Expert evidence; Neutral expert evidence; Partisan Expert evidence; Evidentiary rules before EC courts; Contentieux communautaire; Règles de preuve; Expertise
Abstract :
[en] The EC courts are regularly asked to rule on complex scientific and technical matters, as illustrated by cases concerning the foot and mouth crisis or conglomerate effects in merger control. In order to apprehend these technical issues, the EC courts may, like any other court, rely on experts who are appointed either by the courts themselves or by the parties. However, the law on the use of expert evidence by the EC courts is unclear on many aspects. The purpose of this article is therefore to set out briefly the law on expert evidence, to explore how the EC courts use it and to assess whether improvements are desirable.
Section 2 of this article describes how the EC courts use “neutral” expert evidence (i.e., evidence obtained through an expert’s report commissioned by the court). An analysis of the case law reveals a paradox: while the status of neutral expert evidence is clearly defined by the rules of procedure governing the EC courts, such evidence is rarely used in practice. Section 2 therefore also endeavours to explain why the use of neutral expert evidence remains exceptional. Section 3 focuses on how the EC courts use “partisan” expert evidence (i.e., expert evidence that is voluntarily submitted by the parties). It shows that partisan expert evidence is the mirror image of neutral expert evidence: while its procedural status is unclear, it is widely used before the EC courts. Finally, in Section 4, it is argued that this situation is not wholly satisfactory. It is submitted inter alia that there is no convincing justification for systematic self-restraint over technical issues. Some changes are therefore explored which could be contemplated in order to improve the use of expert evidence by the EC courts. [fr] Les juridictions communautaires sont régulièrement amenées à trancher des questions complexes ayant une composante technique ou scientifique, ainsi que l’illustrent les affaires dites de la vache folle ou encore les effets d’une opération de concentration de conglomérat. Pour appréhender ces questions techniques, les juridictions communautaires, pourraient, comme d’autres, s’appuyer sur des experts nommés par elles ou bien engagés par les parties. Toutefois, les règles applicables à l’expertise devant les juridictions communautaires manquent à bien des égards de clarté. L’objet de cet article est donc de présenter le droit communautaire applicable à l’expertise, d’examiner l’usage qu’en font les juridictions communautaires et de se demander si des changements seraient souhaitables.
La première partie de cet article décrit l’usage que font les juridictions communautaires de l’expertise neutre (l’expertise demandée par le juge). L’analyse de la jurisprudence révèle un paradoxe : alors que le statut de l’expertise neutre est clairement défini dans les règles de procédure applicables aux juridictions communautaires, ce type d’expertise est rarement ordonné. C’est pourquoi il faut tenter d’expliquer pourquoi le recours à l’expertise neutre reste exceptionnel, ce qui est également fait dans la première partie. La deuxième partie traite de l’utilisation des expertises partisanes (c’est-à-dire des expertises produites volontairement par les parties) devant les juridictions communautaires. Il y est démontré que l’expertise partisane est le reflet inversé de l’expertise neutre : alors que son statut procédural n’est pas clair, ce type d’expertise est abondamment utilisé dans le contentieux communautaire.
Dans la troisième partie, une critique de l’état du droit positif est présentée. Il y est soutenu qu’il n’y a pas de justification convaincante de la parcimonie avec laquelle les juridictions communautaires ordonnent des expertises. Certains changements envisageables pour améliorer l’utilisation des expertises par les juridictions communautaires sont analysés.
Disciplines :
European & international law
Author, co-author :
Barbier de La Serre, Eric; Latham & Watkins
Sibony, Anne-Lise ; Université de Liège - ULiège > Département de droit > Droit matériel européen
Language :
English
Title :
Expert Evidence before the EC Courts
Alternative titles :
[fr] L'expertise devant les juridictions communautaires
Publication date :
2008
Journal title :
Common Market Law Review
ISSN :
0165-0750
eISSN :
1875-8320
Publisher :
Kluwer Law International, Alphen aan den Rijn, Netherlands
Case C-189/01, Jippes and Others, [2001] ECR I-5689.
Case T-5/02, Tetra Laval v. Commission, [2002] ECR II-4381, and Case C-12/03 P, Commission v. Tetra Laval, [2005] ECR I-113.
See e.g. as regards the hazardous nature of substances, Case T-13/99, Pfizer Animal Health v. Council, [2002] ECR II-3305, paras. 139-163. It is difficult to define what a "technical issue" is, as the technical character of a discipline is partly a subjective matter. This article will consider technical issues as those whose settlement calls for the use of a discipline that requires specialized training in order for a person to attain sufficient competence to understand its aims and methods, and to be able critically to deploy these methods to achieve these aims, to produce the judgments that issue from its distinctive point of view. This definition is based on Brewer's definition of an "expert discipline" (Brewer, "Scientific Expert Testimony and Intellectual Due Process", 107 Yale L.J. (1998), 1535 at 1589). This definition is very broad. It includes not only "hard sciences", like chemistry, biology or toxicology, but also "soft sciences", like economics or psychology.
See Arts. 223, 224 and 225a EC. The Treaty on the Functioning of the EU (O.J. 2008, C 115), does not change these requirements. The only change that would be introduced by the new treaty regarding the appointment of EU judges is procedural in nature. A new Art. 225 provides that a panel will "give an opinion on candidates' suitability to perform the duties of Judge and Advocate-General of the Court of Justice and the General Court [the new name of the Court of First instance] before the governments of the Member States make the appointments". The panel will comprise "seven persons chosen from among former members of the Court of Justice and the General Court, members of national supreme courts and lawyers of recognized competence, one of whom shall be proposed by the European Parliament". The first benefit to be expected from this new procedure is that appointment to the European judiciary will not be governed as much by national political logic as it has sometimes been in the past. This change could have the additional effect of favouring candidates with the best technical knowledge, because former judges and advocates general are well placed to recognize the added value that candidates with technical knowledge relevant to a particular field of European law could bring to EU courts.
On the dynamics of judge-expert cooperation in the French system, see Leclerc, Le juge et l'expert (LGDJ, 2005)
and Dalbignat-Deharo, Vérité scientifique, vérité judiciaire en droit privé (LGDJ, 2004).
In practice, the way the various legal systems deal with expert evidence is more complex. In many if not most common law systems, the courts are allowed to appoint an impartial expert (in the U.S., see Rule 706 of the Federal Rules of Evidence). In the UK, rules of procedure have been amended in the wake of the Woolf Report, which contained the recommendation for "a wider use of 'single' or 'neutral' experts who would be jointly instructed by the parties, or, if the parties could not agree on a single expert, appointed by the court" (Access To Justice, Final Report by The Right Honourable the Lord Woolf, Master of the Rolls, HMSO, 1996, Chapt. 13, at para 3). Rules 35.3 and 35.7 of the Civil Procedure rules give the Courts power to direct that evidence be given by a single joint expert, who has an overriding duty to help the court. Conversely, in the mainland European systems, the parties are usually allowed to submit their own expert evidence. It nonetheless remains that, on average, common law systems rely much more on partisan experts than mainland European systems.
