ECJ statute reform
Extra judges dilemma put off until later by EP and Council
By Gaspard Sebag | Thursday 31 May 2012
The Danish EU Presidency agrees with the European Parliament’s plan to split the reform of the EU Court of Justice’s (ECJ) statute in two. The politically sensitive request for 12 more judges for the General Court, which would disrupt the balance of one judge per member state, has hit a brick wall. In order not to stall the entire dossier, the EP proposed to separate this demand from other non-controversial modifications (see box). The EP’s Committee on Legal Affairs (JURI) green-lighted this approach, on 31 May, a day after the Committee of Permanent Representatives (Coreper) did so. The EP plenary as a whole should follow suit, on 4 July, and the Council shortly after.
To cope with an increased workload, mainly due the enlargements, the entry into force of the Lisbon Treaty and the sizeable backlog of pending cases, ECJ President Vassilios Skouris requested 12 more judges for the General Court, in June 2011. Parliament supports this request fully and at Coreper level there is general support for the proposal to increase the number of judges. Nevertheless, no agreement can be found.
The sticking point at Council level is the extremely sensitive issues of the number of judges and the method to decide upon their nationality, which is a matter that member states settle amongst themselves. Increasing the total number of judges in the General Court from 27 to 39 will necessarily disrupt the nationality balance. Yet no country wants to lose out. “It’s basically a power struggle,” says a Presidency source, drawing a parallel between the nomination of commissioners in the college (one per member state to satisfy the concerns of certain so-called ‘small’ member states) and the designation of judges in the court. The source adds that normally such issues can only be solved in the framework of a bigger package, such as a treaty change.
Since no progress is foreseeable, all parties agreed during three-way talks, on 22 May, to separate the increase in the number of judges in the General Court from other non-controversial changes so that the latter can be in place by 8 October, when the membership of the ECJ is to be partially renewed. According to the treaties, judges are named for six years in a staggered manner so that membership can be partially renewed every three years. In October, the mandate of 14 out of 27 judges is due to end. At least ten of these will be renewed.
In the EP’s non-legislative report put together by Alexandra Thein (ALDE, Germany) mention is made to Parliament’s intention to hold a debate on the merits of introducing the possibility of issuing dissenting opinions at the ECJ by those judges who do not agree with the court’s disposition of the case. Both the ECJ and Council oppose this notion.
In order to ease the already “very heavy” workload of both the court president and the presidents of the five-judge chambers, changes to the institution’s statute were suggested by ECJ President Vassilios Skouris. The essence of these requests was then put into a proposal for a regulation by the Commission. Except for increasing the number of judges, Council and Parliament agree with most changes suggested by Skouris.
The ECJ president wishes to create the post of vice-president, allow the presidents of the five-judge chambers not to participate in the cases sent to the large chamber and increase the number of judges who can participate in the work of the large chamber from 13 to 15. He argues that most national and international jurisdictions, such as the European Court of Human Rights, have vice-presidents.
On top of that, the ECJ has identified a weak point in the Civil Service Tribunal (CST): prolonged sick leave. The CST has only seven judges. If one were to be absent for extended periods the CST’s functioning would be “seriously affected”. To remedy this problem, it is suggested that the ECJ’s statute be modified to allow for the possibility to appoint interim judges to the specialised tribunals.