Abstract
Courts are increasingly pursuing partnerships with foreign counterparts by organising themselves in networks—at their own initiative or at the instigation of the European legislature. This chapter adopts a critical approach to this phenomenon to highlight its advantages and drawbacks. First, it explores the wide variety of judicial networks currently in existence, with specific attention to composition and mandate of these networks. Next, the traditional patterns of dialogue between national courts and the Court of Justice of the European Union, in particular the preliminary reference procedure are surveyed. Finally, the chapter addresses the ways in which judicial networks can—and do—affect these traditional relationships between the European courts and national judges. As “educational interlocutors”, judicial networks are expected to Europeanise the outlook of national courts, by raising awareness of their role as the enforcers of European law. The networks also have an impact on the work of the European Courts, by critically evaluating and improving their functioning or by orchestrating a ‘revolt’ of national courts.
Maartje de Visser is Assistant Professor, Department of International and European Law, Maastricht University. At the time of her contribution to the project, she was Assistant Professor, Department of International and European Public Law, Tilburg Law School, Tilburg University, and a member of the Tilburg Law and Economics Center (TILEC).
Monica Claes is Professor of European and Comparative Constitutional Law, Maastricht University. At the time of her contribution to the project, she was Professor of European and Comparative Constitutional Law, Tilburg Law School, Tilburg University.
A version of this chapter will be published as ‘Judicial Networks and the Court of Justice of the European Union’, in Antoine Vauchez and Bruno de Witte, eds., The European Legal Field (Oxford, Portland: Hart, forthcoming).
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Notes
- 1.
Bell 2006, 1.
- 2.
Rosas 2008, 187.
- 3.
To be clear, we are talking here about judicial communities across legal systems, while not denying that judicial communities also exist within legal systems and even within a single court.
- 4.
Timmermans 2004, 399.
- 5.
Other types of more or less formal networks and relations exist between international courts among themselves and between courts belonging to the same (national) legal order.
- 6.
Networks created under the aegis of the Council of Europe, such as the Consultative Council of European Judges, will not be considered in this chapter. See generally Potocki 2007, 141.
- 7.
http://www.ejn-crimjust.europa.eu/ejn/EJN_Home.aspx. Accessed 14 May 2012.
- 8.
Joint Action of 29 June 1008 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on the creation of a European Judicial Network [1998] OJ L19/14.
- 9.
Article 1.
- 10.
Article 4.
- 11.
Article 5.
- 12.
- 13.
Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime [2002] OJ L63/1. Article 4 specifies that Eurojust has competence in respect of all types of crimes that fall within Europol’s remit of jurisdiction and in relation to computer crimes, fraud and corruption, money laundering, environmental crimes and participation in a criminal organisation.
- 14.
Article 2.
- 15.
Article 3.
- 16.
Further: Council Document 11037/05 of 8 July 2005, available at http://register.consilium.europa.eu/pdf/en/05/st11/st11037.en05.pdf. Accessed 14 May 2012.
- 17.
Articles 6 and 7.
- 18.
Article 26(2).
- 19.
http://ec.europa.eu/civiljustice/index_en.htm. Accessed 14 May 2012.
- 20.
Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters [2001] OJ L174/35. See also Proposal for a decision of the European Parliament and of the Council amending Council Decision 2001/470/EC establishing a European Judicial Network in civil and commercial matters COM(2008) 380 final.
- 21.
Articles 3, 14 and 15. The public website offers information on the state of the law in the Member States and at Community level in relation to inter alia legal aid, access to the courts, procedural time limits, interim measures, simplified and accelerated procedures and compensation to crime victims.
- 22.
Article 2.
- 23.
Article 5.
- 24.
Article 10.
- 25.
http://www.confcoconsteu.org/. Accessed 14 May 2012. See also http://www.lrkt.lt/conference.html. Accessed 14 May 2012. Note the name ‘conference’ instead of ‘association’ or ‘network’ commonly used by other networks. This is probably due to the specific role of these courts, and aims to stress their continuing independence and neutrality.
