A European perspective
The European Judicial Training Network, EJTN provides training programmes with a European dimension delivered in the form of study visits and country exchanges, the English language exchange taking place in Romania. Last summer I attended a 2 day study visit at the Court of Justice of the European Union in Luxembourg. Also taking part was another fee paid Judge of the IAC, Judge Kyrie James. The programme has been running for several years delivering training to Judges at all levels of the judiciary of the member states of the EU.
There are 3 study visits a year. Although many of the programmes are delivered in English, being one of the 3 working languages of the Court, few UK judges have taken part, much to the regret of the organisers. This is a shame as I found that the study visit provided a very useful insight into the mysteries of the European Court and a more confident understanding of the institution. The distinction from but synergy with the European Court of Human Rights was also clearer.
There were about 26 people in the group and it was also an invaluable opportunity to meet with judicial colleagues from a large number of member states, learn about their very different jurisdictions and to explain the vagaries of ours. Most member states have a career judiciary and our German colleagues in particular found it very difficult to accept that a part time judiciary can operate without bias.
For the most part EJTN came up with an interesting and stimulating programme delivered by senior members of the Court.
Day One included a General Presentation on the Court of Justice, the General Court and the role of the Advocates General.
The Court of Justice of the European Union consist of 3 courts, the Court of Justice, the General Court and the Civil Service Tribunal- the latter being an internal staff body. The focus of the presentations was the Court of Justice.
We were given very detailed information on the processes from receipt of a preliminary reference, which makes up 65% of the workload, to direct actions to the Court of Justice. Another 25% of the work is appeals from the General Court. An idea of the scale and detail of the whole operation is better understood when you consider that the Court employs 600 legally trained linguists alone. 26 Member states submit applications in their local language and all incoming work is first translated into the languages of all the member states to allow them the opportunity to present observations. There is then analysis by the Research and Documentation department consisting of lawyers of all the member states to see whether the issue has already been resolved by case law. It means a reasoned order can be made at an earlier stage rather than waiting for an oral hearing. (Later in the study visit we were given a presentation on the library and research facilities. Similar to our own IAC Legal & Research unit, however this is available to Judges of all the member states. An enquiry on European Law can be submitted by email. It will be researched and the response is by email. There is also access to the new “eCuria” web based research resource).
There are currently 27 Judges, 8 Advocates-General, including one from the UK, Eleanor Sharpston QC. 5 of the Advocates General are selected from the original 5 largest states, France, Germany, the UK, Spain and Italy. Assessment for appointment is by a Committee of “Wise Persons”. The Advocate-General provides opinions to the Court on all pending cases. They also deliver the reasoned decision in open court. 80% of decisions follow the earlier pre hearing written opinion of the Advocate-General.
The hearing comes after a cumbersome process, involving even more translating, ending with an opinion from one of the Advocates-General. There were 800-900 cases were pending at the time of our visit and the time scale for decision of the Court was is just under 15 months. There is however an expedited procedure for urgent cases such as where a person is detained or a child custody matter. In such cases the Court is able to deliver a ruling in less than 3 months.
The other member states are far more engaged with and make far more use of the Court than the UK with Germany, The Netherlands, Belgium, Spain and Bulgaria being the top 5. The UK makes up a very small proportion of the cases. The UK Advocate-General who has a background in EU law was very keen that the UK makes more referrals to the Court.
We were positively encouraged to make use of the preliminary reference procedure with hints of dire consequences if we did not. Article 267 of the Lisbon Treaty states that a first instance court has discretion but a final court is obliged to make a reference. Failure to do so is a breach and can lead to damages. There is a procedure for an expedited response. This can be faster still if the question has been previously decided.
The General Court has a slightly less cumbersome procedure as it does not deliver preliminary rulings or involve the Advocate-General. It deals primarily with commercial and competition law and policy. Despite this the average time scales are 30 to 36 months but again there is a fast track procedure available. The orders of the General Court are appealable to the Court of Justice.
A presentation on recent cases included the Schengen Convention “Double jeopardy rule”. This failed to engage much of the group as most were Administrative Court Judges. However it still went down better than the one that followed; “Asylum: Qualification Directive and Dublin II”. Kyrie and I seemed to be the only ones awake although go be fair this followed an exceptionally good lunch accompanied by very good Luxembourg wine.
What was anticipated to be the highlight of the visit and for me was somewhat of a letdown was the chance to sit in on a hearing of the Grand Chamber. This took place on the second day. We were given a briefing beforehand about the case, a preliminary reference from Spain about the European Arrest Warrant and whether the framework is compatible with a person’s fundamental right to a fair trial when convicted in absentia. Unfortunately we only sat in the first hour or so of the hearing. This went very slowly with the Spanish advocate presenting his case. The Netherlands, Italy and UK then made submission. All submissions were strictly timed and delivered in their own language. There were a myriad of translators in booths around the court simultaneously translating the submissions into the languages of all the member states. The advocacy was not the most stimulating. The interpreters were far more animated than the advocates. Sadly we were not given the chance to sit in on the second part of the hearing where the Judges might have asked questions of the Advocates.
This did not detract from what was a fascinating two days in Luxembourg. With the help of one of the UK court assistants we were also able to have a short meeting with Eleanor Sharpston. We both individually returned and had follow up meetings with her. She was very approachable and as keen as everyone else we met that the UK make more use of the Court, particularly preliminary references.
It was quite apparent during the two days that everyone at the Court, including the Judges, are keen to engage with judiciary of the member states to both understand our concerns and better explain their role and approach to carrying out their functions.
EJTN sets as its objective for the European Union the creation of a genuine area of freedom, security and justice, promotion of awareness of European judicial systems and strengthening of the understanding and cooperation between judges and prosecutors in the EU Member States. It certainly does that. A lot of information was packed in to the 2 days and I highly recommend the programme to anyone with even the vaguest of interest in the European institutions.
Cordella Bart-Stewart, fee paid judge of the First tier Tribunal (Immigration and Asylum Chamber).
This article appears in “Benchmark” a regular publication for judicial office-holders.