See e.g. the anonymous note "Developments in the Law - Confronting the New Challenges of Scientific Evidence", 108 Harv. L. Rev. (1995), 1481, at 1589, noting that in the U.S. the appointment of experts by the courts is not frequently used.
As regards neutral expert evidence, Jolowicz, "L'expert, le témoin et le juge dans le procès civil en droits français et anglais", (1977) Revue Internationale de Droit Comparé, 285 at 290.
Lasok, The European Court of Justice. Practice and Procedure, 2nd ed. (Buttersworth, 1994), p. 344.
See also MacLennan, "Evidence, standard and burden of proof and the use of experts in procedure before the Luxembourg Courts", in Weiss (Ed.), Improving WTO Dispute Settlement Procedures - Issues and Lessons from the Practice of other International Courts and Tribunals (Cameron May, 2000), p. 265.
See also Art. 45(2)(d) of the Rules of Procedure of the ECJ (hereafter: "ECJ RoP"), Art. 65(d) of the Rules of Procedure of the CFI (hereafter: "CFI RoP") and Art. 57(e) of the Rules of Procedure of the Civil Service Tribunal (hereafter: "CST RoP").
Woolf Report cited supra note 6. The novelty of the rule is captured in the title of Rule 35.4 ("Court's power to restrict expert evidence"). Paragraph 1 of this Rule reads: "No party may call an expert or put in evidence an expert's report without the court's permission". See also Rule 35.7 on the court's power to direct that evidence be given by a single joint expert.
Opinion of A.G. Jacobs in Case C-269/90, Technische Universität München v. Haupt-zollamt München-Mitte, [1991] ECR I-5480, para 13, relying on Art. 103 of the ECJ RoP.
Art. 44(2) of the ECJ RoP, Art. 52(2) of the CFI RoP and Art. 45(2) of the CST RoP.
See, in that connection, Case T-199/01, G v. Commission, [2002] ECR-SC I-A-207 and II-1085, para 61; Case T-180/01, Euroagri v. Commission, [2002] ECR II-369, para 204; Case T-257/02, K v. Court of Justice, unpublished, para 61.
See e.g., Art. 143, 144 and 263 of the French Code de procédure civile and Rule 35.4 of the English Civil Procedure Rules.
See, by analogy, Order in Case 121/86 R, Epicheiriseon Metalleftikon Viomichanikon kai Naftiliakon and Others v. Council and Commission, [1986] ECR 2063, para 17.
Order in Case 318/81 R, Commission v. CO.DE.MI., [1982] ECR 1325, paras. 1-3. See also Order in Case C-106/90 R, Emerald Meats v. Commission, [1990] ECR I-3377, para 29 (refusing the commissioning of a report because it did not appear that the findings could be of any "decisive interest" in the main action); Case C-275/00, First and Franex, [2002] ECR I-10943, para 45.
Lasok, op. cit. supra note 7, at p. 398. See, for additional details on the applicable procedure, Art. 45, 46 and 49 to 53 of the ECJ RoP, Art. 66, 67 and 70 to 76 of the CFI RoP, and Art. 57, 58 and 62 to 67 of the CST RoP. See also Lasok, op. cit. supra note 7, p. 397 to 401 ; and Lenaerts, Arts and Maselis, Procedural Law of the European Union, 2 nd ed (Sweet & Maxwell, 2006), at 24-081 to 24-083, p. 563.
Art. 45(1) of the ECJ RoP, Art. 66(1) of the CFI RoP and Art. 58(2) of the CST RoP.
Art. 49(1) of the ECJ RoP, Art. 70(1) of the CFI RoP and Art. 62(1) of the CST RoP.
Art. 265 of the French Code de procédure civile.
See Rule 35.8: "Where the Court gives a direction under Rule 35.7 for a single joint expert to be used, each instructing party may give instruction to the expert".
See e.g. Joined Cases T-33 & 74/89, Blackman v. Parliament, [1993] ECR II-249, para 18; and Order of 1 July 1991 in the same case (unpublished); Case C-308/87, Grifoni v. EAEC, [1994] ECR I-341, para 4. Complexity of facts is not the sole reason why courts may want to jointly appoint several experts. Joint appointment of several experts who are asked to produce a single report is also a means of narrowing down the scope of the dispute over facts, especially where several scientific methods of interpretation of the facts are competing. On individual experts v. expert groups in the WTO panel context, see Alemanno, Trade in Food - Regulatory and Judicial Approaches in The EC and the WTO (Cameron May, 2007), pp. 350-3 (stressing the advantages of expert review groups).
See Art. 982 of the Belgian Code judiciaire, providing that "the judge shall appoint one single expert unless he deems it necessary to appoint several". The same possibility is afforded, in less restrictive terms, by Art. 264 of the French Code de procédure civile, which states that "one person only is appointed as expert, unless the judge deems necessary to appoint several" (authors' translations). The issue of several court-appointed experts does not seem to give rise to a specific rule in the UK civil procedure rules.
Art. 50(1) of the ECJ RoP, Art. 73(1) of the CFI RoP and Art. 65(1) of the CST RoP. Here again, it can be noted that EC rules bear the imprint of civil law rules, in the sense that this issue does not arise in a system where the parties appoint the expert. In the UK Civil procedure rules, for example, the default rule for choosing a single court-appointed expert is that the parties should agree on the choice of the single expert. When the parties cannot agree, Rule 35.7(3) provides that the court may either choose the expert from a list prepared or identified by the instructing parties or direct that the expert be selected in any other manner as the court chooses.
Art. 50(2) of the ECJ RoP, Art. 73(2) of the CFI RoP and Art. 65(2) of the CST RoP. The statement of objection must set out the grounds of objection and indicate the nature of any evidence offered.
Case T-20/00 OP, Commission v. Camacho-Fernandes, [2003] ECR-SC I-A-75 and [2003] ECR II-405, para 25. It is interesting to note that in at least one instance, the Court took a preventive step and ensured that parties consented to the Court's choice for a court-appointed expert. See Opinion of A.G. Darmon in Joined Cases C-89, 104, 114, 116, 117 & 125-129/85, Ahlström and Others v. Commission, [1993] ECR I-1445, para 333. In this case, the Court also submitted the draft questions to the parties. Ibid. at para 339.
Art. 49(2) of the ECJ RoP, Art. 70(2) of the CFI RoP and Art. 62(2) of the CST RoP. These matters are dealt with similarly under Art. 266-268 of the French Code de procédure civile.
Art. 46(3) of the ECJ RoP.
Art. 67(2) of the CFI RoP and Art. 58(3) of the CST RoP.
Art. 45(2)(e) of the ECJ RoP, Art. 65(e) of the CFI RoP and Art. 57(f) of the CST RoP.
See Woolf Report, "Access to Justice", op. cit. supra note 6, chap. 13, para 11 et seq. (court control over expert evidence) and para 42 et seq. (discussing the issue whether experts' meetings aiming at narrowing the area of disagreement could be held in the absence of the representatives of the parties and of the court).
