The Notion of a European Judiciary. Prof. Stefano Civitarese Matteucci

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1 The Notion of a European Judiciary Prof. Stefano Civitarese Matteucci

2 Outline Judicial Accountability Legitimacy of the ECJ The idea of a Judicial Integrated Architecture in the EU The so Called Procedural Autonomy of Member States The Principle of Certainty of Law and the Dialogue Between Courts

3 What is accountability/1 Accountability to the law Compliance with the rule of law Accountability is a relationship between an actor and a forum, in which the actor has the obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgement, and the actor may face consequences Legal accountability can be equate with resort to courts Individual right of petition A functional independent adjudication Adjudicators interpret and apply publically affirmed legal standards Remedy that (declaratory of coercive) Remedy is final

4 What is accountability/2 How courts are accountable (if any) Tension between judicial independence and judicial accountability Political accountability versus independence Accountability to the law as a link to people s will Italian Constitution Art. 101: Justice is administered in the name of the people. Judges are subject only to the law German Basic Law Article 97 [Judicial independence] (1) Judges shall be independent and subject only to the law. This enhances independence and impartiality Too much independence can be undesirable as well Higher Courts, unaccountable to the maximum extent

5 Mechanisms of judicial political accoutability Indirect political accountability (regarding institutions and not individuals) is the only perceived as legitimate in contemporary democracies; direct accountability is just a matter of discipline (failure to display an appropriate behaviour; honour, etc.) Budget control and judicial salaries Judicial appointment and career Tenured and non tenured positions Political accountability and the threat of noncompliance The importance of the coercive apparatus of the State

6 Problems about accountability to the law One thing is to say that we do not want a system of so called telephone justice another is to substantiate what we mean by accountability to the law Especially a higher court which handles a good deal of principles, quite vague enunciates, etc. should perhaps be not too free from some political restraint; There are, however, some mechanisms: writing opinions, publishing dissents (common law tradition; unfamiliar in civil law)

7 Non Legal Forms of Accountability International jurisdictions; networks; dialogue Open trials Court monitoring Performance measurement Users' experience with the justice system User reviews of courts Data mining Social media

8 The European Court of Justice The role of the ECJ Activism/Democratic deficit Is it true that the ECJ is unduly activist or illegitimate? Comparison to other higher courts as to the existence of political accountability shows that they are pretty much cognate Example of appointment rules One can hardly claim the the ECJ is part of the democratic deficit Still problems of legitimacy remain See Lord Mance remarks [The Composition of the European Court of Justice/United Kingdom Association for European Law 19 th October 2011)

9 The more convincing idea is that legitimacy of the ECJ should be understood in connection with Member States legal systems Art. 4 of TEU: The Union shall respect the equality of Member States before the Treaties as well as their national identities European Judiciary as an integrated system Article 19 TEU 1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed. Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. Article 274 TFEU (ex Article 240 TEC) Save where jurisdiction is conferred on the Court of Justice of the European Union by the Treaties, disputes to which the Union is a party shall not on that ground be excluded from the jurisdiction of the courts or tribunals of the Member States. Article 267 (ex Article 234 TEC) The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

10 Procedural Autonomy No remedies rule It is a received view that the principle of primacy coexists with the principle of national procedural autonomy Case 33/76, Rewe Requirements of equivalence and effectiveness as limits to the functioning of national procedural autonomy Equivalence: rights deriving from EU law must be subject to the same procedures and guarantees as rights deriving from national law Effectiveness: national rules and procedures should not render the exercise of EU rights impossible in practice (practical possibility) The Court has, though, later developed a strong requirement of adequacy and effectiveness, going beyond practical possibility (the means is the principle of sincere cooperation) In some cases the ECJ requires national courts to make available a particular type of remedy (restitution, interime relief, State liability: Francovich)

