The International Trade Law Review: European Courts 2019-2020 Update
The Court of Justice of the European Union (CJEU)2 and the EFTA Court (collectively, the European Courts) have comparable roles in the administration of justice within the legal orders of the European Union (EU) and the European Free Trade Association (EFTA), pillars of the European Economic Area (EEA).3 They provide authoritative interpretations of EU law and EEA law, resolve disputes of international character between their Member States and the supranational surveillance bodies (the European Commission and EFTA Surveillance Authority) and act as the final arbiters on issues arising from the daily administration of these regional integration systems.4
This chapter highlights some of the most important procedural and other developments at the European Courts in 2019–2020. The chapter's goal is to focus on a selection of general issues touching the judicial organisation and procedure of these courts. This chapter first presents recent procedural developments in the two courts; second, it describes some of the measures that these courts have established in response to the outbreak of the covid-19 pandemic in spring 2020; third, it notes some of the effects that Brexit has produced – specifically, in respect of the European Courts; before presenting its conclusions in the final section.
II RECENT PROCEDURAL DEVELOPMENTS
i EU Courts: introduction of 'leave to appeal' procedure
An important step for the management of the Court of Justice's docket was taken in April 2019 with the introduction of a 'leave to appeal' mechanism to the EU Courts' appeals procedure.5 Until then, all rulings of the General Court had been, in principle, challengeable before the Court of Justice on appeal. This is no longer necessarily the case. As of 1 May 2019, the Court of Justice itself decides whether an appeal should be allowed to proceed to full review in certain cases involving, namely, agency decisions in trademarks, plant varieties, chemicals, and aviation safety. Indeed, in such cases, the complaint has already been considered on appeal twice – initially by an independent board of appeal of the concerned agency or body and subsequently by the General Court. As such, the rationale for the procedural reform is that a third-level review by the Court of Justice, while it remains a possibility, is not always necessary.
Following its adoption, the leave to appeal mechanism is now found in Article 58a of the Statute of the CJEU, which is complemented by new Articles 170a and 170b in the Court of Justice's Rules of Procedure.6 In essence, a special chamber of the Court of Justice decides on whether an appeal is allowed to proceed in cases where it is brought against a ruling of the General Court concerning a decision of an independent board of appeal of the European Union Intellectual Property Office (EUIPO), the Community Plant Variety Office, the European Chemicals Agency or the European Union Aviation Safety Agency, or a decision of any such board of appeal that may be set up later within an office or agency of the Union. Since it targets litigation on decisions of significant agencies, the procedure has important ramifications. However, the fact that it can be applied in future to procedures involving other EU bodies renders it even more noteworthy.
On a practical level, to be allowed to proceed, the appeal must raise an issue that is 'significant with respect to the unity, consistency or development of European Union law'.7 There is now case law on the new procedure. As recapped in Case C-613/19 P, Dr Ing hc F Porsche AG v. EUIPO, the Court of Justice has emphasised that the burden is on the appellant to demonstrate in detail how the relevant criteria are met.8 It has also, rather logically, insisted that the appeal must raise genuinely significant issues of law going beyond the mere legal correctness of the decision under appeal to be allowed to proceed in this exceptional review procedure.9 The criteria are reminiscent of the 'serious risk of the unity or consistency of Union law being affected' test of the review procedure in Article 256(2) of the Treaty on the Functioning of the European Union.10 As such, although the wording is not identical, inspiration for interpreting the condition for allowing appeals to proceed could be sought in the Court of Justice's case law on the review procedure.
Although the new procedural device is unlikely to produce, at this stage, critical efficiency gains at the Court of Justice, its significance should not be underestimated, particularly since it allows, as explained above, its extension to an open-ended category of appeals concerning decisions of other EU bodies. Because of this flexibility, the new procedural device has potential to become – if not an overarching mechanism of docket control – nonetheless an important tool for managing the appeals in various significant fields of administrative regulation. If, for example, in the future, a board of appeal for EU staff matters were created, the mechanism could relieve the Court of Justice of the full review of all the staff appeals it currently deals with following the transfer of jurisdiction from the defunct EU Civil Service Tribunal to the General Court. The future development of the leave to appeal mechanism merits close attention.