ECtHR, Judgment of 18 March 1997, Mantovanelli v. France, appl. no 21497/93, para 33.
Ibid., para 35.
Case C-276/01, Steffensen, [2003] ECR I-3735, paras. 77 and 78.
Art. 49(4) of the ECJ RoP, Art. 70(4) of the CFI RoP and Art. 62(4) of the CST RoP.
Art. 45(4) of the ECJ RoP, Art. 66(2) of the CFI RoP and Art. 58(5) of the CST RoP.
Art. 49(5) of the ECJ RoP, Art. 70(5) of the CFI RoP and Art. 62(5) of the CST RoP.
Art. 52 of the ECJ RoP, Art. 75(1) of the CFI RoP and Art. 67(1) of the CST RoP.
Art. 49(6) of the ECJ RoP, Art. 70(6) of the CFI RoP and Art. 62(6) of the CST RoP.
Art. 51(1) of the ECJ RoP, Art. 74(1) of the CFI RoP and Art. 66(1) of the CSTRoP.
Art. 49(2) of the ECJ RoP, Art. 70(2) of the CFI RoP and Art. 62(2) of the CST RoP.
Art. 51 (2) of the ECJ RoP, Art. 74(2) of the CFI RoP and Art. 66(2) of the CST RoP.
Art. 73(a) of the ECJ RoP, Art. 91(a) of the CFI RoP and Art. 91(a) of the CST RoP.
See e.g. Case 12-68, X. v. Audit Board of the European Communities, [1969] ECR 109, para 41 (report commissioned to establish whether at the time of the acts which gave rise to a disciplinary decision, the official sanctioned was mentally disturbed to such an extent as to exclude responsibility for his conduct); Case 18/70, X. v. Council ECR English Spec. ed., 1205, 1207 (psychiatric analysis); Grifoni, supra note 21, para 4 (degree of permanent invalidity); Case T-36/89, Nijmann v. Commission, [1991] ECR II-699, para 12 (on the question whether the failure to inform the applicant of his state of health may have caused him damage); Blackman, supra note 21, para 18 (on whether a remedial teaching program has a medical character); Case T-90/95, Gill v. Commission, [1997] ECR-SC I-A-471 and II-1231, paras. 15 and 35 (certain characteristics of the applicant's lung anomalies); Commission v. Camacho-Fernandes, supra note 25, para 25 (to determine whether lung cancer was an occupational disease); Case T-313/01, R v. Commission, [2004] ECR-SC I-A-129 and II-577, paras. 65, 76, 77, 102 and 103 (on whether medical surgery was made for purely aesthetic purposes).
Joined Cases C-104/89 & C-37/90, Mulder and Others v. Council and Commission, [2000] ECR I-203, para 22 (assessment of the loss of earnings suffered by each of the applicants and determination of the various factors to be applied in calculating the damage); Joined Cases 29, 31, 36, 39-47, 50 & 51/63, Laminoirs de la Providence and Others v. High Authority, [1965] English spec. ed., 911, 939 (assessment of the damage suffered by the applicant); CO.DE.MI (Order), supra note 15 (assessment of the liability incurred with regard to certain breaches of contract and assessment of the damage alleged to have been suffered by each of the parties); Case T-351/03, Schneider Electric v. Commission, judgment of 11 July 2007, nyr, para 324 (assessment of the costs incurred by the applicant to re-notify the merger and due to the differed sale of Legrand).
Case 23/81, Commission v. Royal belge, [1983] ECR 2685, para 7.
Case T-169/89, Frederiksen v. Parliament, [1991] ECR II-1403, paras. 38 and 73-78.
Case 785/79, Pizziolo v. Commission, [1981] ECR 969, para 17.
Case C-169/84, Cdf Chimie et Fertilisants v. Commission, [1990] ECR I-3083, para 10.
Case 10/55, Mirossevich v. High Authority, [1954-1956] English spec. ed. 333, 343.
Joined Cases 24 & 34/58, Chambre syndicale de la sidérurgie de l'est de la France v. High Authority, [1960] English spec. ed., 281, 293.
As of 1 Jan. 2008.
Case 48/69, ICI v. Commission, ECR 619, 647; Case 49/69, BASF v. Commission, ECR 713, 726; Case 51/69, Bayer v. Commission, ECR 745, 766; Case 52/69, Geigy v. Commission, ECR 787, 819; Case 53/69, Sandoz v. Commission, ECR 845; Case 54/69, Francolor v. Commission, ECR 851, 868; Case 55/69, Cassella v. Commission, ECR 887, 907; and Case 57/69, ACNA v. Commission, ECR 933, 944.
Ahlstrom supra note 25.
Joined Cases T-68, 77 & 78/89, SIV and Others v. Commission, [1992] ECR II-1403, para 43 ("As regards the assessment of the market, the parties agreed to place in the common file, by common accord, all the statistics needed for an appreciation of the functioning of the Italian and European flat-glass markets. They agreed that it would not therefore be necessary to commission an expert's report in that regard").
Case T-342/99, Airtours v. Commission, [2002] ECR II-2585; and Tetra Laval, supra note 2.
Case T-138/98, ACAV and Others v. Council, [2000] ECR II-341, para 72.
Ibid., para 72, and Case T-68/99, Toditec v. Commission, [2001] ECR II-1443, para 40.
Case C-136/02 P, Mag Instrument v. OHIM, [2004] ECR I-9165, paras. 76 and 77. See, however, Case C-119/97 P, Ufex and Others v. Commission, [1999] ECR I-1341, paras. 110 and 111.
Lasok, op. cit. supra note 7, p. 366 to 372.
Ibid., p. 369.
Joined Cases 19 & 65/63, Prakash v. Commission of the EAEC, [1965] English spec. ed., 533, 554. See, as regards an action for failure to fulfil obligations, Case 141/87, Commission v. Italy, [1989] ECR 943.
Case 51-65, ILFO v. High Authority, [1966] English spec. ed., 87, 96 (in the French version "un commencement de preuve suffisant"); Case T-266/94, Skibsvaerftsforeningen and Others v. Commission, [1996] ECR II-1399, para 200; Case T-26/91, Kupka-Floridi v. CES, [1992] ECR II-1615, para 55; Case T-92/91, Henrichs v. Commission, [1993] ECR II-611, paras. 28,29; Case T-106/95, FFSA and Others v. Commission, [1997] ECR II-229, para 115; Order in Case T-228/99 DEP, WestLB AG v. Commission, unpublished, para 88.
See e.g. Case T-132/89, Gallone v. Council, [1990] ECR II-549; Case T-7/90, Kobor v. Commission, [1990] ECR II-721.
ACAV, note 56 supra, para 72, and Toditec, note 57 supra, para 40.
See e.g. Joined Cases 6 & 7/73, Istituto Chemioterapico Italiano and Commercial Solvents v. Commission, [1974] ECR 223, para 22; Case T-11/89, Shell v. Commission, [1992] ECR II-757, para 363; Joined Cases T-305, 306, 307, 313, 316, 318, 325, 328, 329 & 335/94, LVM v. Commission, [1999] ECR II-931, para 749; Case T-199/99, Sgaravatti Mediterranea v. Commission, [2002] ECR II-3731, para 139; K, supra note 12, para 61.
