Interview with Judge Sacha Prechal Part II: Cooperation with national judges, embedding the internal market and transparency at the CJEU
“I would be very hesitant to put hearings on livestream”
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 the second part of the interview (the first part can be found here).
Cooperation with national judges
How important is a good dialogue with judges of national courts? How is your assessment of how the preliminary reference procedure works and the cooperation with the national judges?
The preliminary procedure works well and overall, the cooperation is good, I believe. Good cooperation is crucial, for a number of reasons: At the end of the day, it is the national courts who apply EU law, so there is a certain relationship of dependency. For the Court of Justice, responding and assisting the national judges is crucial for the application of EU law.
One of the things that are important for the Court is how cases are presented. Where the reference is not clear or incomplete, much time has to be devoted to understanding the case and in particular, and this is more important, understanding the problem of EU law the referring judge has encountered. Only when you understand the problem can you give an appropriate answer.
Is it for this reason that questions get rephrased in the judgment?
Sometimes. Sometimes it is also more practical to group certain questions together. It can also be a problem of the system of EU law which might be slightly different from a system of national law and that is why the questions and answers would not fit. The question is rephrased and then the Court can answer the questions in accordance with the logic of EU law.
What is very important here is that the judges explain the facts and the applicable law well, as well as the problem of EU law at issue, and that they do it in a clear fashion when they make a reference. Theoretically, what would be helpful is to have a foreign lawyer from another legal system look at those questions before a national court refers them. I say this because the reporting judge is always a judge from another Member State – I will never get questions from the Netherlands. So when the national judges draft the preliminary question and the whole reference, they must realize that they are talking to someone who is not familiar with their legal system. It is exactly here where there remains room for misunderstandings. This is very understandable of course. I think it might be rather difficult for, for instance, a Dutch lawyer to write something down when he or she is thinking all the time ‘ok it could be a Greek or a Finnish judge who will be the first person responsible for my dossier’. It is not easy to make a good preliminary reference; there is a lot of effort that needs to be put into this.
Is there any form of cooperation or a network among national judges in this sense?
Well, there exist various networks; formal networks, less formal networks, I believe there is a network for national judges in asylum cases; in administrative law there is an important network called ACA which is run officially by the Belgian Council of State; there is a network of competition law judges. But I don’t think there is a sort of exchange of checking whether questions referred to the Court are sufficiently clear.
An additional problem for preliminary references is related to translation. The references should not be too long, but often they are too long. Too long is 37500 characters or more. Then the translation service is going to make a summary, which of course means that there is a risk that things are not well understood. It also means more work for the translation service. If you talk to national judges about this problem – there have been a number of references from the Netherlands which have been too long – then they explain that EU law is just one of the problems in the case at hand and that they are deciding the case as a whole. Obviously, for them it would be extra work to write a separate decision making the reference. I do understand this and I respect it. In such a case, however, it makes sense to put the focus on EU law and the questions referred in this more extensive judgment in such a way that it can be easily detached and taken out.
Is there some kind of cooperation between the Court and national courts to resolve these issues?
These types of issues are typically discussed when the national judges are visiting the Court. And these are the types of questions I discuss with the Dutch judges when I meet them. There are guidelines on the website of the Court for how to pose preliminary questions which have recently been rewritten slightly in light of our new rules of procedure. There was an important amendment to the rules of procedure last year. The guidelines look very helpful to me. But unfortunately I find out from time to time that national judges do not know about their existence.
What is also helpful is when national judges reflect in their reference on the questions related to EU law and explain why there is, in their view, a problem of Union law which needs to be resolved in order to decide the case before them. And if possible, and quite often the German jurisdiction do that, they should indicate what the solutions could be. All this type of information makes it easier for the Court to understand what the problem is. And in this way we can be more supportive and help the national court.
Society, markets and the role of the CJEU in the European Union
The CJEU is sometimes criticized for having too much of a market-oriented focus in its judgments at the expense of other societal interests. What are your thoughts on this?
Well, the problem is of course that the Court is working with rules that have been written for market integration. At a certain moment there are limits of what one can do with these rules. I do not think I can fully agree with the criticism to the extent that, as the case law shows, there is quite some room to take into account public interests such as environmental or social concerns. Look for instance at the case-law concerning the free movement of workers: I think there is a very important social dimension in that case-law, where the Court has made plain that we are dealing with human beings and not only with ‘labour as a factor of production’. In relation to certain individual cases I can understand the concerns about the judgements putting emphasis on market values, but I do not think that overall it is a correct picture.
