Is it time for reform ?

The Court of First Instance of the European Communities is celebrating its 20th anniversary


Marc Jaeger

Marc Jaeger, President of the Court of First Instance


On 25 September 2009, at a colloquium held in Luxembourg, the Court of First Instance of the European Communities will celebrate 20 years since it was established, or more precisely since its first judges took up their duties after taking an oath before the Court of Justice of the European Communities on 25 September 1989. Yet, having barely reached the age of maturity, the Court of First Instance must already prepare the ground for reform made necessary by the systematic increase in its caseload.

Further to a decision of the Council in October 1988, the creation of the Court of First Instance pursued a threefold objective: to equip the European legal system with a court for hearing actions requiring close examination of complex facts; to establish a second court in order to improve the judicial protection of individual interests; and to enable the Court of Justice to concentrate its activities on its fundamental task of ensuring uniform interpretation of Community law. This is how, initially, the Court of First Instance was allocated the task of hearing, amongst others, cases on competition law.

Over the years, that jurisdiction has been progressively enlarged to the point that today, with few exceptions, the Court hears all the actions brought by individuals, companies and the Member States against decisions adopted by the institutions and bodies of the European Union. Thus at first instance, for it remains subject to review by the Court of Justice on questions of interpretation of the law, the Court of First Instance has the essential task of ensuring compliance with the law by the decision making bodies of the Union (in particular the Commission) in a considerable number of areas. This of course covers competition law, which consists in preventing companies from adopting a course of conduct harmful to the consumer, and where recent actions concerning the IT sector, the record industry or air transport have had a considerable impact. Moreover, it can be seen that the Court of First Instance is today a key player not only in the economic life of companies, but also in sectors as diverse as security, fundamental freedoms, the environment and health, since it reviews Commission decisions relating to the compatibility with the Treaties of State aid to companies; disputes about the registration of Community trade marks; measures to protect trade; citizens' access to the documents of the institutions; decisions to freeze the funds of persons linked to terrorist organisations; measures to reduce greenhouse gas emissions; and the prohibition on placing phytopharmaceutical substances on the market.

However, this does not mean that every person is entitled to bring an action before the Court of First Instance to challenge any act of the Union where it is not addressed to him and does not adversely affect his specific interests. In particular, measures of general application (such as European directives) may not as a rule be contested directly, but their lawfulness may be called into question in the course of an action against individual measures, in particular national ones, by which they are applied. Community law does not therefore recognise the actio popularis, brought in the general interest, and requires applicants to show that their rights are directly and individually affected if their actions are to be admissible. To the European citizen, such a requirement may appear to restrict access to justice (it should, however, be noted that if the Lisbon Treaty enters into force, it should appreciably widen access to the Community Courts, since it relaxes the conditions governing the admissibility of actions for annulment). Nonetheless, the regime is one which is found in many legal systems, and seeks to ensure that the courts hear only cases in which the applicants' interest in bringing legal proceedings is based on a real situation and which, in the European court system devised by the Treaties, confers on the national courts the role of intermediary in the application, and review of the lawfulness, of Community law.

Such a division of jurisdiction is all the more necessary since the Court of First Instance is, ultimately, a small court in terms of number of personnel. Comprising 27 judges, the Court of First Instance functions with the help of fewer than 300 officials and other staff. That figure must be contrasted with the Court's obligation to be able to handle cases in the 23 official languages of the Union, but also with the specific features of the cases before the Court. By their nature, these concern files which are particularly voluminous and economically or technically complex, requiring a meticulous examination of the facts, and sometimes having a decisive impact on an entire sector. Above all, the Court of First Instance is faced with a long term combination of factors (including the new jurisdiction over actions brought by the Member States, the large increase in the number of Community trade mark cases and, more generally, the enlargement of the Union and the Community's increased legislative activity) which has led to an unprecedented increase in the number of cases brought. The figures speak for themselves: the number of new cases brought each year before the Court of First Instance rose from 238 in 1998 to 466 in 2003 and 629 in 2008, an increase of over 160% in the space of 10 years.

In the face of the mounting judicial backlog, measures were taken to increase the efficiency of the Court. These included the establishment of three additional chambers; optimising the scheduling of hearings; simplifying procedure in Community trade mark cases; more concise drafting; and the upgrading of statistical and IT tools. There was accordingly a discernible increase in the number of cases completed in 2008. However, this has not prevented the slow yet inexorable rise in the number of cases pending and, consequently, an increase in the duration of proceedings, which is a real indicator of whether a judicial system is in good health. Indeed, the right to have one's case decided within a reasonable time is a fundamental right, intrinsic to the very notion of justice. The Court of Justice itself had occasion to state, in a judgment of 16 July this year, that the Court of First Instance had in the case under appeal exceeded the reasonable period of time within which a litigant is entitled to expect judgment to be delivered.

A real challenge is therefore posed to the Court of First Instance, which must evolve and adapt to the new reality of the cases before it. This is absolutely vital if the Court is to be able to continue to perform fully the role assigned to it. Two avenues are available: the first would consist in radically redefining the Court's very conception of its decisions. It could condense them in the extreme, without setting out the multiple stages in reasoning or replying in detail to all of the arguments raised. To my mind, that cure would be worse than the disease. In the complex areas with which it deals, where much is at stake, the Court of First Instance has built its legitimacy on the intelligibility, transparency and reasoning of its case-law. In the background, there is the idea that a judicial decision must not only determine the dispute before the court, but also enable stakeholders, whether private or institutional, to understand, accept and adapt to the legal environment outlined by the court in interpreting and applying the law.

It is therefore the second avenue which should be explored, namely that of reforming the judicial structure. With regard to the Court of First Instance, the Treaties have laid down two mechanisms for meeting the pressing need to increase judicial productivity to a level which can be maintained: increasing the number of judges, and the staff at their disposal, or creating a new, specialist court with jurisdiction over a specific area, to be ceded by the Court of First Instance (similar to what has already happened, in 2005, with Community staff cases). Intellectual property litigation (in particular Community trade mark cases) could lend itself to such a transfer of jurisdiction.

Whichever option is selected, however, the Court of First Instance does not hold its destiny in its own hands. The decision is one for the political bodies of the Union: the Council and, if the Lisbon Treaty enters into force in the meantime, the European Parliament. There can be no doubt that, mindful of the Union's respect for the principle of the rule of law, of which the smooth operation of the justice system is one of the fundamental guarantees, the Council and the Parliament will be responsive to the alarm raised by the court, and that they will, in reaching their decision, have the foresight to be guided by the interest of citizens.