11 Procedural autonomy/case law Difference between remedies and actions Interim relief [Factortame C-213/89] State liability triggered by the failure to implement EU law [Francovich C-6 and 9/1990] Penalties; compensation; restitution [Marshall C-271/91] and procedural devices To raise points of EU law ex officio (vs principle of demand) Van Schijndel C /93; van der Weerd C /05, Kraaijeveld C-72/95; Fazenda publica C-446/98; Eco Swiss China Time C-126/97; Oceano C /98 Finality of administrative and judicial decisions Kuhne and Heitz C-453/00; Kempter C-2/06; Kapferer C-234/04; Lucchini C-119/05; Olimpiclub C-2/08 Time-limits [Barth C-542/08; Visciano C-69/08] Standing [Janecek C-237/07] Burden of proof [Laboratoires Boiron SA C-526/04] Enforcement of EU law by individuals against the State/breach of EU law by individuals [State vs individuals, individuals vs individuals] Effectiveness as the key-tool used by the ECJ

12 Res Judicata Lucchini (recovery of unlawful State aid) Community law precludes the application of a provision of national law, such as Article 2909 of the Italian Civil Code, which seeks to lay down the principle of res judicata in so far as the application of that provision prevents the recovery of State aid granted in breach of Community law which has been found to be incompatible with the common market in a decision of the Commission which has become final Olimpiclub (effectiveness of EU VAT rules) In such a case as the incorrect application of the Community rules on VAT, a case previously decided between the same parties on the same matter by means of a judgment which has reached the authority of re judicata, relating to certain financial years, cannot be applied straightforwardly to a different year in case of re-litigation

13 What about Primacy? If primacy is to be intended as hierarchy (supremacy) then rules as res judicata should function in their normal and full way with no distinction between a EU RJ and many national RJs If primacy is to be intended as heterarchy (an idea relating to a pluralistic view of EU arena ), where there are structural constitutional values unreachable even by UE law, then RJ should be respected also to the ECJ in the name of Legal certainty Rome District Court dealing with the aftermath of the Lucchini judgment there is no rule in the Italian law which allows the government to discard the RJ, in the name of EU law, nor can this rule be considered implicit in the so-called supremacy of EU law over domestic law, which indicates the relationship between sources of law, and does not undermine the principle whereby the authority of RJ assesses a legal position in a definitive way, also (and perhaps especially) when such an assessment is wrong, because of the incorrect application of domestic as well as supranational law

14 CONCLUSIVE THOUGHTS_The Oustanding Value of Legal Certainty An integrated judiciary is more accountable and legitimate, but an integrated judiciary has to function giving full effectiveness to formal and guarantee rules of procedure just in the light of basic principles as the ones enshrined in Article 47 of the Charter of Fundamental Rights Can, in other words, an integrated judiciary really work without a robust and coherent role for procedural devices like judicial review, time limit, finality of administrative decision? See how in Olimpiclub and Lucchini there was not a problem of defending a citizen right but only of making primacy work

15 Main REFERENCES S. Civitarese Matteucci, Reflections on the Conflict Between Procedural Autonomy in the Domestic Forum and the Primacy of EU Law: Res Judicata as a Bedrock Principle of Italian Constitution, fortcoming [2014] K. Lenaerts, Federalism and the Rule of Law: Perspectives from the European Court of Justice, (2011) 33 Fordham International Law Journal R. Ortlep and M. Verhoeven, The Principle of Primacy versus the Principle of National Procedural Autonomy, (2012) NALL, April-June, 2. D. Smilov, The Judiciary: the Least Dangerous Branch?, in M. Rosenfeld and A. Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012), at 869 J.S. Delicostopoulos, Towards European Procedural Primacy in National Legal Systems, (2003) 9 European Law Journal 606. Groussot and T. Minssen, Res Judicata in the Court of Justice Case-Law: Balancing Legal Certainty with Legality? (2007) 3 European Constitutional Law Review, 385 HW Micklitz, B De Witte (eds), The Europen Court of Justice and the Autonomy of the Member States, (Interesentia 2012)