Evolution & Effort: Docket Control & Preliminary References in the European Court of Justice

2 Colum. J. Eur. L. 49 (1995)

Sarah E. Strasser. Attorney, Wachtell, Lipton, Rosen & Katz, J.D. 1995, Harvard Law School, B.A. (Juris.) Hons, Oxford.

Litigation patterns in the Community suggest that the need to reform the European Court of Justice is becoming increasingly urgent, as the volume of cases brought to the Court steadily expands, and delays in their adjudication increase. Indeed, the Court cannot continue to hear all cases brought to its attention. If delays are allowed to rise, the legitimacy of the Court itself will be endangered. It has been said of the European Commission that “the mills of Brussels grind very slowly indeed.”1 The same might be said of Luxembourg, especially from the view of an outsider. The purpose of this study is to examine the trends which contribute to the duration of adjudication, and to suggest ways in which the Court and the Community might improve the situation.

This is not to say that the increased demands on the Court of Justice do not also indicate positive developments. The rising “popularity” of the Court as a forum is Janus-faced in its causes and effects. In 1971, fourteen years after the adoption of the Treaty of Rome, the Court observed that the “distinct increase in the volume of litigation” in that year, “apparent in all spheres of Community judicial activity … undoubtedly suggests that Community law is coming to have a practical impact.” But at the same time, the Court has become the “victim of its own success,” as the very number of cases which have proved the acceptance of its jurisdiction have put the Court under a great deal of pressure. It is this dichotomy which must be addressed. The growing case load has contributed to mounting and significant delays, despite the transfer of entire categories of cases to the Court of First Instance.” Whether the Court system is equal to the demands of the Community, both procedurally and structurally, is a natural question.

These concerns are particularly relevant to the Court’s treatment of cases brought under Article 177 of the Treaty, which provides for interlocutory actions in the European Court of Justice to suits brought before Member State courts. In these cases, the Court considers questions of Community law which are thought essential to determine issues involving Community law that arise before a national court. Just as the rising number of cases generally brought to the Court illustrates the growing influence of Community law, so does the increase in preliminary references. Moreover, given the delays and case backlog endemic to the Article 177 system, these actions provide a useful perspective from which to reconsider the Community judicial system.’ Article 177 is the Court’s primary means of exercising judicial control, as it forms an important link between Member State and Community legal systems. The Court of Justice, through the preliminary reference process, is able to give authoritative rulings on the meaning and effect of the Treaty and other instruments of Community law, as long as a national court recognizes such a ruling is essential to the resolution of a domestic dispute. In turn, Article 177 gives national courts a means of “removing the obstacles which inhibit proper application of Community law within the national framework,” by enabling them to ask for official interpretations of unfamiliar but relevant laws.

If the smooth functioning of the reference procedure is essential to the efficacy of the Community legal system, then significant delays in the delivery of rulings pose a potentially serious problem. Preliminary references are merely interlocutory to the main action; only once the Court of Justice delivers an answer may the domestic court resume its own adjudicatory process. Since the preliminary reference procedure functions through a co-operative process between national courts and the Court of Justice, the obligation to minimize delays thus falls on both national courts and the Court of Justice. Mutual responsibilities apply to each: national courts must refer a clear and justiciable question, and the Court must render a helpful ruling.’

In tension with the effort to encourage centralized Community law and a constructive national-Community court relationship are concerns of efficiency and prompt adjudication. In 1993, the Court took an average of over twenty months to deliver preliminary rulings. This delay has had serious consequences, causing some Member State courts to refrain from makingreferences,” in one case on the grounds that the issue before the national court would be moot by the time the Court delivered its decision.

These delays have a direct impact on the uniformity of interpretation and application of Community law. Efficiency – defined here as the ability to deliver decisions within a reasonable period of time – is thus closely bound up with the effectiveness of the rulings and of the Court itself. If national courts are discouraged from making references, the Court will be denied the opportunity to consider what may be important questions. The obligation of national courts to make references is within their discretion and should be fostered to retain the usefulness and integrity of the system. The problem of delay is not simply the fault of the Community judiciary, however. As will be discussed below, national courts are also responsible for the growing case load and increased delays.

The expansion of the Union and the addition of substantive areas to the Court’s jurisdiction cannot but exacerbate the present situation. Moreover, as the ability of the Court to deliver prompt decisions drops, so will the normative impact of those decisions. The German Bundesverfassungsgericht, the English House of Lords, and the United States Supreme Court command a higher level of authority in part due to their limited output, which helps to limit long waiting periods. The experiences of other supreme courts has shown that once the number of cases exceeds a certain, indeterminate level, the ability of lower courts to absorb the impact of their jurisprudence declines, the perceived significance of each decision drops, and the respect for and reputation of the supreme court as the ultimate arbiter of the law disintegrates. This process may have already begun to take hold of the Court of Justice.

This paper does not suggest that the Court has failed to take actions to remedy the problems of case backlog. Indeed, the contrary is more accurate. With time, the Court has changed its method of approaching references, interpreting the facts and national law presented in references more strictly when making rulings. The result has been “a tightening of the conditions imposed on national courts when they refer questions,” so to assist the Court
to render a helpful and informative ruling. The Court has also tightened its internal procedure and has given special priority to the expedition of preliminary rulings. Nevertheless, there are still areas in which the Court’s strategy could be adjusted to further reduce the amount of time spent in adjudication. The reforms discussed below take three basic forms: targeting case volume, focusing on the management of cases at the national level, or focusing on the management of cases at the Community level. Under each of these headings, a number of options is available. No single approach provides a magic answer to the Court’s problem; in all likelihood, the most successful solution would incorporate a combination of reforms. As the adoption of any single option or combination thereof depends on political reality, this study highlights policy concerns associated with possible reforms, as well as evaluating the practical efficacy of each alternative.

The following analysis is divided into three sections. Part I lays out the background data, focusing on the actual numbers of cases brought to and decided by the Court and the Tribunal. Part II briefly discusses the policy considerations invoked by docket control in the Court. Part III, which forms the bulk of this study, systematically presents and analyzes the numerous areas in which control of the Court’s case load might be asserted. The mechanisms required, as well as the possible success of these alternatives, form part of this discussion. Part III is intended as a guide, not a prescription. Specific blueprints for reform are thus suggested in an appendix to the main study, rather than in the main text.