The Role of the National Judge in the Judicial System of the European Union

Speech by Diana Wallis Vice President of the European Parliament Member of the Legal Affairs Committee delivered to Europe Week Giessen Germany on Mon 5th May 2008

President, Minister, Ladies and Gentlemen,

It is a great honour to be here with you for the opening meeting of this exciting European week. I would in particular like to thank the Regional Government and Chancellery of the State of Hessen and the President of the Administrative Court of Giessen (Prof. Dr. Roland Fritz) for making this event possible.

The subject of my speech today, "The Role of the National Judge in the Judicial System of the European Union", also the title of a report which I am currently piloting through the European Parliament as rapporteur, is particularly important for the ongoing construction of legal Europe.

It is important first of all because there is a considerable lack of symmetry between, on the one hand, the powers vested in national judges by Community law, and on the other hand, the level of training, support and recognition afforded to them at all levels in this role.

The principle of direct effect, combined with the power to make a reference for preliminary ruling to the Court of Justice means that the national judge is often the crucial interface between citizens, to whom enforceable rights have been conferred, and the European Union. National judges, applying Community case-law, can even find their Member State, including in theory their own Supreme Courts, liable in damages for breaches of Community law!

National judges are expected, over and above their knowledge of domestic law, to master a considerable amount of Community case-law and legislation, often subject to successive amendments and sometimes obscure or open to conflicting interpretations.

A further dimension is added by the choice at EU level to opt for a series of conflict-of-law rules rather than harmonisation - this can be seen for example in the case of the law applicable to contractual and non-contractual obligations. National judges need to be able to apply foreign law and to have an understanding of the legal systems in other Member States. Certain recent European instruments, both in the civil and criminal fields, presuppose direct contact between judges in different Member States.

With such a daunting series of tasks in mind for our national judges, some of these already existing since the fifties and early sixties, one would imagine that a considerable amount of attention had been given at European level to their education and training, to facilitating their daily tasks, and to make sure they can exchange experiences with colleagues in other Member States.

In reality, however, national judges have all too often been left by the wayside, and even neglected. There are of course some notable exceptions such as the Academy of European Law, based in Trier, and created in 1992 following an initiative of the European Parliament.

But in general however, we have had to wait far too long to witness the emergence of consistent efforts in the field of judicial training and increased funding at European level to organise training courses and exchanges for judges, or to enhance their language skills. The European Judicial Training Network, for instance, is still embryonic (eg. its exchange programme is only in its third year!), and the idea of a European Judicial Academy, which is something I am keen about in principle, remains to be explored in depth.

Notwithstanding successive EU enlargements and unacceptable delays in the handling of cases by the Court of Justice, the preliminary reference procedure has been left essentially unreformed since the Treaties of Rome - with the exception of a few minor changes and the recent introduction of an "urgent" procedure.

It is this clear dissymmetry referred to earlier which has given reason for the European Parliament to become increasingly active on the question of national judges. My own draft report makes many proposals to better engage national judges, to ensure the necessary structures and funding are there to train them properly, to ensure that they have the proper tools, but also to make sure that Community law itself is better suited to application by national judges. I am glad to say that the forthcoming French Presidency is taking this subject, and indeed the content of my report, very seriously indeed to the extent that judicial training will be one of their priorities in the Justice field!

I find it very appropriate that the two main themes of this year's activities during Europe week in Hessen are Intercultural Dialogue and the place of Estonia, Latvia and Lithuania within the European Union.

Firstly, Intercultural Dialogue, which is a priority for the current President of the European Parliament, Prof. Dr. Hans-Gert Pöttering. Lack of a common language or means of communication often makes intercultural dialogue impossible.

National judges experience this as well. Without sufficient language skills, a judge cannot access the wealth of legal traditions which makes up and helps to explain the complexity of EU legislation and ECJ case-law. The judge will also be more reluctant to apply foreign law. Although judicial exchanges within the EU are becoming increasingly popular, with more than three hundred in 2007, a lack of language skills means that a whole section of judges is de facto excluded from such an opportunity for dialogue, mutual learning, and mutual trust. As you can see, we still have a long way to go on these questions.

Secondly, Enlargement. This has been a huge challenge for all EU institutions. Each acceding country brings with it a new outlook, a new legal system, a new legal language, and we should be actively fostering this. A student, a lawyer or a judge in Vilnius, Talinn or Riga should be given the same learning opportunities as those available to a judge in London or Paris.

We need to prevent the atrophy of knowledge and resources in lesser-spoken Community languages, particularly concerning academic works and more specialised areas such as private international law. In this regard, I am currently in talks with the Commissioners for Multilingualism and Consumer Protection to ensure that the Draft Common Frame of Reference in the field of European Contract Law drawn up by a network of academics is available in all official languages.

We also need to develop on-line tools which are free and properly updated, as a complement to face to face training.

Ladies and Gentlemen, to conclude, the most important point perhaps is that there is a huge amount of interest among national judges themselves. They are eager to play a more prominent role in building a European Union based on the rule of law, reflecting the rich diversity of legal traditions in the Member States. The overwhelming amount of feedback I received from German judges in particular (about a thousand responses) during the preparation of my report highlights this.

It is certainly heartening to see in a Eurobarometer from last month that 74% of Europeans believe that additional measures should be taken to help citizens' access to civil justice in other Member States, and that a majority of Europeans want these measures to be taken at an EU level. But if we want this to happen, it is really time that we listened properly to what our judges have to say!

Thank you for your attention.