Joined Cases T-61 & 62/00, APOL v. Commission, [2003] ECR II-635, para 124.
Case T-26/89, De Compte v. Parliament, [1991] ECR II-781, para 228; Case C-114/94, IDE v. Commission, [1997] ECR I-803, para 53.
Order in Emerald Meats, supra note 15, para 29.
Case T-1/92, Tallarico v. Parliament, [1993] ECR II-107, para 74. MacLennan, op. cit. supra note 7, at p. 279.
Cdf Chimie et Fertilisants, supra note 48, para 28.
Pizziolo, supra note 47, para 14. See also Prakash, supra note 61, 554 ("In questions of nuclear research, it is not for the Court to decide whether or not a particular set of apparatus is sufficient for undertaking a given piece of research. If necessary, it would have to appoint an expert for that purpose").
Opinion of A.G. Jacobs in Technische Universität, München, supra note 10, para 13 ("the technical nature of a case should not cause the Court to forsake its duty, under Article [220 EC], to ensure that the law is observed. The Court cannot shy away from technical questions and must in an appropriate case be prepared to resolve such questions by commissioning an expert's report").
"Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance. Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgment - often of great consequence - about a particular set of events in the past. We recognize that in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes." Daubert v. Merrell Dow Pharmaceuticals (92-102), 509 U.S. 579 (1993), 597.
Lasok, op. cit. supra note 7, p. 344 ("[t]he Court is not bound in any and every case to carry out a detailed investigation into every conceivable question of fact. Its duty to ensure that the law is observed is tempered by the need to ensure that cases are decided expeditiously so that justice is not denied by delay").
SIV, supra note 54, para 43. Conversely, an expert's report may be commissioned when the parties provide contradictory information concerning certain facts in issue (Cdf Chimie et Fertilisants, supra note 48).
Mulder, supra note 44, para 64 (on the hypothetical nature of the facts to be proven), para 67 (agreement on the principles which must govern the method of calculating loss of earnings) and para 73 (agreement on the sources of the relevant data and figures to be taken into account).
Joined Cases C-204, 205, 211, 213, 217 & 219/00 P, Aalborg Portland and Others v. Commission, [2004] ECR I-123, para 279. To the same effect, see Case 42/84, Remia and Others v. Commission, [1985] ECR 2545, para 34, and Joined Cases 142 & 156/84, BAT and Reynolds v. Commission, [1987] ECR 4487, para 62.
Technische Universität München, supra note 10, para 13. See also Case C-120/97, Upjohn, [1999] ECR I-223, paras. 33 and 34 (complex assessments in the medico-pharmacological field).
Pfizer Animal Health, supra note 3, paras. 168 and 169.
Case T-201/04, Microsoft v. Commission, judgment of 17 Sept. 2007, nyr, para 88, citing Order in Case C-459/00 P(R), Commission v. Trenker, [2001] ECR I-2823, paras. 82 and 83 (complex appraisals in the medico-pharmacological sphere); Upjohn, supra note 78, para 34 (revocation of a marketing authorization for a medicinal product); Case T-179/00, A. Menarini v. Commission, [2002] ECR II-2879, paras. 44 and 45 (suggesting that a restriction on the scope of judicial review is justified if it calls for "particular expertise or technical knowledge") and Pfizer Animal Health, supra note 3, para 323 (complex assessment in the medico-pharmacolog-ical field). See also Order in Case C-471/00 P(R), Commission v. Cambridge Healthcare Supplies, [2001] ECR I-2865, paras. 95 and 96 (complex assessment in the medico-pharmacological field).
House of Lords, European Union Committee, "An EU Competition Court", Report with evidence, Judge Cooke's Reply to Question 411 ("Under 'Measures of Inquiry' we have the possibility of appointing experts ad hoc for specific cases. In point of fact, it has been very rarely used. I remember some years ago, there was a period of time when we had an in-house economist on the staff of the Court. The idea was that reporting judges dealing with complex competition issues could consult the economist and get a view. In fact, it was very little used because many of the colleagues, particularly the continental colleagues, were very nervous about consulting outside the knowledge of the parties. There was doubt because in judicial review we are judging the legality of the Commission's decision as of the date it was taken and in accordance with the facts and arguments before the Commission at the time. There was something of a reticence amongst one's continental colleagues to introduce into the case file material which was not part of the Commission's case file. I think I am correct in saying it sort of withered away as an approach").
Technische Universität München, supra note 10.
Opinion of A.G. Jacobs in Technische Universität München, supra note 10, paras. 10 and 11.
Technische Universität München, supra note 10, para 13.
Ibid., para 14. These guarantees include the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case, the right of the person concerned to make his views known and to have an adequately reasoned decision.
Opinion of A.G. Jacobs in Technische Universität München, supra note 10, para 15.
Ibid.
According to A.G. Jacobs, such measure of inquiry is available in preliminary proceedings (Ibid., para 13).
The same kind of approach was taken in public staff cases for medical appraisals of medical committees, on the substance of which the EC courts exert no control in view of the institutional guarantees offered by such committees (ibid., para 49, citing Case 156/80, Morbelli v. Commission, [1981] ECR 1357, para 19, and Case 265/83, Suss v. Commission, [1984] ECR 4029, para 11).
Pfizer Animal Health, note 3 supra, para 393.
Ibid., paras. 157 to 159, 162, 165 and 268.
Case 75/85, V.R. v. Commission, [1986] ECR 2775.
Ibid., para 15. See also Gallone, supra note 63, paras. 24 and 27 to 29 (implicitly).
Sibony and Barbier de La Serre, "Charge de la preuve et théorie du contrôle en droit communautaire de la concurrence: pour un changement de perspective", 43 RTDE (2007), p. 205, at p. 245. A margin of appreciation can be found inter alia in the fields in which the Commission orients a specific policy (e.g., competition, agriculture).
The EC courts' judicial restraint in this case is rightly imposed by the constitutional structure of the EC (Biondi and Harmer, "Scientific Evidence and the European Judiciary", in Biondi et al. (Eds), Scientific Evidence in European Environmental Rule-Making (Kluwer, 2003), p. 51).
Frederiksen, supra note 46, paras. 73 to 75.
Case C-35/92 P, Parliament v. Frederiksen, [1993] ECR I-991, para 19.
Frederiksen, supra note 46, para 20 (emphasis added).
Cdf Chimie et Fertilisants, supra note 48, paras. 28 to 51.
Rule 201(b) of the Federal Rules of Evidence. On the "narrow confines" of judicial notice in EC law, see Rasmussen, On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Martinus Nijhoff Publishers, 1986), p. 434.
Lasok, op. cit. supra note 7, p. 437.
Case T-194/01, Unilever v. OHIM, [2003] ECR II-383, para 48.
Ibid., para 48. See also Case T-398/04, Henkel v. OHIM, unpublished, para 29.
