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CEEMC 2014 CONFERENCE

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ruairi oneill

on 23 April 2014

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Transcript of CEEMC 2014 CONFERENCE

THE EU AND ITS JUDICIARY
Morning Session chaired by
Maciej Szpunar AG

The Invasion of Italy
1943, Allied Powers invade Italy from the South.
Franklin thought that a campaign in Italy to be inefficient.
Italy intended to be US's entry point.
Compromise made at Trident Conference stating Italian campaign depended on the success of the European campaign through France.
Mountain ranges in Sicily need to be captured to secure shipping routes.
Sicily
"Soft Spot"
Allied Forces
Allied Powers wanted to eliminate Italy from Axis powers, battle would also distract German forces
A celebration of judicial synergy
Pavesi
http://streaming.factsonfile.com/PortalPlaylists.aspx?aid=14368&xtid=41473&loid=83798
The Outcome
The Americans send in infantry
& British send in air support into Italy
Southern Italy is conquered, but Germans hold at Salerno
many casualties on both sides
Stalemate due to the winter and rain

The Court is now a large institution: consequences?
Access to knowledge on EU law is no longer the privilege of the EU institutions: consequences?
Issues to be faced by CJEU no longer focussed on EU law versus national law but perhaps EU law versus national culture and identity: consequences?

The prognosis for the future

Several members of the European Courts have come from academia
Participation in national and international conferences organised by Universities
Encouragement of visits from academics and students to CJEU
Willingness to write for learned journals and to deliver public lectures
Legal secretaries from academia

Partnership with academia


Prof Rosa Greaves, Universities of Glasgow and Oslo

Email: rosa.greaves@glasgow.ac.uk

The EU and its Judiciary

…….and many thanks for listening

END

What about more recent times?

EU competence has expanded into areas of economic and social activity not imagined 60 years ago

EU law (constitutional, institutional and substantive) is an essential component of legal education





Enormous influence of the Court’s case law on:

the direction of some of the Commission’s policies
Member States implementing and abiding by EU law
academics (research and teaching)
law and social science students
practitioners pleading before national courts
national judges

The consequences of these partnerships?

Federation Internationale pour le Droit Europeen (FIDE)
Willingness to address national associations of lawyers
Some cabinets encourage practitioners to spend a year as legal secretaries
Judges have returned home to high judicial office

Partnership with practitioners


Consten & Grunding v Commission [1966]

Commercial Solvents v Commission [1974]

Continental Can v Commission [1973]

Partnership with the Commission

Preliminary references
Van Gend en Loos [1963]
Costa v ENEL [1964]
Van Dyun [1975]

EU law is now pleaded before national
judges with ease in a significant number of MSs




Partnership with national courts

A small court of 7 judges and 2 Advocate Generals: a community

Some of the judges/ AGs directly involved in drafting the Treaty eg Lagrange

The importance of the preliminary reference procedure

Period of creating important and long-lasting Partnerships




www.glasgow.ac.uk/law

The CJEU in the 1960s and early 1970s

Created a new legal order

Declared national courts to be EU courts

Laid down the fundamental principles of the EU legal order

Influenced the direction of the most successful EU policy ie EU competition policy




What an achievement of this 1950s ‘international’ court!

Carsten Zatschler
The CJEU as legislator
Dr Wojciech Wiewiorowski
Judicial Review of European Privacy Law
HE Beata Jaczewska
The CJEU as last instance for policy making by national government
Advocate General Maciej Szpunar
The EU and its courts, - A decade of challenges faced and overcome, looking to the future
LUNCH
THE EU AND ITS JUDICIARY
AN EU LEGAL SYSTEM THE CHALLENGE FOR NATIONAL COURTS
Afternoon session chaired by
Eleanor Sharpston AG

Professor Stanislaw Biernat
The Constitutional Court’s competence to check that EU secondary legislation complies with the Polish Constitution
Judge Jan Passer
The National Hierarchy of courts within the European Union judicial structure (the Landtova case)
Professor Tomasz Koncewicz
Polish Constitutional Court and EU law. Actor or Spectator?
Professor Michal Bobek
What role for Constitutional Courts within the EU Judicial Structure?
TEA
BREAK

General activity of the Civil Service Tribunal
New cases, completed cases, cases pending (2009-13)
- Annual Report of the Court of Justice 2013 -


„The General Court - in spite of its substantial efforts - can no longer handle the growing workload.
(…)
The present increase in workload stems from
the increase in the number of admissible classes of action;
the increase in litigation following the 2004 and 2007 accessions;
the litigation engendered by the increase, resulting from greater European integration, in the number and variety of legislative and regulatory acts of the institutions, bodies, offices and agencies of the EU; and
the growth of litigation relating to Community trade mark applications.

