge Potocki observed: "It seems to me that
the legitimacy of the judge is not really assessed on the question
of who he or she is but on how he or she deals with the cases".
He thought that litigants would consider a Judge's efficiency
more important than his nationality (QQ 72, 73, 75). For the Government,
Mr Hendry said that "the legitimacy of the Court ... should
not and does not depend on there being a certain number of judges
dealing with a particular case. It is more the reputation of the
Court itself which it acquires by its performance, whether consisting
of one, three, five Judges, or a full Court" (Q 136).
42. The CCBE noted that
no national court, even at the highest level, had jurisdiction
to declare a Community act invalid.
It might be thought inconsistent with that rule to allow Community
acts to be declared invalid by a single Judge of the CFI (p 4,
Q 6). That point was endorsed by the Deutscher AnwaltVerein (German
Bar Association), which said that the Court's proposal "could
mean a breach of fundamental principles of Community law, such
as the principle of the rule of law (`Rechtsstaatsprinzip')"
(p 39). Judge Vesterdorf acknowledged that, like a Chamber of
the CFI, a single Judge would be able to declare an individual
act of one of the Community institutions invalid. However, he
pointed out that, under the latest draft of the proposal, a single
Judge could never be called upon to declare invalid an act of
general normative character (Q 80).
43. The CCBE, the Faculty
of Advocates, the Law Society of Scotland and the Délégation
des Barreaux de France found unconvincing the comparison drawn
by the Court of Justice with national courts which sit with single
Judges. The CCBE argued that undermining public confidence in
the CFI, which was linked to its multinational and multiJudge
composition, could lead to more appeals. In many of the countries
which had single Judges at first instance, there was an appeal
on both fact and law to a (multijudge) appeal court. The
CFI was a tribunal of last instance on all issues of fact. Moreover,
the members of the CFI came from a wider range of backgrounds
than was usual in the national courts. Certain members might as
a result find it difficult to sit as a single Judge in the years
immediately following their appointment. Ms Finlay Geoghegan observed
that "at present undoubtedly people are appointed who do
not have experience either as advocates or as judges". Mr
Waelbroeck said that one of the advantages of the collegiate system
was that "you balance the qualifications of the judges".
He maintained that, if the single Judge proposal were implemented,
the system for appointing Judges would have to be reviewed (pp
2, 4, QQ 2, 9).
44. The FFPE agreed
that the training and integration of new Judges would be more
difficult if they were expected to sit alone from the outset (p
42). Professor Vandersanden noted that the quality of the Judges
and their assistants, on which the value of a decision given by
a singleJudge Court would depend, might vary considerably,
particularly in the case of new appointees or those from new Member
States (p 46). The Law Society of Scotland said that the Court's
proposal "could lead to claims that cases had been wrongly
decided due to factors relating to the single judge such as his
nationality or perhaps even his prejudices" (p 54). Some
members of the Bar Council thought that Judges sitting alone "may
be exposed by their single opinions to political and social pressures"
45. Judge Vesterdorf
explained how the membership of individual Chambers was determined
and the JudgeRapporteur in a particular case chosen. One
factor taken into account in relation to the former was the desirability
of ensuring a mix of experienced and less experienced Judges.
As for the identity of the JudgeRapporteur, it was the responsibility
of the President of the Chamber to propose a name to the President
of the CFI. Cases would normally be allocated among the members
of the Chamber in turn, subject to the need to ensure an even
distribution of work. If the President of the CFI was content
with the name put forward, he would designate the individual concerned
as JudgeRapporteur (QQ 63, 64).
46. Judge Vesterdorf
said that this system would make it possible to ensure informally
that Judges were not asked to deal on their own with cases in
which they would be out of their depth: "The Chamber President
will always be a Judge with a considerable length of experience
in the court. When he decides or proposes who should be the Judge[Rapporteur]
he will also have an eye on which of the cases might be suitable
for giving to a single Judge. I feel confident that a President
of the Chamber would make sure a totally new Judge who had just
joined the bench would not be singled out to deal with that sort
of case for at least the first year maybe". Judge Vesterdorf
added, however, that there would be certain cases "of such
a singularly simple character" that even a completely new
Judge could safely be asked to deal with them alone. Whatever
their backgrounds, all the Judges had considerable legal experience
and had been considered qualified for appointment (Q 78).
47. Dr Lasok considered
the argument that collegiate judgments protected individual Judges
from attack of "little relevance to CFI proceedings, in which
the political element often present in ECJ cases is absent".