- 26.
The French Conseil constitutionnel, the Belgian Cour constitutionnelle as well as the Bulgarian and Czech constitutional courts are also members of the Association des Cours Constitutionnelles ayant en Partage l’Usage du Français, see http://www.accpuf.org/. Accessed 14 May 2012.
- 27.
Article 6 Statute of the Conference of European Constitutional Courts. Membership is not limited to courts of the EU Member States. The same article also stipulates the various documents that must accompany an application for membership. Required are the legal instruments governing the establishment and composition of the applicant institution as well as the appointment and status of its judges; texts stating the nature and scope of the jurisdiction as well as documents that demonstrate jurisdiction actually exercised.
- 28.
Article 3 Statute of the Conference of European Constitutional Courts. For instance, the 2002 congress considered ‘the relations between the constitutional courts and other national courts, including the interference in this area of the action of the European courts’, while the 2008 conference focused on Constitutional Problems of Legislative Omission in Constitutional Jurisprudence. Interestingly, the four official languages for debate during the congress are French, English, German and Russian, Article 12(1) Conference Regulations of the Conference of European Constitutional Courts and Article 9(2) Statute of the Conference of European Constitutional Courts.
- 29.
Article 5 Conference Regulations of the Conference of European Constitutional Courts and Articles 5 and 9(2) Statute of the Conference of European Constitutional Courts.
- 30.
Corte Costituzionale, Diritto Comunitario Europeo e Diritto Nazionale: Atti del seminario internazionale, Roma 14-15 luglio 1995 (Dott. A Giuffrè Editore, Milan 1997).
- 31.
The meeting is well documented in the cahiers of the Conseil constitutionnel, no 4, see www.conseil-constitutionnel.fr. Accessed 14 May 2012.
- 32.
http://www.juradmin.eu/en/home_en.html. Accessed 14 May 2012.
- 33.
It should be noted, however, that there has been a much longer tradition of regular meetings. The first meeting, between the Belgian and the Italian Councils of State, was held in 1964, and the first colloquium involving the then six members of the EC, took place in 1968. Since then, colloquiums were held bi-annually, on various themes of common interest, sometimes, but not always, relating to European issues. The ECJ joined in later.
- 34.
Article 3 Statutes of the Association.
- 35.
The information contained in this database is entered into it directly by the Association’s members. The Association then coordinates this input and offers translations of descriptions and summaries.
- 36.
This forum enjoys considerable popularity. According to the Association’s website, at 15 October 2009, 230 members had registered and had posted 406 messages on 141 topics.
- 37.
http://www.ejtn.net. Accessed on 14 May 2012.
- 38.
Articles 6 and 7 Consolidated Articles of Association.
- 39.
Article 4 Consolidated Articles of Association.
- 40.
See eg EJTN Strategic Plan 2007–2013 available at the network’s website. Mention should in particular be made here of e-learning tools, the drawing up of judicial training curriculum guidelines and a focus on improving language skills to ensure meaningful cross-border participation in judicial training programmes.
- 41.
http://www.aeaj.org/ .Accessed 14 May 2012.
- 42.
Statutes of the association of European administrative judges from 24th of March 2000 in the version from 19th May 2006 and 23rd May 2008, Article 2.
- 43.
The English Competition Appeal Tribunal (CAT) played a leading role in establishing the AECLJ (and has also provided its secretariat) and it is thus no surprise that the president of the CAT, Sir Christopher Bellamy, was elected as the Association’s first president. He was succeeded by Joachim Bornkamm of the German Bundesgerichtshof in 2005.
- 44.
Often co-financed by the European Commission, Report from the Commission to the European Parliament and the Council on the Final Evaluation of the Community’s action programme to promote bodies active at European level and support specific activities in the field of Education and Training COM(2008) 337 final, 11.
- 45.