Case C-136/02 P, Mag Instrument, supra note 58, para 30, citing inter alia Joined Cases C-456 & 457/01 P, Henkel v. OHIM, [2004] ECR I-5089, para 38. See also Case T-129/04, Develey Holding v. OHIM, [2005] ECR II-811, para 47.
Case T-305/04, Eden v. OHIM, [2005] ECR II-4705, para 25.
Joined Cases T-183 & 184/02, El Corte Inglés v. OHIM, [2004] ECR II-965, para 81; Case T-15/05, Castell del Remei v. OHIM, unpublished, para 54.
Case C-251/95, SABEL, [1997] ECR I-6191, para 23.
Case T-97/05, Rossi v. OHIM, [2006] ECR II-73*, paras. 44 and 45 (stating that, as far as signs consisting of a first name and surname are concerned, perception can vary from country to country and it cannot be ruled out that, in some countries, consumers will remember the last name rather than the first name and vice versa. Interestingly, the court adds that this "general rule", which stems from experience cannot be applied in an automatic manner, without taking due account of specificity of the case at hand). On the notion of "rule of experience", see Rigaux, La nature du contrôle de la Cour de cassation (Bruylant, 1966), no 75, p. 112.
Other examples can be found in the following cases: Case C-39/97, Canon, [1998] ECR I-5507, paras. 18 and 19 (a strong reputation increases the risk of confusion); Case C-342/97, Lloyd Schuhfabrik Meyer, [1999] ECR I-3819, para 26, and Case T-43/05, Camper v. OHIM, [2006] ECR II-95*, paras. 67 and 79 ("the Court confirms once again ... that the members of the relevant public, composed of average Danish and Finnish consumers, usually understand English as well as Danish, Finnish and/or Swedish. Therefore, that public must be considered to understand the English meaning of the word 'brothers'") and para 91 ("the average consumer only rarely has the chance to make a direct comparison between the different marks but must place his trust in the imperfect picture of them that he has kept in his mind. [T]he average consumer's level of attention is likely to vary according to the category of goods or services in question"); Case T-334/03, Deutsche Post EURO EXPRESS v. OHIM, [2005] ECR II-65, para 36 ("origin is not an essential characteristic of goods and services relating to postal transport. The geographical origin of goods in Classes 16 and 20, which are, essentially, goods intended for packaging of items of all kinds, is manifestly not a characteristic which determines the consumer's choice, which will be made on the basis of factors such as the dimensions of the packaging or its durability"); Case T-286/03, Gillette v. OHIM, unpublished, para 60 (stating that, as far as cosmetics of the type at hand are concerned, clients usually choose products themselves in stores; accordingly, the visual perception of brands occurs before the purchase and therefore the visual aspect of a brand is more important in assessing the risk of confusion than the phonetic or conceptual aspects); Case T-147/03, Devinlec v. OHIM [2006] ECR II-11, para 77 ("in the large majority of cases the relevant public will be confronted with the mark applied for at the time of purchase of watches, and as a general rule the marks are represented on the faces of those watches") and para 82 ("the relevant public is made up of average French consumers, who cannot be presupposed to have knowledge of Latin and of pronunciation, which is in any case inconsistent, of Latin words"); Case T-278/04, Jabones Pardo v. OHIM, [2006] ECR II-90*, para 56 (stating that, nowadays, cosmetics serve several functions relating inextricably to hygiene, aesthetics and pleasantness of touch or smell).
Develey, supra note 103, para 19.
Case T-185/02, Ruiz-Picasso and Others v. OHIM, [ECR] 2004 II-1739, para 29; Case C-25/05 P, Storck v. OHIM, [2005] ECR I-5719, para 51 ("Whilst it is in principle the task of [the competent bodies of OHIM] to establish in their decisions the accuracy of such facts, such is not the case where they allege facts which are well known").
Case T-259/02, Raiffeisen Zentralbank Österreich v. Commission, [2006] ECR II-5169, para 87.
Case T-217/03, FNCBV v. Commission, [2006] ECR II-4987, para 55.
Gerber, "Courts as economic experts in European Merger Law", in Hawk (Ed), International Antitrust Law & Policy (Fordham Corp. L. Inst., 2003), p. 475, referring to Airtours, supra note 55; Case T-310/01, Schneider Electric v. Commission, [2002] ECR II-4071; and Tetra Laval, supra note 2.
Case 27/76, United Brands v. Commission, [1978] ECR 207. Sibony, Le juge et le raisonnement économique en droit de la concurrence (LGDJ, 2008), no 544 and 545.
This argument is also put forward by Alemanno, "Science and EU risk regulation: The role of experts in decision-making and judicial review", in Vos, European risk governance: its science, its inclusiveness and its effectiveness (Connex report series, 2008), p. 64. The author also mentions two other reasons for the reluctance of EC courts to appoint experts. One is specific to cases in which the decision under review is based on the scientific advice of an EC committee or agency. In this case, Alemanno explains that the courts may refrain from appointing experts because they do not want to appear critical of the institutional or scientific legitimacy of those committees or agencies. The other reason mentioned by this author is more general as it relates to judicial tradition: in the Court, a judge rapporteur who were to propose the appointment of an expert might appear excessively innovative.
Gutiérrez, "Expert Economic Testimony, Economic Evidence and Asymmetry of Information in Antitrust Cases" (October 2007). Available at SSRN ssrn.com/abstract=1023494 [last visited 30 March 2008].
Ibid, at 4.2.1. This problem is know in economics as "adverse selection" and is traditionally exemplified, by the market for used cars (or "lemons") after a classic article: Akerlof, "The Market for 'Lemons': Quality uncertainty and the market mechanism", 84 QJE (1970), 488.
For a discussion of possible improvements relating to quality signalling mechanisms (in the academic community of economists), see Gutiérrez, op. cit. supra note 116, at 4.4.3.
X. v. Audit Board, supra note 43, paras. 2 to 5 (whether at the time of the acts which gave rise to the disciplinary decision, the official was mentally disturbed to such an extent as to exclude responsibility for his conduct); Nijmann, supra note 43, paras. 37 to 39; Grifoni, supra note 21, para 4 (degree of permanent invalidity not challenged by the parties); Gill, supra note 43, paras. 36-37; R v. Commission, supra note 43.
