In a batch of impatiently expected Judgments of 26 November 2012, the CJEU has ruled on the procedural and substantial rules applicable to a claim that (competition law) litigation before the General Court was of an 'excessive duration' and, consequently, breached Article 47 of the Charter of Fundamental Rights of the EU. In my view, this is another instance of a rather convoluted legal construction by the CJEU whereby it rejects its jurisdiction (on formal points), but actually addresses the substantial points in a way that leaves no room whatsoever for the GC when the matter is presented before it for a fresh consideraton--and, consequently, raises the question whether the system is sensibly designed to begin with...
In its Judgment in case C-40/12 P Gascogne Sack Deutschland (anciennement Sachsa Verpackung) v Commission, the CJEU has clearly indicated that
89 [...] the sanction for a breach, by a Court of the European Union, of its obligation under the second paragraph of Article 47 of the Charter to adjudicate on the cases before it within a reasonable time must be an action for damages brought before the General Court, since such an action constitutes an effective remedy.
90 It follows that a claim for compensation for the damage caused by the failure by the General Court to adjudicate within a reasonable time may not be made directly to the Court of Justice in the context of an appeal, but must be brought before the General Court itself.
91 As regards the criteria for assessing whether the General Court has observed the reasonable time principle, it must be borne in mind that the reasonableness of the period for delivering judgment is to be appraised in the light of the circumstances specific to each case, such as the complexity of the case and the conduct of the parties (see, in particular, Der Grüne Punkt – Duales System Deutschland v Commission, paragraph 181 and the case-law cited).
92 The Court has held in that regard that the list of relevant criteria is not exhaustive and that the assessment of the reasonableness of a period does not require a systematic examination of the circumstances of the case in the light of each of them, where the duration of the proceedings appears justified in the light of one of them. Thus, the complexity of the case or the dilatory conduct of the applicant may be deemed to justify a duration which is prima facie too long (see, in particular, Der Grüne Punkt – Duales System Deutschland v Commission, paragraph 182 and the case-law cited).
93 In examining those criteria, it must be borne in mind that, in the case of proceedings concerning infringement of competition rules, the fundamental requirement of legal certainty on which economic operators must be able to rely and the aim of ensuring that competition is not distorted in the internal market are of considerable importance not only for an applicant itself and its competitors but also for third parties, in view of the large number of persons concerned and the financial interests involved (see, in particular, Der Grüne Punkt – Duales System Deutschland v Commission, paragraph 186 and the case-law cited).
94 It will also be for the General Court to assess both the actual existence of the harm alleged and the causal connection between that harm and the excessive length of the legal proceedings in dispute by examining the evidence submitted for that purpose.
95 In that regard, it should be noted that, in an action for damages based on a breach by the General Court of the second paragraph of Article 47 of the Charter, in so far as it failed to have regard to the requirement that the case be dealt with within a reasonable time, the General Court must, in accordance with the second paragraph of Article 340 TFEU, take into consideration the general principles applicable in the legal systems of the Member States for actions based on similar breaches. In that context, the General Court must, in particular, ascertain whether it is possible to identify, in addition to any material loss, any other type of harm sustained by the party affected by the excessive period, which should, where appropriate, be suitably compensated.
96 It is therefore for the General Court, which has jurisdiction under Article 256(1) TFEU, to determine such claims for damages, sitting in a different composition from that which heard the dispute giving rise to the procedure whose duration is criticised and applying the criteria set out in paragraphs 91 to 95 above (C-40/12 P at paras 89-96, emphasis added).
So far, the general framework depicted by the CJEU makes sense and, even if it creates a potential problem of conflict of interest derived from the 'self-assessment' required from the GC (despite its seating in a different composition), the remedy is clearly outlined and the material or substantive conditions that should be taken into account are also spelled out in a relatively easy to apply test (although some deference towards lengthy competition litigation seems to be readable between the lines).
However, the temptation ends up being too strong and the CJEU, maybe aware of the intractability of that conflict of interest, cannot refrain itself from actually settling the matter (despite concluding it has to reject the ground for appeal!). Hence, the CJEU carries on to make clear that
97 That said, it must be stated that the length of the proceedings before the General Court, which amounted to approximately 5 years and 9 months, cannot be justified by any of the particular circumstances of the present case.
98 It is apparent, in particular, that the period between the end of the written procedure, when the Commission’s rejoinder was lodged in February 2007, and the opening, in December 2010, of the oral procedure lasted for approximately 3 years and 10 months. The length of that period cannot be explained by the circumstances of the case, whether it be the complexity of the dispute, the conduct of the parties or supervening procedural matters.
99 As regards the complexity of the dispute, it is apparent from examining the action brought by the appellant, as summarised in paragraphs 12 and 13 above, that, while requiring a detailed examination, the pleas relied on did not present any particular difficulties. Although it is true that around 15 addressees of the contested decision brought actions for its annulment before the General Court, that fact could not prevent it from scrutinising the documents in the case and preparing for the oral procedure within a period of less than 3 years and 10 months.
100 It must be pointed out that, during that period, the procedure was not interrupted or delayed by the adoption of any measures of organisation of procedure by the General Court.
101 As regards the conduct of the parties and supervening procedural matters, the fact that the appellant requested, in October 2010, the reopening of the written procedure cannot justify the period of 3 years and 8 months which had already elapsed since it was closed. In addition, as the Advocate General observed in point 134 of her Opinion, the fact that the appellant was notified in December 2010 that there would be a hearing in February 2011 shows that that procedural matter had only a minimal effect on the overall length of proceedings, or even no effect at all.
102 In the light of the foregoing, it must be found that the procedure in the General Court breached the second paragraph of Article 47 of the Charter in that it failed to comply with the requirement that it adjudicate within a reasonable time, which constitutes a sufficiently serious breach of a rule of law that is intended to confer rights on individuals (Case C-352/98 P Bergaderm and Goupil v Commission  ECR I-5291, paragraph 42).
103 It is, however, clear from the considerations set out at paragraphs 81 to 90 above that the fourth ground of appeal must be rejected (sic) (C-40/12 P at paras 97-103, emphasis added).
In my view, even if there is no question that the formal treatment of the claim for damages (ie the ground for appeal) is correct, the fact that the CJEU felt the urge to settle the matter from a substantive perspective shows that the attribution of the competence to hear cases concerned with the excessive duration of litigation before the GC to the GC itself (albeit in a different seating) makes poor sense and is likely to result in almost 100% of cases in a further appeal before the CJEU.
To be fair, if the CJEU assumed the competence from the beginning, other problems derived from a single-step or one-shot system where the claims would be shielded from potential appeals would also arise. So, it looks like we may be facing one of those areas where a clear limitation of the institutional design of the EU Courts seems apparent and where pressure for the future potential referral of the cases to the Strasbourg Court may be felt.