Luxembourg, 23/04/2002 (Agence Europe) - Three months after the Liberos ruling was issued, no case has been handed to a single judge of the Court of First Instance, all have at had least three judges, in the chamber. Legal experts see in this the end of the "single" judge that the Court of first Instance (CFI) presented in a press release as necessary, due to the "CFI's burden of work, which since its creation, has considerably increased". Created in 1999 and enshrined in the CFI's rules of procedure, the "single judge" was to be handed so-called easy or repetitive cases. But the rules of procedure provided for an exception: the single judge can never rule in a case in which an individual or company disputes the legality of an "act with a general scope".
In 1996, Alain Liberos, newly recruited by the European Commission, was unhappy with his classification in the European civil service which, according to him, did not take account of his professional experience. He had, therefore, disputed the 1983 decision setting the criteria that had been applied to him. A "single judge", in this case the CFI's President, Bo Versterdorf, had rejected his case. Alain Liberos had then appealed to the European Court of Justice. In January 2002, the Court's fifth chamber, presided over by the Austrian judge, Peter Jann, considered that this 1983 decision, as limited as it was - in the sense that it only set classification criteria in the civil service - was an act of general scope, as, he said, it comprised "legal effects" regarding the categories of persons being envisaged in a general and abstract manner.
The Commission recommended a more restrictive interpretation: the decision was only an administrative text on which could not be conferred the nature of an act of general cope. For the experts, the Liberos ruling renders the appeal nigh impossible, in the sense that the smallest of service notes now enter in the category of acts of a general scope.
A Court out of steam
Observers stipulate that legal circles have simply noted the "end" of the single judge. Considered by some as a "gadget", it seems that even within the CFI some judges have never been in favour of it, as, to them, it diminished the prestige of an "international" tribunal. Lawyers also viewed the single judge as second class justice that made them uneasy vis-à-vis their clients.
The CFI is nevertheless deprived of a working tool, even though it was ineffective (in 2001, out of more than 300 cases judged, only 12 were judged by a single judge).
EUROPE has reason to believe hat the CFI is facing a situation described by some as disastrous. It has to take on an enormous task: in cases of competition, company concentrations and State aid, notably (in 2001, 42 cases of State aid and 39 cases of competition were lodged before the Court out of a total of 327 cases), CFI judges must study the facts and legal reasoning spread over tens of thousands of pages of documents. And all that, observers note, in a climate of almost permanent tension with the Court of Justice.
The Council acknowledged that the CFI's staff needed increasing. It promised it 6 additional judges. But six judges to be distributed between 15 Member States was no easy task: one practical solution consisted in giving a judge to "large" countries and rotating the other judges between "small" countries, which the latter - Portugal, Austria and especially Finland - are said to have rejected out of hand. As we stand, there is no more question of additional judges. We shall have to wait for the entry of new Member States to find a solution. However, for cases of civil servants - which make up about a third of cases before the CFI - the Nice Treaty will allow, as soon as it takes effect, for the creation of a special chamber for this kind of case.
Finally, worth noting that in the draft budget 2003, we find the creation of positions of clerks, one for each judge, so as to help them in preparing rulings. Currently, the judges of the CFI have two clerks, the judges of the Court of Justice have three.