“In the past it was a bit of a family, now it is a bit of a factory.”
A while ago we had the privilege of interviewing Judge Sacha Prechal for the European Law Blog about her work at the Court. Sacha Prechal is the current Dutch Judge at the European Court of Justice since June 2010. Before becoming a judge at the Court she was professor in European Law at Utrecht University. She is also a member of the Royal Netherlands Academy of Arts and Sciences and has worked as a legal secretary at the Court prior to her academic career.
This is your third year as a Judge at the CJEU, how has it been so far? How was your start at the Court?
It was a matter of getting used to a completely different working environment than at the university. By now I have learned how to manage huge quantities of paper and work – what to read at what moment – but it took me some time to discover it. I also had to get used to the rhythm of the work. Moreover, the work can be surprising in terms of the problems and questions the Court faces and how these are resolved.
Did the former Dutch Judge Timmermans brief you when you started working?
Not really. He left and I started the next day. The best way to learn things is to discover them yourself, isn’t it? I took over his staff, yes; apart from one legal secretary who left and who was replaced by a legal secretary who came from the General Court. Two of the legal secretaries had already been there with Judge Timmermans which was pleasant because they are very experienced and very nice people as well.
If you compare your work now with academic life, how different is it?
There are a lot of differences of course. Let me start by saying that to work at the Court is to work in a straightjacket. It is a nice straightjacket, but it is a straightjacket. The freedom you have in academia to organize your work and decide for yourself what to do, disappears. To work at the Court puts you in a sort of straightjacket because of the organizational structure of the Court, which you can hardly influence: the planning of the hearings, the meetings and the deliberations.
Also, there is not really a choice as regards the topics one has to deal with. In principle, the president’s cabinet assigns the cases according to a list.
What is also different is that you move from one case to another.
Sometimes, there may be very detailed problems in cases. In academia work was, at least in the way I did it, much more long term and general in perspective. I am not saying that the Court does not have a more long term perspective. The judgements have to fit in a kind of idea what Union law is, where it stands and how it should develop, but the emphasis is different. The emphasis is on deciding case by case, while in my academic work it was rather the other way around. I still miss academia though, or well, I don’t really miss it because there is also a lot of administration that I no longer have to deal with. In any case, I still have quite some contact with academia by being on law review boards, teaching from time to time, supervising PhD theses and attending seminars and conferences. I think it is extremely important to have those contacts. What academics produce may be compared to a mirror for our work in Luxembourg. For similar reasons I find it very important to talk to national judges. Looking in the mirror on a regular basis in order not to get detached from reality serves as a sort of feedback.
But as a judge deciding cases, are you not more in touch with reality than as an academic?
Yes, it is not that one is detached from the problems that are at stake in a concrete case, but it is good to get feedback on your work, in particular on the question of whether people can understand it. In my case, I also appreciate criticism in a sense, because it makes you think further, it makes you question whether something was a good and clear decision or not, etc. It helps you to go forward. One may consider it a sort of indirect debate, because as judges we do not really have debates with the outside world.
Now that you are a judge, do you think that academia is sometimes detached from the real world?
Oh yes, definitely. But it depends a bit which academics you talk about. There are academics that develop theories and work on a very abstract basis. But particularly in law I would recommend to everybody, just to work in practice at least for half a year to see how the law functions. I would call it a kind of reality check. Law, after all, is about people and how everyday life works.
Before being appointed judge at the CJEU you have held a number of other positions. In a previous period you were a legal secretary at the CJEU. Is the Court very different now from when you first worked there?
I was at the Court in the late eighties, early nineties. At the time around 300 or 400 people worked at the Court, at least when I started. Now there are more than 2000 employees and three different jurisdictions: the Court, the General Court and the Civil Service Tribunal. So perhaps one can say: in the past it was a bit of a family, now it is a bit of a factory. How to deal with a case, how judgments are made, how the deliberations proceed: that has remained the same to an important extent. What is different is the pace of the work. There are a huge number of cases coming in these days. For instance this year we have already had more than 400 (November 2013) preliminary references coming in. At this moment there are some 575 preliminary cases pending and this year we have altogether some 885 cases pending. The steadily increasing number of cases puts pressure on the production and mainly for this reason this pressure is much higher than it was 20 – 25 years ago.
What has also changed is the computerization of the Court. When I started as a legal secretary we made drafts with pencil. You can probably imagine how huge the difference is. Also in terms of searching for relevant cases and doing case law research – now you can just use the computer for that. Compared to the past, this has really drastically changed.
The cooperation among the judges [changing from 11 to 28 in number ed.] has changed too. Some 50% of the cases are dealt with by a chamber of five judges. I call this chamber of five a type of biotope, as you are very much in contact with those five judges of your chamber on almost an everyday basis. From time to time you also see other colleagues from other chambers, for example when you are sitting with them in the Grand Chamber or at the weekly general meeting of the Court. This of course has an impact to a certain extent on how well people know each other as well as on the cooperation.