In any event, the judgments of the CFI were "often delivered
by chambers having such a small number of judges that the protection
supposedly afforded by a collegiate judgment is illusory"
(p 50). For the Government, Mr Collins said that, when a case
was before a Chamber of three, "you can recognise three Judges
as much as one Judge. Most people know that the lead is always
taken by the reporting Judge" (Q 138).
48. Dr Lasok argued
that, whatever its validity in relation to the Court of Justice,
the argument in favour of the collegiate nature of the Community
Courts had always been particularly weak when applied to the CFI.
From its inception the CFI had almost invariably sat in Chambers
and hardly ever in plenary session. It had been established mainly
to deal with cases requiring a close examination of complex facts
and its jurisdiction was originally limited to fields where there
was an extensive body of Court of Justice case law to guide it.
The possibility of an appeal to the Court of Justice preserved
the ability of that Court to ensure the uniform application of
Community law and correct any national bias. Where the case law
of the Court of Justice was not very helpful, the area was likely
to be a technical one where there might be little to be gained
from seeking inspiration from national law. Dr Lasok did not think
that there was any reason of a constitutional nature to regard
the collegiate character of the CFI as a necessary part of its
identity. The Treaties left to the Council the task of determining
the composition of the CFI and the extent to which the provisions
governing the Court of Justice should apply to it. Collegiality
was not therefore enshrined in the Treaty, but was "merely
a principle that the Council is free to adopt or to depart from
where appropriate" (pp 49, 50).
49. Those consulted
by the Bar Council suggested a number of procedural reforms designed
to introduce greater efficiency. They were content for single
Judges to deal with staff cases and interlocutory applications
(provided in the case of the latter that the matter could be referred
speedily to a Chamber composed of three Judges where necessary).
Those consulted were divided on the question whether recourse
to single Judges should be permitted in other cases. The Law Society
of Scotland took the view that delegation should be permitted
only "in very clearly defined and narrow circumstances".
It said it "could support single judges being used in staff
cases" and perhaps also in cases dealing with procedural
matters or interim orders (p 54). Judge Potocki pointed out that
several types of interlocutory decision were already taken by
the President of the CFI or the President of the Chamber concerned
sitting as a single Judge (QQ 89, 90). For the Government, Mr
Collins said that the most important of the matters at present
dealt with by a single Judge were applications for interim measures.
He noted that "sometimes at an application for interim measures
the case is effectively decided" (Q 136). Dr Plender, who
described the Court's proposal as "far from radical",
pointed out that some decisions currently taken by a single Judge
might have considerable importance for the parties. He added:
"There is ample precedent for the allocation of cases to
single judges, even in the resolution of disputes between States"
50. The FFPE thought
there was "a potential ethical conflict in the selfsame judge
being asked to rule on interim relief applications and give final
judgment" (p 42). Professor Vandersanden took the view that,
if the power to order interim measures and give final judgment
on the substance were entrusted to the same Judge, there was a
risk that the final outcome would be prejudged when interim relief
was ordered and that as a result the Judge's independence might
be compromised: "One of the conditions for ordering interim
measures is a supposition that the principal action is well founded;
a single judge is unlikely to change his mind between the interim
measures and the final decision" (p 47).
51. Mr Jung explained
that applications for interim measures normally arrive at the
beginning of a case, when it would still be pending before a Chamber.
Responsibility for dealing with the application would in principle
belong to the President of the CFI. Under the proposal a single
Judge would only have to decide on such an application in very
exceptional situations where one was made when the case was already
ready for the oral procedure. Mr Jung said: "In such a situation
I could see no disadvantage if the same Judge who had decided
the substance of the case had given some provisional measures
in the meantime" (Q 79).
52. Leaving aside any
objections of principle, witnesses were divided on the question
whether allowing the CFI to sit with a single Judge would make
any appreciable difference to its ability to handle its workload.
According to the Court, the advantage of permitting recourse to
a single Judge would be that, by reducing the number of Judges
required to sit in a case, the other Judges would be released
from the obligation to attend the hearing and take part in the
deliberations. The time thus saved could be devoted to other cases.
53. Judge Vesterdorf
said that the CFI had taken the view that it could not reasonably
propose more drastic and costly measures without doing everything
it could to improve its productivity within its existing resources.
He thought that "a significant number of cases" might
lend themselves to delegation to a single Judge and that "we
might achieve something like perhaps a ten per cent increase in
efficiency without it costing one penny more to the taxpayers".