ii EFTA Court: Rules of Procedure under revision
The process of revising the EFTA Court's Rules of Procedure remains ongoing. Its current Rules of Procedure remain virtually unchanged from those in effect on the date of the Court's founding in 1994. The process of revision was revealed in July 2018 when the EFTA Court's proposal for amendment of its Rules of Procedure was opened for public consultation.11 The EFTA Court stated that its proposal was made '[i]n light of the revision of the European Union General Court's Rules of Procedure in 2016' and 'so as to accommodate certain changes and update the existing provisions, as pertinent'.12
A number of submissions were received from EEA State governments and Bar associations during the consultation period, which closed in October 2018. Subsequently, the proposed revised Rules of Procedure have been amended internally in light of the comments received. The proposals, some of which also necessitate amendments to the Statute of the EFTA Court,13 will be put forward to the governments of the EFTA States for their approval by common accord in due course.14
III SPECIAL COVID-19 MEASURES
i EU Courts: remote judicial activity
As the covid-19 pandemic has ravaged the whole of Europe and beyond, the EU Courts have had to adapt their judicial activity to the new social reality. As of mid-March 2020, the CJEU closed its premises to visitors, established remote working for its staff and postponed oral hearings.15 On Luxembourg's Kirchberg plateau, the Palais de la Cour de justice and its adjacent buildings were quickly emptied of all but the most essential personnel. A sign of continuity of the judicial activity remained the weekly delivery of judgments and Advocate General's opinions in the empty courtrooms.16 Hearings were resumed at the end of May ahead of the summer break, with new hygiene and social distancing protocols in place.17
The EU Courts have continued to issue judicial output even under the exceptional circumstances. To the extent that an interruption in the organisation of oral hearings has no bearing on cases where either the hearing has been held or where no hearing is organised in the first place, this is not surprising. That said, the CJEU seems to be adapting to the new reality rather gracefully: remarkably, the new Advocate General Richard de la Tour was sworn into his functions as planned on 23 March 2020 in a video-conferenced ceremony.18 Also, remote working continues for much of the staff and the judges' deliberations are, apparently, conducted remotely.19
It remains to be seen whether the current situation will produce a more lasting impact on the modus operandi of the CJEU. While the European Court of Human Rights in Strasbourg regularly broadcasts video recordings of its hearings on its website, the CJEU has been averse to the idea of streaming oral hearings.20 At the Supreme Court of the United States, the pandemic witnessed the first oral arguments by teleconference, with the audio broadcast online in real time.21 The pandemic has led to more openness at the American Court – which for a long time dismissed the idea of live broadcasting – as well as to some inquiries about the new modalities before the Court.22 Even if at present there are no signs of a major shift on this front at the CJEU, who knows what may happen if the situation is prolonged.
ii EFTA Court: introduction of remote hearings and streaming
The EFTA Court has responded in a number of ways to the covid-19 pandemic. These responses have been internal, procedural and technological. Internally, the President of the Court decided on 17 March 2020 to close the premises of the Court in light of the pandemic and the emergency measures undertaken by the Luxembourg authorities. This decision was renewed on several occasions.23 On 20 May 2020, the President decided to reopen the premises partially as of 2 June. As regards procedural deadlines, on 19 March 2020, the EFTA Court decided, 'in light of the exceptional circumstances caused by the outbreak of COVID-19, to prolong the deadline for submission of written observations under Article 20 of the Court's Statute from two to three months'. The Court further decided on 26 May 2020 that 'in all cases, which will be served pursuant to the said Article of the Statute, as of 1 August 2020, the deadline for submission will be reverted back to two months'.24
In light of the closure of the Court's premises, as well as covid-19-related travel restrictions, including quarantine periods across Europe, the EFTA Court has adopted two distinct procedures for those cases in which an oral hearing would have been scheduled: a supplementary written procedure or a remote hearing. First, supplementary written submissions were used in Cases E-10/19 Bergbahn Aktiengesellschaft Kitzbühel v. Meleda Anstalt and E-13/19 Hraðbraut. The Court decided to dispense with the oral hearings in accordance with Article 97(4) of the EFTA Court's Rules of Procedure 'in the current extraordinary circumstances due to the Corona virus pandemic'. Instead, it issued measures of organisation of procedure to compensate for the lack of an oral hearing by providing the parties with the opportunity to provide supplementary written submissions, confined to the scope of what would be presented at an oral hearing.25 Further supplementary measures of organisation of procedure may subsequently be issued should the Court have questions to put to the parties.
