In an interesting and provocative editorial comment entitled 'Effective Judicial Protection through Adequate Judicial Scrutiny—Some Reflections' [Journal of European Competition Law & Practice (2013) 4(6): 453-454], Advocate General Eleanor Sharpston comments on the difficulties that the Court of Justice of the EU faces in its endeavor to uphold the right to effective judicial protection enshrined both in the European Convention of Human Rights (art 13) and in the Charter of Fundamental Rights of the European Union (art 47)--which, in competition law enforcement, also involves some due process guarantees of Article 6 ECHR.
Basically, AG Sharpston is concerned with whatever can be done to ensure that effective judicial review of competition law sanctions does not produce unreasonable delay and thus defeats the purpose of the exercise.
By reference to recent cases in which the review conducted by the General Court has been challenged on the basis of the fundamental right to obtain judicial review within a reasonable time, AG Sharpston offers a rather detailed account of the practical difficulties and burdens derived from the way the EU Courts work and explores potential avenues of (institutional) reform that could alleviate those constraints. Maybe not surprinsingly, after considering that incremental change (or change by means of internal reform) has clear limits, AG Sharpston suggests that the EU Courts (particularly the General Court) should grow in terms of available judicial manpower and that the members of the EU Courts should be given more continuity and stability in their appointments. A political economy analysis of these proposals may be interesting (is it not in the essence of any institution to aim to grow and perpetuate itself?), but is not what I consider more interesting after reading the editorial. I think that there are two elements in AG Sharpston's reflections that deserve some emphasis.
On the one hand, I think that this is a case that shows the need for some clear boundaries in what active members of the judiciary in its highest ranks, such as an Advocate General, may say and publish. There is a clear need for them to thread lightly and think carefully about the (personal) opinions that they decide to make public. I say this because, in a very provocative passage, AG Sharpston advances a 'creative' solution to the problem of the excessive workload of the EU Courts in the following terms:
the advocate pleading competition cases before the EU courts, or the in-house adviser analysing the merits of challenging a Commission decision or lodging an appeal—can also make a major contribution towards ensuring that the courts function effectively and smoothly and can deliver effective judicial review. Please (I beg you) consolidate your arguments and only run with the points that have some real substance to them. Don't put in an application with six grounds of appeal, each divided into several sub-points (you know, and I know, that not all are of equal merit!). Please plead succinctly and clearly (think of translation!) and please don't throw in an additional 600 pages of annexes in case something there might help to swing the case your way. And, by the way: please don't appeal a clearly hopeless case to the Court of Justice just to show the client that you've tried everything you can. We too are worried about our workload—particularly the part of that workload that consists of wholly unmeritorious or manifestly inadmissible appeals—and we are looking at ways to streamline how we deal with such cases. You have been warned.
This half friendly, half jokingly-made warning may not be totally void of an underlying truth (in some cases at least), but many (myself for one) may see it as rather confrontational and such undercover criticisms of the bar may not sit well with non-UK practitioners. Moreover, it may put the Advocate General in a difficult situation when she has to intervene in cases where she may want to consider the claims unmeritorius (surely, if everybody is warned, she may feel more at ease to hand down rather blunt opinions, won't she?).
But, more importantly, I think that AG Sharpston is caught in the 'thinking inside the box' approach that she somehow criticises when she dismisses the potential for incremental change (or change by means of internal reform) to contribute to alleviate the current (permanent?) excessive workload of the EU Courts. Most of her views, and those expressed more generally by the CJEU when it comes to the interpretation and application of Articles 6 & 13 ECHR or 47 CFREU derive from the premise that
'[These rights are] increasingly frequently invoked by individuals claiming individual rights under EU law. [They are], however, no less a right for ‘undertakings’ (ordinary businesses) who fall foul of the competition rules and who find themselves on the receiving end of adverse decisions' (emphasis added).
I beg to fundamentally disagree with AG Sharpston on this crucial point. As I submitted in The EU’s Accession to the ECHR and Due Process Rights in EU Competition Law Matters: Nothing New Under the Sun?, undertakings (or companies) deserve a relatively more limited protection than individuals under the ECHR and, more specifically, under Article 6(1) ECHR—at least as regards non-core due process guarantees, such as the standard of review applicable to the revision of competition law decisions. In my opinion, only by acknowledging this and redimensioning the procedural guarantees granted to undertakings can the system be made manageable and the workload of the EU Courts rationalised and focused in areas of EU Law that require more effort and investment in terms of (human capital, judicial) resources. By following in the path dependence of granting undertakings full protection (ie implicitly, by making them beneficiaries of 'corporate human rights'), the problems can only become more and more intractable.
This is an issue on which I am conducting further research (which I hope to be able to publish soon) but, for the time being, suffice it to say that I consider AG Sharpston's editorial comment a clear indication of the fact that the CJEU does not seem to be aware that it is putting a nose around its neck by part-taking in the inflation of 'corporate human rights'--just as it is doing by favouring the hypertrophy of the preliminary reference mechanism, as already criticised here. If it wants to be part of the solution, maybe it could well start by minimising the problem.