Mirossevich, supra note 49 (quality of a translation for the purpose of proving the authenticity of a document); Chambre syndicale de la sidérurgie de l'est de la France, supra note 50 (characteristics of competition between two modes of transport); ICI, supra note 52 (in relation to market analysis, compare the summary of the expert's report by A.G. Mayras, at 674, and paras. 69 to 79 of the judgment; in relation to the conclusion according to which "one cannot explain the uniform price increases introduced during the period at issue by reference to the characteristics of the market alone", compare the summary of the expert's report by A.G. Mayras, at 676, and paras. 107 to 109 of the judgment); Pizziolo, supra note 47, paras. 8 and 9 (whether the applicant had the required qualifications and the necessary ability to carry out the duties contemplated by several vacancy reports in a scientific field); Commission v. Royal belge, supra note 45, paras. 10 to 25 (conclusions that an airman ought to have deduced from weather information); Case 318/81, Commission v. CO.DE.MI., [1985] ECR 3693, paras. 13, 32 and 34 to 56 (assessment of the liability incurred with regard to certain breaches of contract and assessment of the damage alleged to have been suffered by each of the parties); Joined Cases T-32 & 39/89, Marcopoulos v. Court of Justice, [1990] ECR II-281, paras. 12 and 35 to 37 (legal rules and practice adopted by national, international and Community institutions regarding the structure, composition and proceedings of selection boards appointed to conduct tests for the recruitment of interpreters as well as other questions concerning the skills required from a member of a selection board to determine a candidate's competence as an interpreter); Cdf Chimie et Fertilisants, supra note 48, paras. 22, 28-51 (effects of a gas tariff system); Frederiksen, supra note 46, paras. 73-78 (a public official's knowledge in computerization).
Ahlström, supra note 25.
Opinion of A.G. Darmon in Ahlström, supra note 25, paras. 432-433. His reservations are expressed inter alia at paras. 358, 363, 397.
Ahlström, supra note 25, paras. 74-127 (see especially paras. 82, 101, 126). Lasok explains that it was a case where the expert evidence "was used largely to cast sufficient doubts on the findings made by the Commission to justify dismissing these findings, as opposed to setting up a positive case contradicting the Commission's findings". See Lasok, op. cit. supra note 7, p. 435.
Ahlström, supra note 25, paras. 136 and 137. See also A.G. Darmon's Opinion at paras. 116-120.
These objections are mentioned in the Opinion of A.G. Darmon in Ahlström, supra note 25, paras. 333, 335-337, 354, 365, 366, 379, 391, 397 and 405. Compare with the judgment at para 101.
Laminoirs de la Providence, supra note 44, 911, 939 and 940.
Ibid., paras. 150-166, paras. 187, 191 ("[t]he calculation method used by the expert appears to be reasonable and persuasive, save as regards the deduction of the rate of inflation"), and paras. 202-213 (para 207: "[t]he Court is not convinced of the validity of [the] method, which involves taking into account, when calculating loss of earnings, the value of assistance rendered by the members of the farmer's family").
MacLennan, op. cit. supra note 7, p. 281.
Lasok, op. cit. supra note 7, p. 398.
Case 215/85, BALM v. Raiffeisen Hauptgenossenschaft, [1987] ECR 1279, para 15; Pfizer Animal Health, supra note 3, paras. 338; Joined Cases T-74, 76, 83, 84, 85, 132, 137 & 141/00, Artegodan and Others v. Commission, [2002] ECR II-4945, paras. 83, 164, 167.
See e.g. Case T-29/92, SPO and Others v. Commission, [1995] ECR II-289, para 42; Tetra Laval, supra note 2; Order in Case T-201/04 R, Microsoft v. Commission, [2004] ECR II-4463.
Art. 58 of the ECJ RoP, Art. 59 of the CFI RoP and Art. 51(3) of the CST RoP. The notion of "adviser", which is also used in Art. 19 of the Statute of the ECJ, does not cover experts.
See e.g. for a Patentanwalt, Case T-315/03, Wilfer v. OHIM, [2005] ECR II-1981, para 11.
MacLennan, op. cit. supra note 7, p. 281.
Art. 73(b) of the ECJ RoP, Art. 91(b) of the CFI RoP and Art. 91(b) of the CST RoP.
Experts' costs were considered as (at least partly) recoverable in Order in Case C-104/89 DEP, Mulder and Others v. Council and Commission, [2004] ECR I-1, para 78 (holding that the assistance of external advisors was necessarily incurred to calculate the amounts of the compensation requested by the applicants); Order in Case T-342/99 DEP, Airtours v. Commission, [2004] ECR II-1785, paras. 55, 67 and 70; Orders of 29 Oct. 2004 in Case T-310/01 DEP, Schneider Electric v. Commission, unpublished, paras. 54-61, and in Case T-77/02 DEP, Schneider Electric v. Commission, unpublished, paras. 69-72. Experts' costs were considered as non-recoverable in Orders in Case T-85/94 DEP and Case T-85/94 OP-DEP, Bronco v. Commission, [1998] ECR II-2667, para 27; Case T-271/94 DEP, Branco v. Commission, [1998] ECR II-3761, para 21 (economist in European Social Fund cases); Order in Case T-65/96 DEP, Kish Glass v. Commission, [2001] ECR II-3261, paras. 26-27.
WestLB, supra note 62, para 78.
Ibid., para 80.
Ibid., paras. 84, 87-90 and 93.
See e.g. Case T-141/94, Thyssen Stahl v. Commission, [1999] ECR II-347, paras. 276 and 632 (report alleging to prove that the practices at issue in this case did not have any appreciable bearing on the level of competition); Case T-25/99, Roberts v. Commission, [2001] ECR II-1881, para 51 (report on market analysis); Tetra Laval, supra note 2; Schneider Electric, supra note 113.
Order in Joined Cases T-195 & 207/01 R, Government of Gibraltar v. Commission, [2001] ECR II-3915, para 86 (report on the effects of the suspension of the measures).
Case T-5/97, Industrie des poudres sphériques v. Commission, [2000] ECR II-3755, para 130 (on how a lime problem and a problem of compactness of calcium metal were dealt with and on the existence of a method for measuring oxygen content); Case C-153/89, Commission v. Belgium, [1991] ECR I-3171, paras. 17-19 (rates of losses incurred in the manufacture of beer in different breweries and different countries); Microsoft, supra note 134, paras. 261-262 (computer science).
Case T-231/99, Joynson v. Commission, [2002] ECR II-2085, para 128; Order in Case T-198/01 R, Technische Glaswerke Ilmenau v. Commission, [2002] ECR II-2153, paras. 20, 35, 39, 44 and 45.
Order in Case T-37/04 R, Região autónoma dos Açores v. Council, [2004] ECR II-2153, paras. 149 and 177; Case C-209/02, Commission v. Austria, [2004] ECR I-1211, para 25.
Case C-202/94, Criminal proceedings against Godefridus van der Feesten, [1996] ECR I-355 (see Opinion of A.G. Fenelly, paras. 17, 38 and 59).
Case T-88/00, Mag Instrument v. OHIM, [2002] ECR II-467, para 18; Case C-136/02 P, Mag Instrument, supra note 58, para 10.
Case C-388/95, Belgium v. Spain, [2000] ECR I-3123, para 62 (the finding of the Court derives directly from the experts' opinion, see Opinion of A.G. Saggio, para 26).
Case T-73/98, Prayon-Rupel v. Commission, [2001] ECR II-867, paras. 78 and 79.
Technische Glaswerke Ilmenau, supra note 146, paras. 100-107; Order in Case T-198/01 R II, Technische Glaswerke Ilmenau v. Commission, [2003] ECR II-2895, paras. 51-54; Order in Case T-198/01 R III, Technische Glaswerke Ilmenau v. Commission, [2004] ECR II-1471, paras. 48-52.