Second, the EFTA Court's very first remote hearing was held on 16 June 2020 in Joined Cases E-11/19 and E-12/19 Adpublisher AG v. J and K. A second remote hearing was held on 7 July 2020.26 These remote hearings were conducted via Zoom, with the judges and registrar robed, and sitting in a socially distanced fashion, in the courtroom. Remarkably, these remote hearings were also streamed on the Court's website to ensure that the proceedings were conducted publicly – a first for the European Courts. 'Guidelines for Participants' have been issued, which note that the conduct of remote hearings are subject to the same rules as generally applicable to oral hearings at the EFTA Court.27 However, counsel are expected to wear business attire rather than court dress. While the President directs the conduct of the remote hearing, the technical control is undertaken by the administrator who, under the President's direction, activates or deactivates the microphones and cameras. As with physical oral hearings, pre-hearing preparatory meetings are held between counsel or agents and the judges. These preparatory meetings remain private and are not streamed. A transcript of the proceedings is prepared for subsequent internal use, as with ordinary hearings.
The two fully remote hearings held thus far were very successful. The remote hearings, and their streaming, are an undoubted technological leap and perhaps transformational. It is too early to assess their long-term effectiveness or whether they may supplant ordinary hearings in the future. Nevertheless, the ability to stream hearings truly opens the Court's proceedings up to the world. From autumn 2020, the Court may also consider streaming ordinary hearings held in the courtroom to the Court's website.
IV IMPACT OF BREXIT
i EU Courts: departure of UK members
On 31 January 2020 at midnight, the United Kingdom left the European Union. This meant that the UK judges at the EU Courts were obliged to leave their posts. Indeed, the EU treaties indicate that the Court of Justice has 'one judge from each Member State' and the General Court 'at least one judge per Member State'.28 Logically, then, as the United Kingdom was no longer a Member State, its judges had no legal basis to serve on the EU bench. This was also foreseen in the eighth introductory recital of the EU–UK Withdrawal Agreement, which referred to 'the end . . . of the mandates of all members of institutions . . . of the Union nominated . . . in relation to the [United Kingdom]'s membership'.29 In consequence, the UK-nominated judges Christopher Vajda and Ian Forrester left their posts immediately as their Member State's withdrawal took effect.
The situation of the third UK-nominated member of the EU Courts, Advocate General Eleanor Sharpston, was different. Two days before Brexit, on 29 January 2020, the Conference of the Representatives of the Governments of the Member States, without a UK representative, issued a declaration on the post-Brexit organisation of the rotation of the posts of the Advocates General among the remaining Member States. They indicated that the vacated post of Advocate General Sharpston would pass to the general rotation between smaller Member States and would be taken up next by Greece.30 On Brexit day, the CJEU issued a press release specifying – on its face as a transitional measure – that Advocate General Sharpston would 'continue to hold office . . . until her successor takes up his or her duties'.31 However, Advocate General Sharpston has since brought actions for annulment against these acts of the Council of the European Union, the Conference of the Representatives of the Governments of the Member States and the CJEU, challenging the legality of the precipitated end of her judicial mandate.32
ii EFTA Court: transitional measures
The government of the United Kingdom and lawyers authorised to practise before a court of the United Kingdom have appeared regularly before the EFTA Court over the years.33 Article 63(1) of the EEA EFTA Separation Agreement,34 signed by the United Kingdom and the EEA EFTA States on 28 January 2020, provides that:
'[w]here, before the end of the transition period, a lawyer authorised to practise before the courts of the United Kingdom represented or assisted a party in proceedings before the EFTA Court or in relation to requests for advisory opinions referred to it before the end of the transition period, that lawyer may continue to represent or assist that party in those proceedings or requests. This right shall apply to all stages of proceedings'.35
The term 'transition period' is defined in Article 2(h) of the EEA EFTA Separation Agreement. It 'refers to the time period in Article 126 of the EU–UK Withdrawal Agreement, including as extended in accordance with Article 132 of that Agreement if applicable'. That period currently runs until 31 December 2020.
