PUBLISHED ON EU LAW ANALYSIS ON Friday, 3 July 2015
by Steve Peers
The classic British comedy Fawlty Towers derived its humour from the doomed attempts of the ill-tempered hotel owner Basil Fawlty to control the uncontrollable situations that developed around him, often taking out his frustrations on his waiter, Manuel. No one would seriously suggest emulating Basil Fawlty’s management style. But nevertheless, the debate over the reform of the Court of Justice is increasingly resembling a Fawlty Towers episode.
Let’s review. After several previous failed attempts at reforming the EU judicial system, the Court of Justice suggested that the lower EU court (the General Court) should have double the number of judges – two per Member State, instead of one. The EU’s civil service tribunal (with seven judges) would close down, merged into the General Court. The senior Court of Justice would retain one judge per Member State. For the background, further details and arguments in favour, see my earlierblog post.
This proposal was opposed by many staff in the General Court. So four General Court judges appeared before the European Parliament to object to this plan (let’s call them, collectively, ‘Manuel’). For discussion of Manuel’s counter-arguments, see the recent blog post by Professors Pech and Alemanno; and for Manuel’s written argument itself, see here.
Very recently the proposal was formally adopted by the Council. But it still has to be agreed with the European Parliament (EP), and some Members of the European Parliament (MEPs) appear to have great misgivings, fuelled by the dissenting judges. Cue an angry response by the CJEU’s President Skouris (let’s call him ‘Basil’). As documented by Duncan Robinson in the Financial Times, hecomplained that the EP was willing to listen to the rebels, and threatened retaliationagainst the dissenting judge. Manuel might soon get whacked by that frying pan.
With the greatest respect, there are profound problems with Skouris’ approach. First and foremost, his response has become the story (it’s also been covered elsewhere). This diverts attention from the pros and cons of the argument for CJEU reform. I’m not criticising the journalists – it’s their job to report on his response, and he should have anticipated the effect it would have. Also, now that his response has become the story, it gives the impression that the proposal is a greedy grab for money by the judges. In fact. as I pointed out in my earlier post, the CJEU had previously suggested fewer extra judges. It only asked for doubling the number in despair, when it became clear that Member States could not agree on a more modest number, due to national egotism.
Secondly, Skouris’ angry letters give the impression that the CJEU is an authoritarian institution. Certainly, any ordinary employer would not take kindly to public criticism of its policy by its staff. For instance, if (entirely hypothetically) I had objections to the management of the University of Essex, I would not air them in a public forum. But the CJEU is a public body, in a political system whose legitimacy is clearly fragile. These attempts to silence dissent surely damage the Court’s authority more than the dissent itself would. Anyway, they gave that dissent far more publicity than it would otherwise have had (the well-known ‘Streisand effect’).
Thirdly, by attacking the dissenters instead of countering their arguments, it gives the impression that there is no good argument in favour of the Court’s proposals, since the brave truth-tellers are being silenced. And in tactical terms, it’s particularly hard to see how attacking the very MEPs whom Skouris needs to convince to support his proposals will win them round. Continue reading