The benefits of having individual panels concentrating on specific areas of EU law are clear. There is likely to be much more clarity on specific areas of law. As judges become specialised in the areas to which they are assigned, assuming they are not already highly conversant in the legal matters they are asked to deal with, the panels should be able to expedite cases faster than a more generalised court. The way in which the panels are to be created is also surprisingly well considered and thought out for the EU.
It shows that the individual Governments believe that the EU has more important things to consider than the shape of bananas. Although the creation of the panels and the type of panels to be created has been left in the air, this has been deliberate in order to allow flexibility. Such flexibility is highly important. The panels are voted for by the Council by unanimity. The new system, however, allows the Commission and the Court of Justice to propose panels for the Council's consideration.
It means that, as the ECJ's workload increases in a specific area of EU law, some of that workload can be delegated to a new specialist panel. It should allow for some future proofing of the European Judicial System. The Court of First Instance has received several minor changes. One of the more startling changes has come in the face of rigid historical opposition by the ECJ6, although this stance has softened in recent years7. Nice provides that the CFI may be called upon to give preliminary rulings in areas laid down by Statute.
Again, it is the Council which decides the areas in which the CFI has this jurisdiction. Despite the splitting of jurisdiction over preliminary rulings the recognition of the CFI's sub ordinance to the ECJ is still prevalent in that the CFI can, although it is surprisingly not obliged to, refer any case to the ECJ which requires "a decision of principle likely to affect the unity or consistency of Community Law". 8 Following the creation of the judicial panels, the CFI becomes a Court of Appeal for decisions made by these new institutions.
This is, of course, not an unexpected increase in power as the CFI already acts as Court of Appeal for the Trade Mark Office. The composition of the European Court of Justice remains unchanged insofar that it retains the principle of one judge per Member State. 9 This will continue even after enlargement. Although whether or not this could have any impact on the operation or case load of the ECJ is unclear. It is tempting to consider that more judges will equal greater efficiency but the lack of experience in European matters by the new appointees from the newly acceded nations could provide a hindrance, certainly initially.
The old power of the Council to appoint new judges at the Court's request is now abolished but with the automatic increase in the judiciary afforded by the retention of the principle outlined above, it would unlikely to be of any benefit had it been kept. The small plenary has now become the 'Grand Chamber'. This will consist of eleven judges, with a quorum of nine. These will be presided over by a President of the Court and contain the Presidents of the five-judge chambers.
The latter are now to be elected for three year terms10. The ECJ's jurisdiction in first and final instance cases will be restricted to those brought by Member States, Community Institutions and the European Central Bank. Where it comes to preliminary rulings of the first and final instance variety, as much of the work has now been delegated to the Court of First Instance, the ECJ's jurisdiction in this area will be limited to case types not passed on to the CFI. The ECJ's appellate functions will increase.
They will hear appeal cases referred from the CFI and they will also be able to take on reviews of CFI judgements. These reviews will be of preliminary rulings and also those judicial panel appeals that reached it via the CFI. On the whole there is little to directly criticise within the Treaty and indeed, as pointed out, much to commend. Certainly the changes to the Court structure are amongst the most radical and most welcome changes. The majority of the other amendments have been forced upon the EU by its focus upon enlargement.
Perhaps the only problem that faces the EU and which has not been adequately addressed is the problems caused by its attempt to treat itself as a fledgling super-state, and its attempt to ensure that there is some parity for the population of each Member State. With enlargement on its way, such an attempt to use population as a basis for which to allocate voting power is problematic and is something that may be proven to have been introduced too soon and in haste due to the already powerful voting lobby of the larger states.
It could lead to a two-tier Europe, particularly considering that most of the new Member States have relatively low populations and are former members of the Eastern Block, and which therefore have relatively unsophisticated and underdeveloped economies. It is difficult to see how these new members could benefit from the present QMV voting arrangements within the Council of Ministers. It may well be that further change may be required in this respect. 1 In Loannina in March 1994, the United Kingdom, after initial support from Spain that was later withdrawn, raised an issue relating to voting arrangements for an enlarged EU.
This dispute endangered the accession process of four aspirant member states. Three of these states, namely Austria, Finland and Sweden, were only later admitted after concessions (known as the Loannina Compromise) were made to appease the UK. 2 Article 189 EC, as amended by Treaty of Amsterdam. 3 Article 189 EC, as amended by Treaty of Nice. 4 See Case 297/86 CIDA v Council ECR 3531. 5 "The Future of the Judicial System of the European Union (Proposals and Reflections)", Luxembourg, 1999 6 "Report of the Court of Justice on certain aspects of the application of the Treaty on European Union", Luxembourg, 1995, para. 13.