Article, Event review

Unveiling the Mechanics in EU Courts: Centre of European Law Public Lecture – “How EU Judges Behave in Competition Appeals”

Joe Lee, LLM Student (King’s College London), BBA (Law), LLB & PCLL (The University of Hong Kong)

On 5 November 2015, Dr. Angela H Zhang, Lecturer in competition and trade law at the Dickson Poon School of Law, King’s College London, gave a presentation on the topic of “How EU Judges Behave in Competition Appeals” based on her recently published research paper titled “The Faceless Court”.[1]  The lecture examined the career structure and incentives as well as background of EU judges and evaluated how these factors and the design of the EU judicial decision-making process may impact competition appeals. This article discusses the three main parts of the lecture: firstly, the selection, compensation and tenure of EU judges and the role of référendaires; secondly the dominance of French judicial culture in EU courts and lastly the hierarchical design of judicial decision making in EU courts and its impact on the degree of judicial scrutiny.

Firstly, Dr. Zhang commenced the lecture by discussing the career structure and incentives of EU judges and introduced the rather unrecognised role of référendaires in EU courts. On the selection of EU judges, it was observed that there is no “common market” for selecting judges as each member state nominates its own judges. The criteria set out in Articles 253 and 254 of the Treaty on the Functioning of the EU (TFEU)[2] are flexible and the selection procedures are political and not sufficiently transparent. The expert committee established in 2010 under Article 255 TFEU has provided some safeguards to the appointment procedures of judges by listing certain assessment criteria such as a minimum years of involvement in high-level duties and a grasp of the “main aspects of EU law”. However the power of the committee is limited in the sense that it can only issue a non-binding opinion on the candidate proposed by the member states. The inadequacy of these safeguards was further demonstrated by the fact that the majority of EU judges enjoys a large pay rise as a result of their appointment, and thus often attracts political appointees who heavily rely on their référendaires.

Furthermore, the effective working time for EU judges is curtailed by the time needed to get familiar with court procedure and practice (especially for those judges who lack previous judicial experience) and the fact that judges cannot take up much responsibility for about six months prior to their departure. The problem of reduced effective working time is accentuated by the fact that almost half of the EU judges served for no more than six years, which is a relatively short period of time. The rather short tenure coupled with the limited effective working time on the job tends to discourage judges from significantly improving their command of the French language and expertise in EU law, which leads to a further reliance on référendaires. However, such reliance could be problematic.

Référendaires are the assistants to EU judges. Their main duties generally include digesting written submissions, understanding the facts and reasoning of the cases, drafting reports and providing comments. As already mentioned, EU judges rely heavily on référendaires and they play an indispensable part in the judicial decision making process. However, there is no open platform for recruitment of référendaires, rather informal networking is heavily relied on. It was revealed in Dr. Zhang’s research that most of the référendaires share similar educational background from French-speaking countries and their social network is small and closed. So far as working experience is concerned, many of them used to work as linguists or researchers in the Court or had worked for the European Commission (“the Commission”) before. Although the position of référendaires does not guarantee job security and they can be fired anytime, they are paid fairly well (at levels similar to officials at other EU institutions). From the research conducted, Dr Zhang observed that they serve, on average, seven years in position and about one-third of them stayed on for more than ten years. The heavy reliance on référendaires by EU judges, the closed recruitment procedure, the similarity of education background and working experience, the small social network and the duration of employment have all contributed to empowering référendaires with strong influence in judicial behavior. They tend to be the conservative force in the Court. In addition, référendaires are often secondees from the Commission. Although they are required to report any conflict of interest and are not allowed to work on the same matters that they have dealt with before, they are still able to work on other cases from the Commission[3]. This may further contribute to the deferential attitude of the Court to analysis and argument from the Commission.