For instance, see its comments on Commission (EC) ‘Damages actions for breach of the EC antitrust rules’ (White Paper) COM(2008) 165 final, available at http://ec.europa.eu/comm/competition/antitrust/actionsdamages/white_paper_comments/judges_en.pdf. Accessed 14 May 2012.
- 46.
http://www.eufje.org. Accessed 14 May 2012.
- 47.
http://www.ealcj.org/. Accessed 14 May 2012.
- 48.
www.medelnet.org. Accessed 14 May 2012.
- 49.
http://www.gemme.eu/. Accessed 14 May 2012.
- 50.
http://www.network-presidents.eu/. Accessed 14 May 2012. The inaugural conference was held on 10 March 2004 in Paris, at the Cour de cassation with the financial support of the European Commission (under the AGIS programme, which ran from 2003 until 2006 and sought to help police, the judiciary and professionals from the EU Member States and candidate countries cooperate in criminal matters and the fight against crime).
- 51.
The Presidents of the Community Courts and the European Court of Human Rights participate in the general assemblies and colloquiums organised by the network.
- 52.
See Newsletter No 6, July 2008, available at the Network’s website.
- 53.
http://www.amue-ejpa.org/index.php?lang=uk. Accessed 14 May 2012.
- 54.
Articles 1 and 2.1 Statute.
- 55.
Of particular relevance in this respect are the Association’s chatting list and judicial phone book.
- 56.
France, Spain, Italy, Portugal, Germany, the Netherlands, Czech Republic, Hungary and Romania.
- 57.
http://www.encj.eu. Accessed 14 May 2012.
- 58.
Article 6 Statutes of the international not-for-profit association European Network of Councils for the Judiciary.
- 59.
A similar status is granted to candidate states and to the European institutions.
- 60.
After Slaughter 2004.
- 61.
Article 6 (1) (a) of the Statute of the Conference of European Constitutional Courts.
- 62.
For an illuminating discussion of two different conceptions of the term ‘dialogue’, consider Tremblay 2005, 630–633.
- 63.
These questions are often raised at the instigation of the parties and hence, the role of the bar in the judicial architecture should not be underestimated.
- 64.
- 65.
Craig and De Búrca 2008, 500.
- 66.
Claes 2008, 432–451.
- 67.
For a critique of this behaviour, see Baquero Cruz 2005), 241–266.
- 68.
It should be pointed out however, that the situation does not compare that of the ECtHR, which is collapsing under its case load and lack of financial means.
- 69.
See Nyikos 2003, 397.
- 70.
Case C-129/00 Commission v Italian Republic [2003] ECR I-4637. Note that, strictly speaking, Italy was not held in breach for the activities of its courts and administrative authorities, but for failing to amend relevant provisions of national legislation. The Commission has opened proceedings against Sweden in 2004 alleging that the number of references made by Swedish highest courts was insufficient, and in particular expressed its dissatisfaction with the fact that these courts did not consider the referral of a case to the ECJ when deciding whether to hold an appeal admissible and that decisions on admissibility were given without reasons, so that the fulfilment of the obligations under now Article 267 TFEU could not be checked objectively, see Commission docket No 2003/2161, C(2004) 3899 of 13 October 2004.
- 71.
Case C-224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239. The refusal to refer per se will not amount to a sufficiently serious breach of Community law, but it may contribute to an incorrect application of Community law which may. It will then be difficult, however, to establish a causal link.
- 72.
See the furious reaction to the Köbler judgment, written by an Advocate General of the Netherlands’ Hoge Raad, P Wattel, ‘Köbler, Cilfit and Welthgrove: we cannot go on meeting like this’ (2004) 41 CML Rev 177.
- 73.
The Court of Justice ‘Information Note on references from national courts for a preliminary ruling’ [2005] OJ C143/1.
- 74.