Case C-209/02, Commission v. Austria, [2004] ECR I-1211, paras. 25 and 26.
Case 40/88, Weber v. Milchwerke Paderborn-Rimbeck, [1989] ECR I-1395, para 22.
Commission v. Belgium, supra note 145, paras. 20 and 25 (the experts' reports were deemed sufficient in the absence of any evidence to the contrary).
MacLennan, op. cit. supra note 7, p. 282, citing Case C-84/94, United Kingdom v. Council, [1996] ECR I-5755.
See e.g. Case C-136/02 P, Mag Instrument, supra note 58, para 67.
See e.g. Case T-4/89, BASF v. Commission, [1991] ECR II-1523, para 287; Case T-17/93, Matra Hachette v. Commission, [1994] ECR II-595, para 152; Euroagri, supra note 12, para 174.
Case T-2/95, Industrie des poudres sphériques v. Council, [1998] ECR II-3939, para 259.
Industrie des poudres sphériques, supra note 145, para 113.
Joynson, supra note 146, para 136.
Skibsvaerftsforeningen, note 62 supra, para 187.
Ibid., para 187.
Industrie des poudres sphériques, supra note 145, para 130.
Case T-464/04, Impala v. Commission, [2006] ECR II-2289, para 345 ("the data prepared by the economic advisers to the parties to the concentration, quite apart from the fact that it is impossible to see how they might permit the conclusion which the Commission draws from them, are unclear and do not appear to be reliable.").
MacLennan, op. cit. supra note 7, p. 283, referring to the interim measures proceedings in Case T-13/99 R, Pfizer Animal Health v. Council, [1999] ECR II-1961, the hearing of which attracted 169 microbiologists, epidemiologists and professors of medicine.
See e.g. the Joined Opinions of Judge Vesterdorf acting as A.G. in Cases T-1/89, Rhône-Poulenc v. Commission, T-2/89, Petrofina v. Commission, T-3/89, Atochem v. Commission, T-4/89, BASF v. Commission, T-6/89, Enichem Anic v. Commission, T-7/89, Hercules Chemicals v. Commission, T-8/89, DSM v. Commission, T-9/89, Hüls v. Commission, T-10/89, Hoechst v. Commission, T-11/89, Shell International Chemical Company Ltd v. Commission, T-12/89, Solvay & Cie v. Commission, T-13/89, Imperial Chemical Industries v. Commission, T-14/89, Montedipe v. Commission and T-15/89, Chemie Linz v. Commission, [1991] ECR II-867, 957 ("the findings of economic experts cannot take the place of legal assessment and adjudication. Thus, when Professor Albach makes his observations about what target prices might be in an economic context, it must be emphasized that his views are not, and cannot form, a legal assessment.... It is for the Court to consider what is prohibited under Article 85(1) and the evidence for the commitment of prohibited acts, and not for economic theorists.").
See 2.3.4. supra.
Daubert v. Merrell Dow Pharmaceuticals, supra note 73, 597.
Pfizer Animal Health, supra note 3, para 169.
See e.g. Brewer, who notes that "[w]ere a legal system to set its rules of procedure and evidence - the rules guiding 'legal epistemology' - so as to insist on only knowledge (with truth as a necessary condition) the law would vastly deprive itself of counsel it needs to make legal decisions sufficiently epistemically legitimate to be legally legitimate". Brewer, op. cit. supra note 3, p. 1601 (emphasis in the original).
See Dalbignat-Deharo, op. cit. supra note 5, p. 188.
Arnull, "Owning up to fallibility: Precedent and the Court of Justice", 30 CML Rev. (1993), 247.
Vesterdorf, "Economics in Court: reflections on the role of judges in assessing economic theories and evidence in the modernised competition regime", in Johansson, Wahl, Bernitz (Eds.), Liber amicorum in honour of Sven Norberg (Bruylant, 2006), p. 505.
Council Reg. (EEC) No 4064/89/EEC of 21 Dec. 1989 on the control of concentrations between undertakings (O.J. 1989 L 395/1, corrected version in O.J. 1990, L 257/13), now replaced by Council Reg. (EC) No 139/2004 of 20 Jan. 2004 on the control of concentrations between undertakings (O.J. 2004, L 24/1).
Airtours, supra note 55, para 139.
WestLB, supra note 62, para 87 (referring to Case C-119/97 P, Ufex and Others v. Commission, [1999] ECR I-1341, paras. 110 and 111).
Brewer, op. cit. supra note 3, p. 1679.
Mantonavelli, supra note 31.
MacLennan, op. cit. supra note 7, p. 288.
See e.g. Hovenkamp, "Book review, The Rationalization of Antitrust", 116 Harv. L. Rev. (2003), 917, at 943 and 944;
"Developments in the Law", op. cit. supra note 6, 1589-1591.
WestLB, supra note 62, para 86 (in substance: the expert's independence and the court's control on the necessity and relevance of its intervention and on the costs).
In Woodpulp for instance, the experts' reports managed to explain the existence of a fact that was untrue. See Opinion of A.G. Darmon, para 384 ("the fact that two conflicting explanations [by the Commission's expert and by the Court's experts] could be given for data that is incorrect justifies a cautious approach to what may be deduced with any certainty from what is shown by the economic arguments").
Howard, "The neutral expert: A plausible threat to justice", (1991) Criminal Law Review, 98, at 101 ("[i]t is slightly mysterious that it should be thought that experts are venal mountebanks when engaged by the parties but transformed into paragons of objectivity when employed by the court").
ECtHR, Judgment of 28 Aug. 1991, Brandstetter v. Austria, Series A, No. 211, paras. 41-45.
Opinion by A.G. Darmon in Case C-236/92, Comitate di coordinamento per la difesa della Cava and Others v. Regione Lombardia and Others, [1994] ECR I-483, para 50.
See 2.1. supra.
Opinion of A.G. Mayras in ICI (Dyestuff), supra note 52, p. 675.
Opinion of A.G. Darmon in Ahlström, supra note 25, para 333.
Art. 51 and 73 of the ECJ RoP, Art. 74 and 91(a) of the CFI RoP and Art. 66 and 91 (a) of the CST RoP.
See text at note 139 supra.
Art. 50 of the ECJ RoP, Art. 73 of the CFI RoP and Art. 65 of the CST RoP.
Posner contends that "[t]here is hardly anything, not palpably absurd on its face, that cannot be proved by some so-called 'experts'", See Chaulk v. Vorwagen of Am., Inc., 808 F.2d 639, 644 (7th Cir. 1986) (Posner, J., dissenting).
Art. 4.4 of the CCBE Code of conduct: "[a] lawyer shall never knowingly give false or misleading information to the court".
Except if he is exempted from taking the oath by the Court. Art. 49(6) of the ECJ RoP, Art. 70(6) of the CFI RoP and Art. 62(6) of the CST RoP.
See e.g. for a Patentanwalt, Wilfer, supra note 136, para 11.
