Antitrust Alert: EU to Reform European General Court
The long-awaited reform of the General Court is now a reality. Currently undergoing a progressive expansion, the General Court will double in size from 28 to 56 judges by 2019. This significant increase will remedy the backlog in caseloads and excessively lengthy proceedings that have plagued the General Court's judges and parties alike.
In the first of a three-step process, the General Court is expanding by 12 judges, under the terms of the Regulation to reform the General Court (Regulation) of December 2015. This first step is largely complete, with only two more judges yet to be appointed. Next, in September 2016, seven more judges will join, following the merging of the General Court and the Civil Service Tribunal, which addresses EU civil service cases. The remaining nine judges will take office in September 2019.
Britain's Brexit vote brings uncertainty as to the General Court's ultimate headcount. By the time the UK's exit from the EU is finalized, it is possible that the additional British judge, expected to be appointed in 2019, will have taken office. Depending on the terms of the withdrawal agreement, Britain's two judges may have their terms prematurely terminated, which would reduce the number of judges at the General Court from 56 to 54.
Shaping the reform. The General Court reform has been driven by concerns of equal Member State representation achieving balanced gender representation:
- Member State representation. While the two-fold expansion of the General Court has faced criticism as excessive, this approach allayed Member State fears of under-representation. Indeed, such apprehensions derailed a previous proposal to add only 12 judges, based solely on merit, not nationality. Now each Member State is assured two judges sitting at the General Court.
- Gender balance. The "high importance" of gender balance within the General Court is explicitly noted in the preamble to the Regulation. Thus, with respect to the partial renewal of the General Court every three years, the Regulation states that Member States should "gradually begin to nominate two Judges for the same partial replacement with the aim of choosing one woman and one man." (Recital 11).
A return to five-judge panels. In anticipation of the arrival of 19 new judges by September 2016, the General Court has adopted various measures to foster swift, thorough and consistent judicial review. The greater number of judges allows the return to the General Court's original structure, whereby five-judge panels will hear all appeals. The shortage of judges and case backlogs had led to three-judge panels hearing most cases.
Under the reform measures, which will take effect in September, the General Court will be composed of nine Chambers of five judges. Each Chamber shall sit in two formations of three judges, as presided over by the President of the Chamber of five judges. While three-judge panels will thus be retained, the reform also facilitates the referral of cases to five-judge panels for cases of particular importance.
Potential to alleviate backlogs at the Court of Justice. The reinforced General Court could also enable it to taking over certain preliminary rulings, whereby national judges seek guidance on the interpretation of EU law. Such rulings are now reserved to the Court of Justice of the European Union (CJEU). However, requests for preliminary rulings have doubled in the past years, and the transfer of some of these to the General Court could help to tackle cases pending before the Court of Justice. These may include cases involving questions such as product classifications for import tariffs.
Benefits to litigants, particularly in competition cases. Litigants have suffered from the absence of an adequate body of judges at the General Court. Long delays in proceedings have led to aggressive procedural streamlining, to clear through masses of pending cases, with a consequent curtailing of parties' rights. Protracted proceedings have also given rise to some €26 million in damages claimed against the CJEU for delayed judgments. The newly expanded General Court is expected to improve both the speed and quality of case handling. As the new structure will allow more cases to go before five-judge panels, this will particularly benefit complex and fact-intensive cases, such as antitrust cases. Given this strengthened capacity to deal with such challenging cases, a rise in the number of competition cases is anticipated, as litigants gain greater confidence in the effectiveness of proceedings before the General Court.
For more information, please contact your principal Jones Day representative or either of the lawyers listed below.
Bernard E. Amory
Jones Day prepares summaries of significant antitrust enforcement, litigation, and policy events as a service to clients and interested readers, to provide timely insight on antitrust and competition law developments relevant to business, but not as legal advice on any specific matter. Please visit our Publication Request form to add your name to our distribution list.