ECJ can ask the referring court for further clarifications (Artilce 104 (5) Rules of Procedure), but it is not a party in the proceedings before the ECJ. The Court of Justice ‘Information Note on references from national courts for a preliminary ruling’ [2005] OJ C143/1 contains the following explanations: ‘The order for reference and the relevant documents (including, where applicable, the case file or a copy of the case file) are to be sent by the national court directly to the Court of Justice, by registered post. (..) [at 29]. The Court Registry will stay in contact with the national court until a ruling is given, and will send it copies of the procedural documents [at 30]. The Court will send its ruling to the national court. It would welcome information from the national court on the action taken upon its ruling in the national proceedings and, where appropriate, a copy of the national court's final decision. [at 31]’.
- 75.
It has only on one occasion referred to a decision of the ECtHR, i.e. to the Chamber decision in Leyla Sahin v Turkey.
- 76.
See on this also Poiares Maduro 2008, 218–219.
- 77.
See for instance the work of Emmanueal Lazega, who examines social mechanisms of cooperation in a variety of settings, e.g. Lazega 2009.
- 78.
See e.g. Timmermans 2004, 396–399.
- 79.
Case 148/78 Criminal proceedings against Tullio Ratti [1979] ECR 1629.
- 80.
Decision of 16 July 1981, BFHE 133, 470; [1982] 1 CML Rev 527 and Decision of 25 April 1985, BFHE 143, 383; [1989] 1 CML Rev 873.
- 81.
Decision of 22 December 1978, Rec. 524; RTDeur., 1979, 168.
- 82.
It is interesting to note that it was the Bundesverfassungsgericht which ultimately convinced the Bundesfinanzhof that the ECJ had not overstepped the boundaries of the judicial function when granting direct effect to directives, Decision of 8 April 1987, BverfGE 75, 223; [1988] 3 CML Rev 1.
- 83.
Decision of 18 July 2005, 2 BvR 2236/04.
- 84.
See in particular paragraph 159-160 of the judgment. The ECJ did not seem to respond to this ‘dark signal’ in Case C-303/05 Advocaten van de Wereld VZW v Leden van de Ministerraad [2007] ECR I-3633, in which it held that the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1 was valid.
- 85.
Vauchez 2008.
- 86.
- 87.
Schepel and Wesseling 1997, 178.
- 88.
Herzog and Gerken 2008.
- 89.
Brown et al. 2000, 401.
- 90.
Denning 1982.
- 91.
- 92.
On the concept of epistemic communities see Haas 1992.
- 93.
Alter 2001.
- 94.
Markesinis and Fedtke 2005.
- 95.
The ECJ asks judges to send the final decision to Luxembourg, see Court of Justice ‘Information Note on references from national courts for a preliminary ruling’ [2005] OJ C143/1 [31].
- 96.
So, for instance, the Bundesverfassungsgericht in Solange I (decision of 29 May 1974, Internationale Handelsgesellschaft (Solange I) BverfGE 37, 271) made reference to the Frontini judgment of the Corte costituzionale (Decision n. 183/73 of 27 December 1973, 18 Giur. Cost. I 2401). Also, in Nicolo (decision of 20 October 1989, RTDeur. 1989, 771) commissaire du gouvernement Frydmann pointed out to the Conseil d’État that all other courts, ‘even the House of Lords’, had accepted review powers under the primacy principle.
- 97.
The Commission, in its annual reports on the application of Community law, does report judgments ‘that were noteworthy as setting good or bad examples’.
- 98.
This guide was drawn up under the auspices of the Dutch Eurogroup, which is an informal working Group of the Netherlands Association for the Judiciary.
- 99.
The topic was inspired by the judgments in Case C-224/97 Erich Ciola v Land Vorarlberg [1999] ECR I-2517; Case C-201/02 The Queen, on the application of Delena Wells v Secretary of State for Transport, Local Government and the Regions [2004] ECR I-723; Case C-453/00 Kühne & Heitz NV v Productschap voor Pluimvee en Eieren [2004] ECR I-837; Case C-234/04 Rosmarie Kapferer v Schlank & Schick GmbH [2006] ECR I-2585; Joined Cases C-392/04 and C-422/04 i-21 Germany GmbH and Arcor AG & Co. KG v Bundesrepublik Deutschland [2006] ECR I-8559. The Association also provided assistance—in the form of seminars and working visits—to the ten new Member States around the time of their accession to the EU.