It should be pointed out that many of these causes were not foreseen.”

EP Committee on Legal Affairs Report of 10 July 2013
on the draft regulation of the European Parliament and of the Council
amending the Protocol on the Statute of the Court of Justice of the European
Union by increasing the number of Judges at the General Court

General Court Completed cases – Duration of proceedings in months – judgments and orders (2009-13)

General activity of the General Court
New cases, completed cases, cases pending (2009-13)
- Annual Report of the Court of Justice 2013 -

Civil Service Tribunal – Completed cases –
Duration of proceedings in months (2013)

Court of Justice – Completed cases – Duration of proceedings in months –
judgments and orders involving a judicial determination (2009-13)

General activity of the Court of Justice
New cases, completed cases, cases pending (2009-13)
- Annual Report of the Court of Justice 2013 -

Przemysław Kamil Rosiak
Attorney-at-Law at KPMG D. Dobkowski LP
member of the CCBE Permanent Delegation to the Court of Justice
and the General Court of the European Union and the EFTA Court


‘Article 48a (of the Statute of the Court of Justice):

In respect of the Judges to be appointed per Member State, the right of nomination shall lie with the government of the Member State in question.’

'Article 48b (of the Statute):

1. The additional Judges shall be appointed regardless of nominees' Member States of origin.
2. During a procedure to appoint one or more of the 12 additional Judges, all Member State governments may submit nominations. Furthermore, Judges retiring from the General Court may nominate themselves in a written submission to the chair of the panel referred to in Article 255 of the TFEU.
During a procedure to appoint one or more of the 12 additional Judges, the panel referred to in Article 255 of the TFEU shall give an opinion on nominees' suitability to perform the duties of Judge of the General Court. The panel shall append to its opinion on candidates' suitability a list of candidates having the most suitable high-level experience, by order of merit. That list shall contain the names of at least twice as many nominees as there are Judges to be appointed by common accord of the governments of the Member States, provided that there is a sufficient number of suitable nominees.’

EP Committee on Legal Affairs Report of 10 July 2013 – cont.

Advocate General Eleanor Sharpston
A tribute to collaboration and harmonization?
ADVOCATE GENERAL SHARPSTON AND ADVOCATE GENERAL SZPUNAR
SUMMARY AND CONCLUSIONS
THE CHALLENGES OF HARMONISING A WEALTH OF LANGUAGES

Different alphabets
Inflected languages

Information technology

‘The social partners’
‘The Community industry’
‘The information society’

Eurospeak

The ‘conceptual’ challenge
Particularly (but not only) as regards the differences between the common law system used in England and Wales, and also Ireland, and the civil law systems.
Constitutional issues.

THE CHALLENGES

At one time, all the Court’s case-law was published in all the official languages
Budgetary constraints now mean that those that are considered to be less important or less significant are published in French and the language of the case only.

Budgetary pressures

All judgments and orders of the Court of Justice are drafted in French
Translation errors can occur, particularly when people are working under pressure

The human factor

Regulation No. 1 determining the languages to be used by the European Economic Community
The Rules of Procedure of the Court of Justice (Chapter 8 of Title I, ‘Languages’)

The rules

The principles:
Access by the Union citizen to legislation and case-law in his own language
The citizen can litigate before the Courts of the Union in his own language

A ‘WEALTH’ OF LANGUAGES

David Guild
Cath Howdle
The role of the legal secretary (référendaires)
Discussion and Questions
Panel Discussion and Questions
Vice-President of the Polish Constitutional Tribunal
UK Barrister and former Head of Cabinet for Judge Vajda, the UK judge at the European CJEU
Inspector General of GIODO
Former Polish Vice-Minister for the Environment
Supreme Administrative Court of the Czech Republic
Professor of European Law at the College of Europe in Bruge
Head of the English-language translation unit at the CJEU
Legal and Executive Affairs Unit at the EFTA Surveillance Authority
Most sensitive/current issues related to the EU courts from practitioner’s view
To be continued...

