ISSN 1062-7421
Vol. 12 No. 5 (May 2002) pp. 233-235.


THE FUTURE OF THE JUDICIAL SYSTEM OF THE EUROPEAN UNION by Alan Dashwood and Angus Johnston (Editors). Oxford: Hart Publishing, Co., 2001. 268 pp. Cloth $70.00. ISBN: 1-84113-241-1.

Reviewed by Kenneth Holland, Department of Political Science, The University of Memphis.

This anthology grew out of a conference organized by the Centre for European Legal Studies (CELS) housed at Cambridge, England, in July 1999. The topic of the conference was the reform of the judicial system of the European Union (EU). Two developments have put the reform of the European Court of Justice (ECJ) and the Court of First Instance (CFI) on the policy agenda: a rapid increase in the tribunals' caseload and the impending enlargement of the EU from its current complement of 15 member states to as many as 30 within a few years.

The editors are law professors at the University of Cambridge, specializing in European law. The speakers at the conference who contributed papers to the edited volume are the solicitor general of the United Kingdom (U. K.), a U. K. cabinet office legal adviser, two British law professors (from the University of Essex and the University of Birmingham), an advocate general of the European Court of Justice, a judge of the Court of First Instance of the European Communities, an official of the Finnish Ministry of Justice, a Dutch law professor and a former judge and president of the European Court of Justice. No social scientists were involved in the
conference and none contributed to the anthology. The editors do a good job in laying out the issues surrounding reform of the two European courts briefly in a preface and more fully in a later chapter, entitled "Synthesis of the Debate."

The writing is more exhortatory than expository. Nearly everyone involved in the conference supported substantial judicial reform. As students of the European courts, practitioners before them and members of the courts, the participants have a vested interest in the tribunals' power and prestige. The primary audience, then, is the policy makers for the European Union and the governments of the member states. Political scientists who study courts or international relations, nevertheless, will find the volume of interest. Since 1952 the judicial component of European integration has grown in responsibility and impact. The ECJ and CFI now make decisions affecting individuals, not just governments and business enterprises. The European courts provide an effective mechanism for resolving disputes over
the meaning of treaties and can serve as a model for other treaty-based regimes, such as the World Trade Organization and United Nations.

The book is a collection of documents as well as conference papers. The editors include as appendices (1) amendments to the ECJ's Rules of Procedure, approved by the Council of the EU in May 2000; (2) "The Future of the Judicial System of the European Union," a document containing proposals for change

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submitted by the ECJ to the IGC on May 10, 1999; (3) a report by a working party appointed by the European Commission on the future of the European
Communities' Court System also submitted to the IGC; and (4) European Community treaty articles dealing with the European judiciary. The addition of original sources makes the volume extremely useful for any political scientist trying to understand conflict settlement within the EU and the on-going evolution of the European Community from a free-trade agreement to a federal political system.

One purpose of the Cambridge meeting was to influence the Intergovernmental Conference (IGC) that opened in February 2000 and completed its work in December of that year. There was a concern that the IGC would concentrate on the legislative aspects of enlargement and ignore the needs of the European courts. The IGC, in fact, did address these needs, although not in a comprehensive way. The reforms adopted were of moderate significance. The Treaty of Nice, the product of the Intergovernmental Conference, requires a sharing of jurisdiction between the ECJ and the CFI over direct actions and the establishment of a judicial panel to hear labor grievances brought by officials of the EU. Several speakers at the Cambridge conference recommended both changes. The expansion in the jurisdiction of the CFI will remove some of the caseload burden on the ECJ and allow it to focus on its role as a European "constitutional court." The most important change in the Treaty of Nice regarding the judiciary is the substitution of qualified majority voting for the requirement that all treaty changes dealing with the courts have the unanimous approval of the EU member states. This change will make future judicial reform much more likely.

Collectively, the contributors make a compelling case for reform of the European judiciary. The basic problem is that the Court of Justice was designed to resolve disputes over the meaning of the Treaty of Rome when there were only six members of the European Economic Community. Since 1952, when the court came into existence, the number of member states has grown to 15 and the community has deepened. With the subsequent ratification of the Maastricht Treaty, the Treaty of Amsterdam and the Treaty of Nice, the free trade union has grown into a quasi-federal political union. The European Economic Community is now the European Union, with an executive (Commission), a legislative (Parliament) and a judicial (ECJ) branch. The most recent step toward federalism was the replacement of national currencies on January 1, 2002, by a European currency, the Euro.

The chapters propose a number of specific reforms, some of which present thorny problems for the member states. By tradition, there is at least one judge on the ECJ from each member state. The larger countries send more than one. Currently, 24 judges staff the Court. With 20 or 30 member states sending magistrates to Luxembourg, the Court's seat, the institution may become unwieldy and plenary sessions difficult to manage. As a current judge quipped, enlargement threatens to turn the European court into a deliberative body. One of the thorniest issues is whether to continue the practice of translating all proceedings and judgments into each of the Union's 11 official languages. The average processing time for a case is two years, 8 months of which is caused by translation. Translation services
consume a high percentage of the Court's budget and staff. The larger member states, naturally, favor eliminating this practice, but the smaller member nations, such as Finland, support

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the status quo. Admission of the applicant nations from Central and Eastern Europe could add 12 more official languages, creating a nightmare for the ECJ.

The practice of giving preliminary rulings to national trial and appellate courts has become very burdensome for both the ECJ and national judiciaries, which must await a decision on referred points of law before resolving the case. One proposal is to establish an EU court in each member state with jurisdiction over questions of EU law submitted by national courts. An appeal would be available to the ECJ. There are two difficulties here. One is that this structural change would be a major step toward federalism, a step that the member states are not ready to take, and second is that the ECJ prefers to characterize its relationship to the national
courts as "cooperative" rather than "hierarchical," even though the EU treaties are supreme to all national laws.

Another controversial proposal is to give the ECJ the right to reject appeals from the decisions of the Court of First Instance. The experience of the Supreme Court of the United States is that the freedom to select cases is one of the pillars of the Court's power to shape national policy and thus its prestige. Another possible reform, aimed at reducing delay, is to eliminate oral argument and to rely entirely on written evidence and briefs. Although the Civil law countries favor this change, Great Britain, with its Common Law system, strongly opposes it. The elimination of plenary sessions is another suggestion, but it is not clear how solely working in chambers will achieve the Court's goal of a uniform case law. An additional need is the establishment of a specialized chamber or tribunal to hear patent cases,
which tend to require specialized knowledge. Some speakers called for a loosening of the "standing to sue" limitations on who can bring a case to the ECJ. Most individuals cannot meet these stringent standards.

It is clear that the role of the European Court of Justice has changed from a commercial tribunal, tasked with arbitrating disputes between businesses and governments, into a European constitutional court, entrusted with protecting the institutions and principles of a united Europe and the rights of its citizens. This evolution matches the transformation of the European Economic Community into a quasi-federation, with such federal features as a parliament, an administration, taxing power, common citizenship, common foreign policy and a common currency. What is less clear is whether the process of deepening the union can survive its widening. Will the admission of a dozen new states from the Mediterranean and Central and Eastern Europe overwhelm the current machinery to the point where the EU can function only as a league of sovereign nations? As the present volume emphasizes, the debate over reform of the European judiciary points to the larger issues over the future of Europe itself. It is clear that the structure, function and powers of the ECJ will follow whatever direction that European integration takes.

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Copyright 2002 by the author, Kenneth Holland.