- 100.
JURIFAST has been operational since 1 February 2004 and as at 15 July 2008, counted 466 judgments.
- 101.
See in particular the Report of the Working Group on the Preliminary Rulings Procedure (2008). Note that representatives of the Network of Presidents of the Supreme Courts of the EU joined the working group and that the ECJ sent an observer to the Working Group in the person of Christiaan Timmermans.
- 102.
Ibid, 11.
- 103.
Ibid, 12.
- 104.
Ibid, 15.
- 105.
Case 120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung für Branntwein (‘Cassis de Dijon’) [1979] ECR 649.
- 106.
First Report on the Application of the Principle of Mutual Recognition In Product and Services Markets SEC (1999) 1106, 13 July 1999, 6. Note that this report followed twenty years after the judgment was delivered.
- 107.
Ibid.
- 108.
This view is based (at least partly) on the division of jurisdiction between the ECJ and the CFI of competition cases: since judicial challenges to Commission decisions under Article 101 or 102 TFEU must be brought before the Court of First Instance, it is considered that this has denied the ECJ the opportunity to familiarise itself with the technicalities and complexities that competition law cases bring with them, with in turn believed to compromise its ability to give ‘correct’ or satisfactory answers to competition questions that come before it via Article 267 TFEU.
- 109.
See eg Sadurski 2006.
- 110.
- 111.
We leave aside the question of whether we would observe competition among the various networks in response, and what the possible consequences of such competition, were it indeed to develop, would be.
- 112.
But see the praiseworthy initiative of the Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union, who invited representatives of the Network of the Presidents of the Supreme Judicial Courts of the European Union to participate in its working Group on the preliminary rulings procedure.
- 113.
Remarkably, the bulletin is published only in French, which is the Court’s working language, but hardly the most widely used language in the European Union. An English and German language edition would be most welcome.
- 114.
Thus including the United Kingdom and the Netherlands, who were later refused membership of the Conference of European Constitutional Courts!.
- 115.
Robert 1996.
- 116.
Ibid.
- 117.
Décision n° 98–399 DC concerning the Loi relative à l’entrée et au séjour des étrangers en France et au droit d’asile, recueil 245, Journal officiel du 12 mai 1998, p 7092.
- 118.
Rapport de la Cour de Justice de Communautés Européennes.
References
Alter K (2001) Establishing the supremacy of European law: the making of an international rule of law in Europe. Oxford University Press, Oxford
Baquero Cruz J (2005) Le procédure préjudicielle suffit-elle à garantir l’efficacité et l’uniformité du droit de l’Union européenne? In: Azouali L, Burgorgue-Larsen L (eds) L’autorité de l’Union européenne. Bruylant, Bruxelles
Baudenbacher C, Busek E (2008) The role of international courts. German Law Publishers, Munich
Bell J (2006) Judiciaries within Europe: a comparative review. Cambridge University Press, Cambridge
Brown L et al (2000) The court of justice of the European communities. Sweet and Maxwell, London
Claes M (2008) The national courts’ mandate in the European constitution. Hart Publishing, Oxford
Craig P, de Búrca G (2008) EU law: text, cases and materials. Oxford University Press, Oxford
Denning A (1982) What next in the law. Oxford University Press, Oxford
Donner A (1974) The constitutional powers of the court of justice of the European communities. CML Rev 11:127
Due O (1992) A constitutional court for the European communities. In: Curtin D, O’Keeffe D (eds) Constitutional adjudication in European community and national law: essays for the Hon. Mr. Justice TF O’Higgins. Butterworths, Dublin
Haas P (1992) Epistemic communities and international policy coordination. Int Org 46:1