[The Union] constitutes
a new legal order


Case 26/62 Van Gend en Loos

ECJ:
Article 5(1) of Reg No 261/2004 provides that in the event of cancellation of a flight, the passengers concerned are to have the right to compensation. By contrast, it does not expressly follow from the wording of the Reg that passengers whose flights are delayed have such a right.
Given that the damage sustained by air passengers in cases of cancellation or long delay is comparable, passengers whose flights are delayed and passengers whose flights are cancelled cannot be treated differently without the principle of equal treatment being infringed.




The ECJ as Legislator


CEEMC Conference, 24 April 2014






Carsten Zatschler
Barrister (England & Wales)



.

“Comparable situations must not be treated differently, and different situations must not be treated in the same way”
Q: Is the situation of male and female policyholders really comparable in all branches of insurance?
A: It depends on the context of the measure which makes the distinction.
Here: The express purpose of the Directive is the application of unisex premiums … to a certain extent.

The “Comparability Objection”

1. It is up to the legislator to decide whether to take action; but if it takes action, it must contribute, in a coherent manner, to the achievement of the intended objective.
2. Transitional periods were permissible in principle in moving to unisex premiums.
3. Art 5(2) permits Member States to allow insurers to apply unequal treatment without any temporal limitation.
4. This exemption from the unisex premium rule works against the achievement of the equal treatment objective, which is the purpose of the Directive, and is incompatible with Articles 21 and 23 of the Charter.

The ECJ’s Reasoning

Notwithstanding paragraph 1, Member States may […] permit proportionate differences in individuals’ premiums and benefits where the use of sex is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data. […]

Article 5(2) – The Derogation

Article 5(1) – The Principle

Member States shall ensure that in all new contracts concluded after 21 December 2007 at the latest, the use of sex as a factor in the calculation of premiums and benefits for the purposes of insurance […] shall not result in differences in individuals’ premiums and benefits.


‘Actuarial factors’


Recital 18: The use of actuarial factors related to sex is widespread in the provision of insurance; the use of sex as an actuarial factor should not result in differences in individuals' premiums and benefits.

Recital 19: Certain categories of risks may vary between the sexes; for contracts insuring those types of risks, Member States may decide to permit exemptions from the rule of unisex premiums and benefits.

Insurance – Article 5

Directive 2004/113 is invalid to the extent that:
it is is based on the premiss that the respective situations of men and women with regard to insurance are comparable,
yet it permits Member States to maintain without temporal limitation an exemption from the rule of unisex premiums and benefits.

C-236/09 Test Achats

“Is it permissible to treat delay as a de facto cancellation?
Any numerical threshold for qualification for a right delineates two groups – the fortunate and the unfortunate – and in establishing that threshold the legislator must be careful not to infringe the principle of equal treatment. The legislator has the right to pick a figure and then defend it …
The Court cannot. Any figure one cared to pick would involve reading into the Regulation something it plainly does not contain and would be a judicial usurpation of the legislative prerogative.”

AG Sharpston

Reg No 261/2004 must be interpreted as meaning that:
A flight which is delayed, if it is carried out, is delayed, not cancelled.
Passengers whose flights are delayed may rely on the right to compensation provided for passengers whose flights are cancelled.
3 hours = €€€

C-402/07 Sturgeon

C'est une expérience éternelle que tout homme qui a du pouvoir est porté à en abuser. Pour qu'on ne puisse abuser du pouvoir, il faut que, par la disposition des choses, le pouvoir arrête le pouvoir
Livre XI, Chapitre IV “Ce que c’est de la liberté”

Il n'y a point … de liberté si la puissance de juger n'est pas séparée de la puissance législative … . Si elle était jointe à la puissance législative, le pouvoir sur la vie et la liberté des citoyens serait arbitraire: car le juge serait législateur.


De l’esprit des lois

Charles Louis de Secondat, baron de La Brède et de Montesquieu

Judiciary

Legislative

Executive

The Three Branches of Government according to M.

The Union Legal Order

Livre XI, Chapitre VI “De la constitution d’Angleterre”
Full transcript