By contrast with court-appointed experts (see supra note 36). However, according to one commentator, "examination of court appointed expert witnesses is a rather more kid gloved endeavour than full cross-examination in an Anglo-Saxon style court room." (MacLennan, op. cit. supra note 7, 285).
Joined Opinions in Polypropylene, note 169 supra, p. 954.
Lasok, op. cit. supra note 7, p. 431.
Daubert v. Merrell Dow Pharmaceuticals, supra note 73. See also Rule 702 of the Federal Rules of Evidence.
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
Ibid.
See e.g. the analysis carried out in General Elec. v. Joiner, 522 U.S. 136 (1997).
Dixon and Gil, Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision (Rand Institute for Civil Justice, 2001), p. xvi.
"Developments in the Law", op. cit. supra note 6, 1586.
Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311 (9th Cir. 1995) at 1315-1316 (on remand): "[a]s we read the Supreme court's teaching in Daubert, ... though we are largely untrained in science and certainly no match for any of the witnesses whose testimony we are reviewing, it is our responsibility to determine whether those experts' proposed testimony amounts to 'scientific knowledge', constitutes 'good science', and was 'derived by the scientific method.'" See also Justice Breyer in General Elec. v. Joiner, supra note 205 (Breyer, J. concurring): "This requirement will sometimes ask judges to make subtle and sophisticated determinations about scientific methodology and its relation to the conclusions an expert witness seeks to offer - particularly when a case arises in an area where the science itself is tentative or uncertain, or where testimony about general risk levels in human beings or animals is offered to prove individual causation. Yet... judges are not scientists and do not have the scientific training that can facilitate the making of such decisions". See also "Developments in the Law", op. cit. supra note 6, 1516.
Compare with the anonymous note "Reliable Evaluation of Expert Testimony", 116 Harv. L. Rev. (2003), 2142, at 2150, (stating that under Daubert, "judges need not be amateur scientists, technicians or specialists", but "must know enough about a subject to identify indicia of reliability and to apply them competently", "the judiciary's expertise [being] in deconstructing an argument").
"Developments in the Law", op. cit. supra note 6, 1513; Brewer, op. cit. supra note 3, p. 1617.
Hovenkamp, op. cit. supra note 183, 942.
Dixon and Gil, op. cit. supra note 206, p. xx.
"Developments in the Law", op. cit. supra note 6, p. 1502.
Werden, "Making Economics More Useful in Competition Cases: Procedural Rules Governing Expert Opinions", in Hawk (Ed.), International Antitrust Law & Policy (Fordham Corp. L. Inst., 2005), p. 601, at p. 607.
See Marcopoulos, supra note 120.
Curtil, "Le droit des experts judiciaires tels qu'issu de la loi du 11 février 2004: statut et discipline", Petites affiches, 13 Sept. 2004, No. 183, p. 3. In France, there are two types of lists of experts: those drawn up by each Court of appeal and a national list, drawn up by the Cour de cassation. Experts are now subject to an initial probation period of 5 years. An expert can only be admitted onto the national list if he or she has been on a court of appeals list for at least 3 consecutive years (Art. 2 of law 71-498 as modified).
Ibid.
Art. 25 ECSC ("[t]he Court may at any time entrust any individual, body, authority, committee or other organization it chooses the task of holding an inquiry or giving an expert opinion; to this end, it may compile a list of individuals or bodies approved as experts"). See also Lasok, op. cit. supra note 7, p. 397. The adoption of such a list was recommended by Olivier, "L'expertise devant les juridictions communautaires", Gazette du palais, 10 March 1994, 291.
Council documents Nos. 7001/08, 7728/08 and 9124/08.
The Commission proposal for the establishment of a Community Patent Court (COM(2003)828 final) indirectly acknowledges the usefulness of such lists for the adjudication of very technical issues: a reference to the list maintained by the European Patent Office for the purpose of legal representation before it is supposed to ensure appropriate and uniform standards for qualifying persons which must be met for efficient proceedings. See Art. 4 of the proposal.
Howard, op. cit. supra note 186, 103.
Brewer, op. cit. supra note 3, pp. 1624-1634.
See www.catribunal.org.uk/about/default.asp#howappeal [last visited 30 March 2008].
Council Dec. of 2 Nov. 2004 establishing the European Union Civil Service Tribunal (O.J. 2004, L 333/7).
House of Lords report, supra note 81.
Ibid., para 120 and Q98. See also Gerber, op. cit. supra note 113, p. 493.
House of Lords report, supra note 81, paras. 65-84 and 122. It can also raise budget-ary issues.
Proposal for a Council decision conferring jurisdiction on the Court of Justice in disputes relating to the Community patent, COM(2003)807 final, 23 Dec. 2003. Art. 229a EC allows the Council to adopt provisions to confer jurisdiction, to the extent that it shall determine, on the ECJ in disputes relating to the application of acts, adopted on the basis of the Treaty, that create Community industrial rights.
Proposal for a Council decision establishing the Community Patent Court and concerning appeals before the Court of First Instance, COM(2003)828 final.
Ibid., p. 9 and 34.
Communication from the Commission to the European Parliament and the Council, Enhancing the patent system in Europe, COM(2007)165 final; see also Council documents Nos. 7001/08, 7728/08 and 9124/08.
Proposal for a Council Decision establishing the Cornmunity Patent Court and concerning appeals before the Court of First Instance - Opinion of the Court of Justice of the European Communities, para 37.
See also Art. 16 of the ECSC Statute.
"Developments in the Law", op. cit. supra note 6, 1593.
U.S. v. United Shoe Machinery, 110 F. Supp. 29S; Aff'md, per curiam 347 U.S. 251. Kaysen, "An Economist as the Judge's Law Clerk in Sherman Act Cases", 25 Antitrust L.J. (1958), p. 43;
Webster and Hogeland, "The Economist in Chambers and in Court", 25 Antitrust L.J. (1958), 51.
House of Lords report supra note 81, Reply by Judge Cooke and President Vesterdorf to Question 411. See also Vesterdorf, foreword to Sibony, Le juge et le raisonnement économique en droit de la concurrence, op. cit. supra note 114.
COM(2007)165 final. See also Council Doc. No. 9124/08.
COM(2003)828 final, Art. 4 of the proposal.
Ibid.
Ibid., p. 18.
Ibid., p. 52
Ibid., Art. 6 of the proposal.
Ibid., p. 8.
Ibid., p. 52.
Ibid., p. 8 and 18.
Ibid., p. 21.
Proposal for a Council Decision establishing the Community Patent Court and concerning appeals before the Court of First Instance - Opinion of the Court of Justice of the European Communities, para 9.
Kaysen, op. cit. supra note 233, p. 46. Howard, op. cit. supra note 186, 103-104.
Letter by Judge Wyzanski, copied in the Appendix to Webster and Hogeland, op. cit. supra note 236. See also "Developments in the Law", op. cit. supra note 6, 1594.
Biondi and Harmer, op. cit. supra note 94, pp. 54-56.
Reg. 1907/2006 on Registration, Evaluation, Authorisation and Restriction of Chemicals, O.J. 2006, L 396.
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