Judge Bellamy gave a detailed account of where he thought time
might be saved if the proposal were implemented. He explained
that it offered the possibility not only of saving judicial time,
but also of reducing the amount of time taken to process a case
from beginning to end (QQ 50, 75). For the Government, Mr Collins
saw this as important: "it is not so much the procedure which
needs altering perhaps as, in fact, concentrating the gaps between
the procedures" (Q 148). The CFI did not think that recourse
to a single Judge would have any appreciable impact on the number
of appeals to the Court of Justice, since experience showed that
whether an appeal was brought depended more on the legal difficulty
and economic importance of a case than on the number of Judges
who had decided it.
54. The Government said
the Court's proposal represented "a balanced and sensible
response, with appropriate safeguards, to the risk of serious
overload of the Court of First Instance when trademark appeals
come on stream" (p 27). Mr Collins said he had heard nothing
at all to suggest that the CFI's estimates of the potential efficiency
gains were improbable (Q 124). Dr Lasok acknowledged the modest
nature of the proposal, but observed that "a modest beginning
may be justified: it makes the innovation more acceptable and
minimises the adverse consequences should the innovation prove
less successful than anticipated". Although the effect of
the proposal would probably be "relatively small", Dr
Lasok thought that "[i]n those cases that are delegated to
a single judge, it seems likely that there will be some reduction
in the time taken to dispose of the case as from the point at
which the decision to delegate is taken". He noted that delegation
"will not (in principle) increase the burden on the judgerapporteur
because he or she would in any event have to prepare fully for
the hearing and draft the judgment" (pp 50-52).
55. Dr Plender said
he supported the proposal as a modest step towards improving the
CFI's procedures, although he did not regard it as a substitute
for more substantial change. He thought that allocating a case
to a single Judge would reduce the delays entailed in organising
oral hearings and deliberations and reaching agreement on an order
or judgment. It would also enable the other members of the Chamber
and their assistants to spend more time on other cases. These
advantages would produce benefits for users of the CFI generally
56. The CCBE was more
critical. Ms Finlay Geoghegan observed: "If what was being
proposed by the CFI envisaged huge judicial time saving, one might
say one should take the risks which we perceive, to having cases
decided by single judges". However, she considered that "the
present proposals do not begin to address the problems and the
crisis which exists". Even if the proposal were fully implemented,
it would "only make a very small and almost insignificant
difference to the working of the CFI". It was because it
considered the potential improvement in the working of the CFI
so small that the CCBE took the view that the risks associated
with the Court's proposal were unwarranted (QQ 2, 14).
57. In its written evidence
the CCBE said: "Given that all three judges in a chamber
will in any event have to study each case to a sufficient depth
in order to satisfy themselves in each case both that the criteria
for transfer exist, and that the case is appropriate for transfer,
it is not apparent that much further judgetime would be
saved in those relatively simple cases that would be eligible
for transfer" (p 2). However, Judge Bellamy explained that
the decision would be taken on the basis of the written papers:
"The parties would not have the right to make oral representations
about it". His view was that "one would recognise almost
instantaneously what cases were suitable for single Judges and
which were not, so I do not myself see that part of the process
taking a great deal of time". He agreed that, if a case was
not recognised instantaneously as suitable for delegation, it
would almost by definition not be suitable (QQ 85, 86).
58. The views of the
CCBE on the likely effect of the proposal on the ability of the
CFI to handle its workload were broadly endorsed by the FFPE,
the Law Society of Scotland, the Délégation des
Barreaux de France and the Faculty of Advocates, which found "little
analysis in the explanatory memorandum of the costs and benefits
to be derived from the proposals" (p 41). The CCBE also suggested
that, where the contribution of the two other Judges was more
than insignificant, the result was a better judgment which was
less likely to be the subject of an appeal or overturned by the
Court of Justice (p 5). The FFPE and Professor Vandersanden agreed
that single Judges might generate more appeals to the Court of
Justice (pp 42, 46).
Appendix 3, para 1. Back
The statistics are set out in Appendix 4 to this Report. Back
Appendix 3, paras 2-4. Back
In an opinion attached to the memorandum submitted by the FFPE. Back
See Case 314/85, Foto-Frost v. Hauptzollamt LübeckOst:
 ECR 4199. Back
Memorandum by the CFI, section III entitled "Number of Appeals
Brought and Number of Judges Hearing a Case", printed at
p 16 of the evidence. Back