National Judges as European Union Judges. Knowledge, Experiences and Attitudes of Lower Court Judges in Germany and the Netherlands

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1 National Judges as European Union Judges Knowledge, Experiences and Attitudes of Lower Court Judges in Germany and the Netherlands

2 HiiL Focus: Judiciary in the internationalised world National courts are increasingly influenced by developments beyond their country s borders as they seek to uphold the laws of their land. As a result of the increasing internationalisation of law, the role of the national judiciary has been evolving to include these developments. This phenomenon features prominently on the European level where EU law has high expectations of how national judges should perform their task as decentralised EU judges. These issues are at the heart of the HiiL research agenda which focuses on the challenges posed to the maintenance and promotion of rule of law in a world of intertwined legal systems. In particular, this research fits within the remit of the HiiL Highest Courts research theme as it provides highest courts at the European and national level with the information on what lower national courts need in order to function in a multi-level legal order. HiiL Project research team Mark Wissink University of Groningen Tobias Nowak University of Groningen Fabian Amtenbrink Erasmus University Rotterdam Marc Hertogh University of Groningen

3 The experiences that Dutch and German civil law judges have with the application of European Union law are very similar: for most judges European Union law plays only a minor role in their daily work. The feeling that their knowledge of European Union law is insufficient is a consequence of this sporadic application; the sporadic application is not necessarily a consequence of insufficient knowledge. For most judges European Union law is just another set of rules they have to apply. Tobias Nowak University of Groningen This research project is funded by HiiL and conducted by the law faculties of the University of Groningen and the Erasmus University of Rotterdam, with the cooperation of the Raad voor de Rechtspraak and Ministry of Justice of North Rhine-Westphalia.

4 Knowledge, Experiences and Attitudes The research project reveals the practical problems that national judges experience when applying European Union law. It focuses on national judges at the first and appellate levels (excluding supreme courts) in the German state of North Rhine-Westphalia and in the Netherlands. It identifies to what extent the application of European Union (EU) law depends on: problems concerning knowledge of (researching) EU law, (negative or positive) experiences with applying EU law within national legal systems, and/or underlying attitudes of national judges towards their role as decentralised Union judges. Multidisciplinary research In order to study the experiences with, knowledge of, and views on EU law of private law judges, this project applied research methods from the social sciences, such as surveys and complementary in-depth interviews. I think ninety percent is practice but also some courses which I had in the course of time. But I have to tell you honestly, only one or two things of such a course stick. The rest is lost. Only if it is coincidentally about a subject you are busy with and you are really interested in listening. But if it is about let s say harmonious interpretation and you never encounter this, then it goes in one ear and out the other. Dutch Judge

5 Societal and scientific relevance The research: Provides the information on what lower national courts need in order to function in a multi-level legal order; Helps judicial bodies and legal scholars to formulate tools to help the national judiciary to apply supranational (Union) law within a national legal order; Provides solid data to test arguments put forward in the legal debate on the desirability and feasibility of internationalisation of law; Makes an important contribution to the field of legal consciousness studies in social science by focusing, unlike previous studies, on the legal consciousness of national judges, and applying the idea of legal consciousness also to the context of supranational (Union) law; Enables the improvement of judicial training programs. Members of the research group have already presented their findings to the Dutch Training Centre for the Judiciary and the Landelijk Overleg Civiel en Kanton. I started when European law was still something for specialists. I don t even know if it was an examined subject. [ ] All the knowledge I have, I have acquired subsequently. And with practitioners this usually means: not as a closed representation of a closed legal system but depending on an individual case. German Judge We know that European law actually becomes more important all the time; that the Court of Justice delivers increasingly interesting judgements. At the same time there is a tendency in the Netherlands to resist Europe. We used to be forerunners; now we are lagging behind. I think it would be foolish to let this happen in the field of law - such a step back. We have to be part of it, stay with it; make sure that we walk in front because Europe will be the future Dutch Judge

6 Main findings Most judges in the Netherlands and Germany support European integration and the EU. Judges trust the European Court of Justice. Most judges accept a hierarchy of norms in which EU law stands above national law. Most judges have to deal with EU law only sporadically. The perception judges have of EU law is mostly shaped by the problems they encounter in their work. Most judges report that EU law has a limited impact on the type of cases they decide in their daily work. Most judges consider their knowledge of EU law to be much lower than their knowledge of national law. Judges want more information on EU law. Judges have stated practical reasons for not applying EU law, such as high case loads, limited time for researching the law and insufficient knowledge. Most judges do not consider the much discussed democratic deficit as an obstacle for the application of EU law. It is unclear to judges what EU law s expectations of them as decentralised EU judges specifically entail. Recommendations Develop procedures and know-how within the courts (e.g. by temporarily setting up special teams of judges charged with deciding certain types of EU law sensitive cases). Organise training courses for judges in EU law, aimed at specific problems. In legal literature, address specific problems of EU law as part of a general discussion of the relevant (national) law. Have more guidance by the European Court of Justice and highest courts in explaining what the role of a decentralised EU judge specifically entails.

7 Shaping the Law of the Future The Hague Institute for the Internationalisation of Law (HiiL) is an international think tank on rule of law in a globalising world. We focus on the interaction between legal systems. We create actionable knowledge through debates, workshops, conferences, knowledge partnerships, action programmes and expert networks. HiiL is venturing on a unique and ambitious mission to think ahead of the curve about the changing nature of law in the next 20 years. [ ] Stimulating justice innovations HiiL is one of the founding partners of Innovating Justice, a new platform to improve the rule of law and access to justice. [ ] Strengthening research HiiL s research pursues innovation in five themes, which together provide a coherent perspective on the challenges globalisation poses to legal systems. HiiL Research Themes Rule of Law Private Actors Highest Courts Transnational Constitutionality Criminal Process and International Crime

8 Publication National Judges as European Union Judges Knowledge, Experiences and Attitudes of Lower Court Judges in Germany and the Netherlands Tobias Nowak, Fabian Amtenbrink, Marc Hertogh and Mark Wissink Eleven International Publishing ISBN: Hague Institute for the Internationalisation of Law (HiiL) Anna van Saksenlaan 51 P.O. Box AA The Hague The Netherlands Tel: Fax: