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‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Wednesday, 9 January 2013

Why Judges in Europe Need To Work Together

By David Ordóñez-Solís
Senior Judge in the Oviedo Administrative Court, Spain

With a response from Rudolf R. Winter
Coordinating senior vice-president of the Administrative High Court for Trade and Industry in The Hague, Netherlands

When in 2008 Richard Posner, a well-known American federal judge and professor at Chicago University, launched his book How Judges Think, he suggested other provocative and alternative titles for his book like Do Judges Think? or Which Judges Think? I want to raise the question Do Judges Really Need Networking; can an exchange of information and best practices between judges in Europe really improve their work? 

My answer is that in a new technological world and in a European context judges need to network so they can do a better job. The reasons are clear: times are changing. Besides in Europe we have the procedures and the techniques to network effectively.

The world has changed rapidly and Europe is very much different compared to the last century. Yet people still have - more or less - the same traditional idea and image of judges and the way we work.

Judging too however has changed a lot. Judges deal with many more legal data than in the past, and they must keep up with new social developments. We also need to give reasons for our decisions. Not only for the parties involved but also in order to inform the public. And although judges and judgments have kept their traditional style, the issues and problems they deal with are part of new and complex legal order

All over Europe judges deal with similar problems: is it legal to download files from the internet, to publish private pictures taken during holidays or use GPS in to fight criminals? Therefore it is very helpful for – say - a Spanish judge to know if a similar question was already answered by a Swedish Court after it had referred the case for preliminary ruling to the European Court of Justice in Luxemburg. It is also quite useful to know what happened to a German Court decision after it was submitted to the European Court of Human Rights in Strasbourg, or – even – to be informed about United States Supreme Court decisions. (Case C-461/10 Bonnier Audio [19 April 2012], Case Von Hannover v. Germany (no. 2) [7 February 2012], or Case United States v. Jones [23 January 2012].) National judges (in Europe) could learn very much from the legal reasoning in judgments from the courts in Luxembourg, Strasbourg and Washington.

European law too has changed since the first national judge, the Court of Appeal in The Hague, referred the first question to the European Court of Justice, Case 13/61 Bosch e.a. [1962] ECR 45. The European Union has become a new legal order and apart from the European Court of Justice national judges have been given an important role to guarantee the necessary uniformity of enforcement of the EU Law.

By answering to preliminary questions the European Court of Justice started built a framework referring to its fundamental principles: by answering to a Dutch Court it decided on the principle of direct effect of European law (Case 26/62 Van Gend en Loos [1963] ECR 1); and asked by an Italian Court, it decided that in case of conflict between national and European norms the latter prevails [Case 6/64 Costa ENEL [1964] ECR 585]. Asked by German and British Courts, it developed the principle of State liability for loss or damage caused to individuals as a result of breaches of EU law [Joined Cases C46/93 and C48/93 Brasserie du Pêcheur and Factortame [1996] ECR I1029].

Therefore, national judges must be interconnected in their own country as well as in Europe. From 1996 we have developed a Network of Judges on EU Law in Spain. Ten judges (in civil, criminal, commercial, administrative and social matters) help their colleagues by promoting the European Law and help them with references for prelinary ruling to the European Court of Justice. The cooperation between the members of the Network and with our colleagues turns out to be very fruitful. There are not administrative structures or established procedures; we are just colleagues ready to inform, advice and connect to each other.

In September 2012, we were invited by the Dutch Network of Court Coordinators European Law (CCE-Network) for a meeting in The Hague supported by the European Parliament and the European Commission. It turned out to be an exciting experience. Judges from 10 countries with Judicial European Networks met and explained discussed how they organised their networks, whether by a model of general judicial cooperation (Netherlands and Italy) or more in a more specialised way (Spain). We concluded that national networks should be taken (also) to a European level.

A weblog like European Courts too could be an interesting way to interconnect and to exchange ideas and initiatives. Barriers must be lifted! We must overcome linguistic, cultural and legal differences by bearing in mind that our duties and tasks are similar. Networking for judges is an essential part of their work nowadays. It is hard to understand a contemporary judge not being interested in the progress being made by their colleagues in the same region, in the same country, in Europe or even all over the world.

Dr David Ordóñez-Solís is a Senior Judge in the Administrative Court in Oviedo, Spain and member of the Spanish Judicial Network on European Union Law


RESPONSE

From Rudolf R. Winter

Coordinating senior vice-president of the Administrative High Court for Trade and Industry (College van Beroep voor het bedrijfsleven) in the Hague, the Netherlands

It will not surprise that I support the view of my Spanish colleague David Ordóñez-Solís. In this era of ongoing Europeanization of the law judges throughout the Union find themselves more and more in a multilayered legal context.

Judgements of the Court of Justice of the European Union do not always give solutions or clues for the problems they encounter while doing their jobs. That is why there is a growing need among judges for the establishment of so called “circles of coherence”.

Horizontal coherence between national judges contributes to create sources of intellectual inspiration to help them in their daily work. A circle of interconnected networks of Court Coordinators European law could certainly be one of those “circles of coherence”.

Such an interconnected network could operate as a rapid deployment force, thus enabling judges and their staff to exchange visions and views during their daily work when answers are quickly needed.

Many of us know the situation in which we officially, according to the Cilfit-doctrine should lodge a request for a preliminary ruling and many of us know as well that we have often reason to refrain from doing so. Here an interconnected network, operating in a safe and secure digital surrounding, could fill a gap between the official Cilfit-doctrine and the day to day practise in the different judiciaries. Thus, more unity in the application of European law while reducing the number of references, without, of course, detracting from the role of the Court of justice.

I consider it as very encouraging that the European Parliament presented a motion for a wind up Resolution on 6 November 2012 ( B70000/000(RSP)), concerning Judicial training and Court Coordinators, in which the Parliament calls on the Commission, among others, to foster and sponsor national CCE networks and the emergent interconnection of the national networks of CCE`s. This month (January 2013) the motion is on the agenda of the EP for voting.

Reasons enough to keep up our fruitful cooperation!

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