Specific rules on court procedures have been adopted as a consequence. On 30 January 2020, the EEA EFTA States amended the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (Surveillance and Court Agreement) (SCA) by adding Article 44a and Protocol 9 to the SCA.36 These provisions entered into force on 25 June 2020. Article 44a SCA provides that '[s]pecial provisions regarding the withdrawal of the [United Kingdom] from the European Union and the EEA Agreement are laid down in Protocol 9 to this Agreement'.37
Paragraph 1 of Article 1 of Protocol 9 to the SCA, provides that the EFTA Surveillance Authority and EFTA Court shall 'for the duration of the transition period, continue to treat the United Kingdom as if it were a Member State of the European Union for the purposes of the EEA Agreement, its protocols and annexes'. The two-pillar nature of the EEA is emphasised by the understanding of 'transition period' given in Paragraph 2 of Article 1 of Protocol 9 to the SCA. It provides that Paragraph 1 shall continue to apply if the EU–UK transition period is extended 'provided that the EFTA States continue to treat the United Kingdom as if it were a Member State of the European Union for the purposes of the EEA Agreement . . . until the end of the extended transition period'. Such an extended transition period has, however, been ruled out by the UK government.38
In light of the above, the United Kingdom remains able to appear before the EFTA Court for the remainder of 2020. Slightly differently, lawyers authorised to practise before a court of the United Kingdom remain able to represent or assist a party in a case brought before the Court before the end of the year.
Thus far, 2019 and 2020 have been evolutionary for the European Courts. Significant and substantial procedural changes are afoot or have taken effect. The covid-19 pandemic has affected how the European Courts operate in innumerable ways. Their responses to the difficulty in holding standard hearings, in particular the use of remote hearings at the EFTA Court, may prove the basis for long-term changes as to how justice at the European level is delivered. Finally, the impact of Brexit is some time away from being fully appreciated. Yet, as Advocate General Sharpston's litigation reveals, Brexit's myriad legal consequences are reaching the European Courts in ways that few could have expected or anticipated.
1 Michael-James Clifton is a barrister (England and Wales, and Ireland) and Chef de Cabinet in the Chambers of Judge Bernd Hammermann of the EFTA Court, and Pekka Pohjankoski, Esq (NY) is a researcher at the University of Helsinki faculty of law. The views expressed are entirely personal to the authors.
2 The Court of Justice of the European Union comprises the Court of Justice and the General Court (collectively, the EU Courts).
3 The EEA Agreement now brings together the 27 EU Member States and the three EFTA States (Iceland, Liechtenstein and Norway) who have signed the EEA Agreement. Switzerland, an EFTA State, is not party to the EEA Agreement.
4 On the relationship between the two courts, see, for example, C Baudenbacher, 'The EFTA Court and Court of Justice of the European Union: Coming in Parts but Winning Together', in A Rosas, E Levits and Y Bot (eds), The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-law (T.M.C. Asser Press, 2013).
5 See generally on the EU Courts' appeal procedure, Caroline Naômé, Appeals Before the Court of Justice of the European Union (Oxford University Press, 2018).
6 See Regulation (EU, Euratom) 2019/629 of the European Parliament and of the Council of 17 April 2019 amending Protocol No. 3 on the Statute of the Court of Justice of the European Union, OJEU L 111, 25.4.2019, p. 1, and Amendments of the Rules of Procedure of the Court of Justice, OJEU L 111, 25.4.2019, p. 73. Consolidated versions of the texts can be accessed on the CJEU's website curia.europa.eu.
7 Article 58a(3) Statute of the CJEU, Article 170a(1) of the Court of Justice's Rules of Procedure.
8 Case C-613/19 P, Dr. Ing. h.c. F. Porsche AG v. EUIPO, EU:C:2019:905, para. 13 et seq.
9 See ibid. para. 18.
10 The CJEU has also acknowledged the similarity of wording. See Proposed amendments to Protocol No. 3 on the Statute of the Court of Justice of the European Union, Doc 7586/18 of the Council of 28 March 2018, p. 8.
11 EFTA Court 'Consultation, the EFTA Court's Rules of Procedure', 5 July 2018, https://eftacourt.int/press-publications/consultation-the-efta-courts-rules-of-procedure/. A full version of the proposed revised Rules of Procedure opened for public consultation may be found here: https://eftacourt.int/wp-content/uploads/2019/01/EFTA_Court_Draft_RoP_04072018.pdf.