What has also changed compared to 20 -25 years ago is the law itself. When I first worked at the Court, cases mainly concerned competition law and internal market law, apart from some directives and institutional issues. But now cases concern international private law, recognition and enforcement of judgments, parent responsibility, European criminal law, sanctions against possible terrorists, etcetera. These sanctions type of cases are a completely new area. I had never imagined when I was there 20 years ago that something like that would be dealt with by the Court of Justice.
Does that create additional pressure on the workload?
It doesn’t make life easier that is for sure. One must be able to jump from one area to the other. You could call it a certain intellectual pressure. Though, I think if somebody is a good lawyer, he or she should be able to deal with different areas. But of course, when a person knows more of a particular topic, it may facilitate the work.
Is the work pressure higher now than it used to be with the focus so much on production?
Yes. I think one of the major concerns at this moment is how to handle the workload of the Court. You really see the number of cases going up in a steady line. From 2014 onwards all national judges in criminal cases will be able to make references. Up until now there is this limit that only the courts of Member States having made a declaration to that effect can make a reference. So that will increase the number of cases coming in.
The Court is very much trying, particularly in the area of the preliminary procedure, to keep the time it takes to hand down a judgment as short as possible. It was somewhere in 2003 I believe, that a preliminary procedure took 23 months. Today it is approximately 16 months. To keep this time-frame short is very important, because a reference is only an incident in the national procedure. So you can imagine that from the perspective of an individual who is involved in such case, that it should really move on. The question is of course: how to keep the delays as short as possible, while also keeping up the quality of work? That is an important issue. And it is very much a concern how to find the right balance. The Court has taken various internal measures to secure both the quality and the space of the work. Recently a fifth chamber of 5 judges has been established. But, I must admit, in certain cases I would like to have some more time to read and reflect.
Has a solution to the work load been sought in creating certain ‘de facto’ specialized chambers?
What you see is a sort of ‘ad hoc’, temporary specialization, which is in fact a matter of efficiency.
Basically, the cases are distributed among the judges by the President’s cabinet on the basis of a list. But if a person is already a reporting judge in a certain type of case – for instance, in the passenger rights cases such as Sturgeon and Nelson– it would not be very wise to give the next case to another person. So what you see is that for a certain period of time cases are given to the same person if they are closely related to each other. However, at a certain moment, it is over. Then a case goes to someone else. I also have the idea that there is always someone in the Court who gets a case of a similar nature in order to have a certain balance. This is to avoid a too specialized case law by one judge or by one chamber. So there is a sort of thematic ad hoc specialization, in the sense that for instance direct taxation cases go for a while to a certain judge.
I do not think it would be very wise to have specialization in the Court by creating permanent specialized chambers or something like that. One of the reasons against such chambers is that also so-called ‘specialized’ cases may contain general issues, of transversal or horizontal nature, and decisions on that should not be left to specialized chambers. But I must admit that there might be also certain advantages to specialization.
Does this way of working fit in with the purpose of the ECJ as almost a ‘constitutional’ court in a way?
Well… in a way the ECJ can be considered a constitutional court. But that is also because it is quite often that the constitutional judgments attract the most attention from the outside world. You should realize that the Court is dealing with quite some cases that are not constitutional. Customs cases, VAT cases, subsidies cases, intellectual property cases relating to the European trademark. But there can be intellectual property cases that can be closely related to the problems of the internal market or the protection of fundamental rights. Both the internal market and fundamental rights are horizontal issues.
I could imagine that VAT and custom cases could be put in a sort of specialized chamber for a while. However, the question is that you never really know whether in these type of cases a more horizontal or constitutional issue may arise.
There was a debate at a certain moment on whether preliminary references should be deferred to the General Court (GC). People who looked into this question discovered that it was extremely difficult to find criteria for deciding what sort of questions should go to the GC, because also in very specialized areas a general issue can pop up which should be dealt with by the Court as such.
Apart from that, it may have certain advantages, I think, that also non-specialists look at a case, giving a case a ‘fresh look’. They can function as a sort of check: is the decision still comprehensible?
Is it difficult to comprehend all these different areas? As an academic you usually have your field of expertise.
As a judge you are in a different position. The arguments are presented to you by the parties. Of course, all the time you have to be aware that the parties are defending their point of view and that they will look as far as possible for arguments that support their point of view. Nonetheless, as a part of the process there is this dialogue between the parties which gives a certain picture of the case. Furthermore, this picture is often completed by an Advocate General’s Opinion and indeed, it may be necessary to do some additional reading, certainly in areas of law that are not familiar to you.