Herzog R, Gerken L (2008) Stop the European Court of Justice. EU-observer, 10 Sept 2008. http://euobserver.com/9/26714. Accessed 14 May 2012
Jacobs F (1992) Is the court of justice of the European communities a constitutional court? In: Curtin D, and O’Keeffe D (eds) Constitutional adjudication in European community and national law: essays for the Hon. Mr Justice TF O’Higgins. Butterworths Law, Dublin
Kirby M (2006) Transnational judicial dialogue: strengthening networks and mechanisms for judicial consultation and cooperation. Harvard Law School, Harvard
Komarek J (2007) European constitutionalism and the European arrest warrant: in search of the limits of “contrapunctual principles”. CML Rev 44(1):9
Kühn Z (2007) The European arrest warrant, third pillar law and national constitutional resistance/acceptance—the EAW saga as narrated by the constitutional judiciary in Poland, Germany, and the Czech Republic. Croat Yearb Eur Law Policy 3:99
Lazega E (2009) Cooperation among competitors: its social mechanisms through network analyses. Sociologica
Lecourt R (1991) Quel eut été le droit des communautés sans les arrêts de 1963 et 1964? In: Boulouis J (ed) l’Europe et le Droit. Dalloz, Paris
Mancini G (1989) The making of a constitution for Europe. CML Rev 26:595
Markesinis B, Fedtke J (2005) The judge as comparatist. Tulane Law Rev 80:11
Nyikos S (2003) The Preliminary reference process: national court implementation, changing opportunity structures and litigant desistment. Eur Union Politics 4:397
Poiares Maduro M (2008) The European court of justice. In: Baudenbacher C, Busek E (eds) The role of international courts. German Law Publishers, Munich
Potocki A (2007) Les Réseaux Juridictionnels en Europe. In Baudenbacher C et al (eds) Liber Amicorum en l’honneur de/in honour of Bo Vesterdorf. Bruylant, Bruxelles
Robert J (1996) Le Conseil Constitutionnel en Europe. Cahiers du Conseil Constitutionnel 1
Rodriguez Iglesias G (1996) Zur “Verfassung” der Europäischen Gemeinschaft. EUGRZ 23:125
Rosas A (2008) Methods of interpretation—judicial dialogue. In: Baudenbacher C, Busek E (eds) The role of international courts, German Law Publishers, Munich
Sadurski W (2006) Solange, chapter 3: Constitutional courts in Central Europe—democracy—European Union, EUI Working Papers, LAW No. 2006/40
Scheeck L (2007) Competition, conflict and cooperation between European courts and the diplomacy of supranational judicial networks. GARNET Working Paper 23/07
Schepel H, Wesseling R (1997) The legal community: judges, lawyers, officials and clerks in the writing of europe. Eur Law J 3:165
Schockweiler F (1995) Die richterliche Kontrollfunktion: Umfang und Grenzen in Bezug auf den Europäischen Gerichtshof. Europarecht 30:191
Shany Y (2003) The competing jurisdictions of international courts and tribunals. Oxford University Press, Oxford
Slaughter A (2004) A new world order. Princeton University Press, New Jersey
Slaughter A et al (1998) The European court of justice and national courts—doctrine and jurisprudence: legal change in its social context. Hart Publishing, Oxford
Slynn G (1984) The court of justice of the European communities. Int’l and Comp LQ 33:409
Stein E (1981) Lawyers, judges and the making of a transnational constitution. American J Int Law 73:1
Timmermans C (2004) The European union’s judicial system. CML Rev 41:393
Tremblay L (2005) The legitimacy of judicial review: the limits of dialogue between courts and legislatures. Int J Const Law 3:617
Vauchez A (2008) Integration-through-law: contribution to a socio-history of EU political commonsense. EUI Working Papers RSCAS 2008/10
Weatherill S (2007) Cases and materials on EU law. Oxford University Press, Oxford
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de Visser, M., Claes, M. (2013). Judicial Networks. In: Larouche, P., Cserne, P. (eds) National Legal Systems and Globalization. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-885-9_13
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