Another factor to be taken into account is that in a preliminary procedure the Court is not limited only by the law itself, but also by what the national judge is asking. You cannot just start to give answers to questions that have not been asked. Another important aspect, which is perhaps less visible, is that the Court is dealing with cases on the basis of what has been discussed before the Court. So if certain aspects have not been discussed, in the written observations or in the hearing, it is difficult for the Court then to raise new legal issues. At the end of the day, it is a matter of having a fair trial, even in a preliminary procedure where, officially, the so-called ‘interested persons’ submit observations. There is an aspect of audi et alteram partem; decisions are taken on the basis of a two-sided discussion.
Do you think that in the next decade or so the Court will play as important a role as it has in the past? Or do you think that things like the growing importance of budget issues and foreign affairs will mean that integration is less about law?
It will depend very much on the topics. You mention subjects like the current financial and budgetary issues or foreign affairs. Those are of course increasingly important. But at the same time – at the end of the day – even those political issues might find their way to the Court as it is often a matter of competence – who can do what and to what extent. I think that in relation to the sovereign debt crisis, Pringle was only the beginning of the cases. I am expecting to have more cases before the Court in the future on the new budgetary legal framework, for instance. Another aspect which is important is that EU policies are often translated into binding rules, and when subsequently disputes arise the logical step is to go to a court. So there will still be an important role for the Court and apart from that, the rest is still rolling on. All the other EU law that is there is not abolished. In terms of cases brought to the Court, the internal market, which has always been very much the trigger of the integration process, is perhaps becoming less important. However, instead of that there are a lot of cases coming in which deal with fundamental rights issues. I think that, to a certain extent EU fundamental rights will, despite all the limitations that are there in the Charter, function as factors that integrate the system, keep it together. So, I am not very pessimistic about the role of the Court from this perspective, in the sense that the Court is going to be less important. I am more pessimistic about the workload. The ever increasing workload is a matter of great concern and, among other things, the Court has to think about solutions in terms of limiting the incoming cases. At the moment having 1000 cases per year pending, there is a certain limit to the system as it exists today.
Would you be in favour of a US type of system where the Court can pick and choose its cases?
‘Pick and choose’ is not the only way how to limit incoming cases. In addition to that, one may also think about changing the jurisdictional system in other ways. Ever since early nineties, starting with the well-known article by Jacqué and Weiler, much has been written on the various solutions, more radical suggestions for reform of the ‘judicial architecture’ included. I would almost say that by now, all the possible options and their respective pros and cons have been on the table several times. However, at a certain moment a solution has to be taken, to start with on the criteria according to which the cases should be filtered. And in this respect a distinction should be made between the appeals (that is one third of the work) and other cases.
Recently, there have been important changes in the statute and in the rules of procedure. So the Court can go on for let us say two or three more years. But in the longer term more far reaching measures will be necessary and the Court should start to think about it now.
Recently the CJEU organised a conference on 50 years since the delivery of the Van Gend en Loos judgment. We all could follow this conference through livestream. Would you be in favour of making hearing of cases available through livestream too? For instance, to make it easier for academics to attend the hearings.
Let them go to Luxembourg I would say and attend the hearing. I would be very hesitant to put hearings on livestream for a number of reasons. I think that in the first place, people will start to behave in a different way than they would normally, when they know they are going to be recorded and put on the web. The hearing is already quite a formal setting of course. Add to this the element that they are also being filmed: I have doubts about it. In fact, I am very much in favour of sort of ‘Chatham house rules’ in such a setting. I believe that you get much more useful information than you get in settings which are absolutely public and spread all over the world. Another complicating factor is the languages: what language version should be put on livestream? In contrast to Strasbourg, for instance, the pleadings before the Court can be in many languages. Should we put the interpreters on livestream too? I do not think this would be a good idea.
Further, there is also a lot of nuance in pleading and law can be very subtle. When you put a hearing on the Internet – with the way media deal with those things – there is a risk that words and arguments are taken very much out of context; everything needs to be translated in kind of conflict language, very basic one-liners. I don’t think the hearings are a very good podium for that. They do not merit being treated in that way.
There are judges at the Court that still find time to contribute to the academic debate. Do you still have time to publish?
I wonder how they do that. Allan Rosas and Koen Lenaerts do it, for example. There is a decreasing amount of time you have for academic work and talks or teaching. When I compare the situation to twenty years ago, there is an enormous difference. Of course, we are appointed to decide cases and not to write articles and give lectures, but it is a pity: in order to have a communication with the outside world and with national judges, it is important to give talks and to write. I have a number of books to ‘maintain’ (second, third etc. editions) and I try give talks as much as I can to national judges or other audiences, like students. However, it is not easy to fit it into the schedule.