To what extent do the parties’ submissions, those of the Member States’ governments and those of the institutions, help in drafting a judgment?
I must say that the quality of the submissions differs. Sometimes they can be very helpful and sometimes not. It differs very much from case to case. I also have the impression that the agents of Member States and of the Commission – the Commission is important because they submit observations in almost every case – are working under very hard pressure, not having really much time to prepare their observations.
How does a case get referred to the Grand Chamber?
The reporting judge studies the whole file and drafts a preliminary report. Then the draft preliminary report is sent to the Advocate General who is responsible for the case. Once the reporting judge and the Advocate General agree on the content of the report and the propositions made in that report, the preliminary report is submitted to the general meeting of the Court (attended by all judges and Advocates General). It is the general meeting that decides whether a case should be referred to the Grand Chamber or not. In this respect, the proposal of the reporting judge and the Advocate General is important. The rule of the thumb for such a reference is whether the case raises new and important points of law to be decided.
The interesting thing is that often you see that the decision is either to refer the case to a very small chamber which deals with routine cases or to the Grand Chamber. It reflects a bit the choice whether the Court wants to continue with the old case law or whether there is a reason to depart from the case law.
It may also happen that a Member State asks for it. Once I was teaching somewhere and there was a question from a student whether the Advocate General’s Opinion matters or not. The student said quite angrily that the Court was neglecting Advocates General because the student had seen a case decided by the Grand Chamber and there was not even an Opinion. Well, the problem was in fact that the case was very simple, and the Advocate General did not want to give an Opinion, but the case had to go to the Grand Chamber because a Member State wanted it.
Does the language of the Court (French) have an influence on the way cases are decided?
It is good to know that approximately 30% of the time for delivering a judgement goes into translation. So basically, after deduction of the ‘translation time’, a preliminary reference takes about 10 months. The language complicates life at the Court that is for sure, in terms of time and in terms of understanding.
Does a judgment go back to a chamber after it has been translated to see if it fits with the intention of the judges?
No, not to the chamber that has made the decision. In a case you basically have two languages: the working language of the Court, which is French, and the language of the case. So in a case referred from the Netherlands the language of the case will be Dutch. The chamber deciding the case will work in French and the judgement will be subsequently translated into Dutch [the official language ed.]. Before the decision is made public though, the translation will be checked by my cabinet, in the first place to see if everything has been correctly translated. Sometimes translators themselves come with questions where they are uncertain. And it may happen that my cabinet will go back to the reporting judge to discuss whether the translation adequately represents what the judges’ intentions are. So there is space for consultation.
Are different viewpoints adequately represented before the Court?
That depends. It may happen, for instance, that all Member States who intervene in a preliminary reference procedure choose for one line in order to defend a piece of legislation while there is perhaps one single individual defending his or her position. But what counts, at the end of the day, is the substance of the argument, not the quantity.
How much time do you get to do research of your own?
Not much. I do some reading if it is necessary in order to prepare a case, in particular on issues I am not very familiar with. The judges may also ask for a research note but that is something that needs to be approved in a general meeting of the Court. The research and documentation department has limited resources. I must admit that there are some cases that keep me busy all the time, like when I am working in the garden or doing a wash.
In particular, in a case in which you are the reporting judge, it may be necessary to do some background reading for the very simple reason that the reporting judge has the lead, so to say, in that case, together with an Advocate General if an Advocate General is involved.
For a case a reporting judge has in fact six weeks to draft the preliminary report after all the translations have been finished and after all the observations have been made or documents submitted. It is important that you really already understand at the stage of the preliminary report what a case is about, what the points are. The report goes to the general meeting and there the decision is taken to what formation it will go, whether the Court wants to ask the parties to concentrate their pleadings, whether there should be an opinion by the Advocate General, and so forth. For the judgment itself you also get approximately six weeks after the Opinion. And that would be fine, but there are a lot of other things you need to take care of in those six weeks, too. There are other cases to be followed, hearings and deliberations in the Grand Chamber, the chamber of five and the chamber of three go on as well. So you do not really have six weeks during which you can only work on the draft judgement in one case.
Do you spend a lot of time in meetings with other judges?
The deliberations are not the most time consuming thing. More time consuming are the hearings. Also because you never know what may happen at the hearing or how the parties will respond to questions. A while ago, for instance, there was a hearing scheduled for 30 minutes, but it took us three hours because of all the questions and answers and reactions. We are now reflecting within the Court how to improve the hearings to make them more helpful. Sometimes hearings can be repetitive in relation to what the parties have already written, for instance. This is why the Court asks more and more for concentration of pleadings on a certain point and the parties also receive questions to prepare. It is important at the hearings to get things straight that are still unclear in the file and to give the parties the opportunity to react to the arguments rather than to have just a repetition of what has already been submitted in writing.
Part II of this interview will be published tomorrow.