The second part of the lecture examined the dominance of French judicial culture and its influence on the Court’s behaviour. The Court was modelled on the highest administrative court in France – the Conseil d’État – when it was first established, as five out of six of the founding member states shared the French legal tradition. As such, the French judicial culture enjoyed a “first mover advantage” in the first two decades of the Court’s establishment and had an immense influence on judicial behaviour. The use of French as the Court’s working language has given Francophones an inherent advantage in the judicial system and disproportionate influence on shaping EU law. As discussed above, the background of référendaires is highly similar and they occupy almost half of the positions in the General Court and the Court of Justice. The influence of French judicial culture is manifest in the Court’s conservative and formalistic attitude. This likely stems from the French legal tradition’s emphasis on empowerment of the state, accompanied with a high degree of procedural formalism to restrict the discretion of judges. On the contrary the common law tradition places a focus on protection of private liberty and the judges were given a higher degree of judicial freedom to interpret the legal principles. Although the influence of French judicial culture on EU courts should not be overstated, it should not be neglected in considering the direction of reform to improve the court system.

Following the discussion on the dominance of French judicial culture, the lecture then turned to evaluate the impact of the hierarchy of decision-making on the Court’s rather negative approach to competition appeals. Dr. Zhang argued that the intensity of judicial scrutiny in competition appeals is influenced by the institutional design of the Court. On the one hand the Court of Justice deals with preliminary references where the Court is asked to rule on particular legal questions referred from national courts. These often bear broader legal significance such that the Court could expand its jurisdiction. On the other hand, in appeals from the General Court, the Court is subject to more procedural restraints, such as the lack of discretion to deal with new pleas in law that are not based on matters of law or of fact which come to light in the course of the proceedings. Moreover, competition appeals in practice can be more time and effort consuming for judges and référendaires. Looking at the competition cases handled by the Court of Justice in the last decade, more than 70% were appeals and among them most were cartel cases and the contested issues were mainly on the calculation of fine. These cases tend to be effort intensive, tedious and technical yet without clear legal significance for the broader area, which could result in a lower intensity of judicial scrutiny. On the contrary, competition cases are the “bread and butter” of the General Court and they are more willing to engage in analysis of the parties and conduct more in-depth scrutiny. However, the General Court’s willingness to accept innovative analysis is restrained by the supervision from the higher appellate court. The unfortunate consequence of such hierarchical design is that for those who are willing to innovate or to accept ingenious analysis have no power to do so, and those who have the power have no incentive to do so.

In the concluding remarks, Dr. Zhang called for proposals to reform the selection procedures of judges and the structure of their career, particularly the compensation package and tenure. Furthermore, consideration should be given as to whether French should be used as the only working language of the Court, given that there is no legal hurdle in adding or switching to another working language. The impact of the choice of working language to the quality of judges and référendaires and the consequential disproportionate influence on EU law should not be overlooked. Finally, given the significant power and influence of référendaires on judicial behaviour, the recruitment and management of référendaires should be reformed such that a larger pool of talent can be selected from and the issue of conflict of interest with the Commission should also be addressed.

Dr. Zhang’s research is an important and helpful first step in understanding the “faceless” Court, which is key to improving the jurisprudence of one of the most influential judicial systems in the world. Insightful suggestions were made during the Q&A sessions on further direction of research, such as the empirical implication in changing the working language of the Court and the feasibility of having “economics referendaires” to help the Court in understanding and considering economic and technical analysis put forward by parties.

To conclude, I consider that the introduction of English as the parallel working language of the Court is a less controversial and effective way to reform the judicial decision making process. Instead of replacing the French language in totality, the parallel system could preserve the French legal tradition, which is conducive in maintaining the stability and continuity in the court system, while the concern of avoiding drastic changes can also be addressed. The talent pool of judges and référendaires available to the Court would be significantly enlarged, as English is one of the most widely spoken languages in the EU. The increased number of talents from a more diverse educational and legal background could enhance the competition for judicial positions and hence quality of judicial performance.

[1] Zhang, Angela Huyue, The Faceless Court (October 26, 2015). King’s College London Law School Research Paper No. 2015-45. Available at SSRN: http://ssrn.com/abstract=2640861 or http://dx.doi.org/10.2139/ssrn.2640861

[2] Consolidated Version of the Treaty on the Functioning of the European Union [2008] OJ 115/47 (TFEU)

[3] This is in accordance with the rules of good conduct for référendaires adopted by the Court in 2009. See Décision de la Cour du février 17, 2009 portant adoption des règles de bonne conduite des Référendaires.