12 EFTA Court 'Consultation, the EFTA Court's Rules of Procedure', 5 July 2018, https://eftacourt.int/press-publications/consultation-the-efta-courts-rules-of-procedure/.
13 Article 44 of the Statute of the EFTA Court.
14 Article 43(2) of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice.
15 CJEU Press Release No. 46/20 'The Court of Justice of the European Union adapts in order to guarantee the continuity of the European public administration of justice', 3 April 2020, p. 1.
16 A Rettman, 'EU courts still issuing verdicts despite pandemic' EU Observer, 26 March 2020.
17 CJEU Press Release No. 51/20 'Continuity of the European public administration of justice: the Court of Justice of the European Union provides for hearings to resume from 25 May 2020', 27 April 2020.
18 CJEU Press Release No. 46/20 'The Court of Justice of the European Union adapts in order to guarantee the continuity of the European public administration of justice', 3 April 2020, p. 2.
19 A Rettman, 'EU courts still issuing verdicts despite pandemic' EU Observer, 26 March 2020.
21 Supreme Court of the United States Press Release, 13 April 2020.
22 For example, a New York Times columnist speculated: 'Were the justices sitting on their respective living room couches, clad in black bathrobes? Were the lawyers standing at lecterns built of empty Amazon boxes, speaking to cutouts of the justices taped to the fridge?' J Wegman, 'Live From D.C., It's the Supreme Court!' The New York Times, 4 May 2020.
23 On 30 March 2020 (to 15 April), on 15 April (to at least 5 May) and on 4 May (until at least 20 May).
25 For example, in Case E-10/19 Bergbahn Aktiengesellschaft Kitzbühel v. Meleda Anstalt, the Measures of Organization of Procedure issued on 20 May 2020 were made pursuant to Article 49(1) of the EFTA Court's Rules of Procedure and in accordance with Article 49(3)(a) and (b) and Article 97(4) EFTA Court's Rules of Procedure.
26 In Case E-9/19 Abelia and WTW AS v. EFTA Surveillance Authority.
27 EFTA Court, 'Remote Oral Hearing – Guidelines for Participants', June 2020.
28 Article 19(2) of the Treaty on European Union.
29 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, OJEU C 384I, 12.11.2019, p. 1.
30 Declaration by the Conference of the Representatives of the Governments of the Member States on the consequences of the withdrawal of the United Kingdom from the European Union for the Advocates-General of the Court of Justice of the European Union, Doc XT 21018/20 of the Council of 29 January 2020.
31 CJEU Press Release No. 10/20 Consequences of the United Kingdom's withdrawal from the European Union for the Court of Justice of the European Union', 31 January 2020.
32 See Cases T-180/20, JE v. Council and Conference of the Representatives of the Governments of the Member States, and T-184/20, JE v. Court of Justice of the European Union.
33 The UK government most recently appeared before the EFTA Court in Case E-1/19 Gyrre v. The Norwegian Government, represented by the Ministry of Children and Equality, judgment of 14 December 2019.
34 Agreement on arrangements between Iceland, the Principality of Liechtenstein, the Kingdom of Norway and the United Kingdom of Great Britain and Northern Ireland following the withdrawal of the United Kingdom from the European Union, the EEA Agreement and other agreements applicable between the United Kingdom and the EEA EFTA States by virtue of the United Kingdom's membership of the European Union (the EEA EFTA Separation Agreement).
36 Protocol 9 to the SCA may be found here: https://www.efta.int/sites/default/files/documents/legal-texts/the-surveillance-and-court-agreement/agreement-annexes-and-protocols/Protocol-9-withdrawal-of-UK.pdf.
37 Article 44a SCA may be found in the latest consolidated version of the SCA, available here: https://www.efta.int/sites/default/files/documents/legal-texts/the-surveillance-and-court-agreement/Surveillance-and-Court-Agreement-consolidated.pdf.
38 B Moens, 'UK formally rejects Brexit transition period extension', Politico 12 June 2020 1.51pm CET, updated 10 July 2020 1.16pm CET, available at https://www.politico.eu/article/uk-formally-rejects-brexit-
transition-period-extension/, last accessed 19 July 2020.