European Judges Research Articles

Perspectives on Europeanization of National Judiciaries: Old and New Questions

The aim of this article is to bring together different legal, political science and sociological perspectives addressing the problem of Europeanization of national judiciaries. In that sense, this article provides an overview of several old aspects regarding the way and extent national courts/judges adapted to their role of European judges. Next to that, it is looked into the manner of and reasons behind judges’ involvement in the process of EU legal integration, whereby a new research agenda is offered. For that purpose, new questions are raised and different empirical aspects are discussed concerning, for instance, courts compliance with EU law, the relevance of national judges’ individual profiles (knowledge, attitudes and values) but also the role of institutions (networks) and legal systems in the process of Europeanization of judges.

Global Judicial Governance of Cultural Diversity: The Role of the European Judge

How to manage a growing cultural and religious diversity with its origin in human mobility across the globe is a pressing theme in Europe. A process of shrinking tolerance of diversity in favour of the imposition of prohibitions of certain acts grounded in culture is now observed. Both female genital mutilation involving unjustified violence against children and women and other cultural practices believed to be oppressive, such as the full-face Islamic veil in public places, have been criminalized. This development prompts the question about the role of European judges in the enforcement and review of these bans. More generally, it brings into focus the prospects of judicial governance in times of diversity, whether it is to provide justice in individual cases, protect fundamental rights, or promote transparency in law-making processes. In this light, the aim of this paper is to examine the nature and degree of European judicial engagement with cases involving law-breaking depending on cultural differences. Of main interest are the challenges currently facing European judges in the process of judging and sanctioning the new crimes as well as in the performance of judicial review. (Less)

Nòμος ó πάντων βασιλɛúς – La loi règne sur tout . À propos de l’arrêt de la Cour européenne des droits de l’homme, Grande Chambre, 5 juin 2015, Lambert et autres c/France

Following the Administrative Court of Châlons-en-Champagne and the Council of State, the Grand Chamber of the European Court of Human Rights pronounced, on June 5th, 2015, on the case of Vincent Lambert, tetraplegic and in neurovegetative state as the result of a traffic accident occurred in 2008. The Court notices no violation of article 2 of the Convention and so confirms the position taken by the French courts which approved, in application of the French law, the withdrawal of the artificial nutrition and hydration of the patient. In spite of a certain verbosity, the Court decision remains very careful and, to end in the absence of violation of the Convention, the European judges operate a limited control by taking refuge widely behind the margin of appreciation of States in the sphere concerning the end of life. In a context where the applicants do not seem to be satisfied with the decision of the European court and where the French legislator proceeds to a revision of the legal frame of the end of life, the judgment of June 5th, 2015, if not stops the debate, reopens it.

Whole of Life Tariffs in the Shadow of Europe: Penological Foundations and Political Popularity

AbstractThis article explores the escalating conflict between European judges and domestic politicians over the issue of whole of life tariffs. After the decision of the European Court of Human Rights (ECtHR) in Vinter and Others v. the United Kingdom and the subsequent decision of the Court of Appeal in R v. McLoughlin, there has been a very public tension between the two sides over reviewing prisoner sentences. When bids for release have previously been made by whole life prisoners, most infamously Myra Hindley, the political mood has been defiant. Now Europe has decreed that such prisoners are entitled to an enhanced review of their sentence beyond the possibility of executive release owing to terminal illness, the political stance has further hardened. Instead of enhanced sentence review, the response to Europe has been the announcement of widening the applicability of the tariff to those who kill police or prison officers.

Mixed Blessing of Judicial Specialisation: the Devil is in the Detail

This article discusses from a critical perspective the issue of judicial specialisation. While accepting the assessment that judicial specialisation is a growing trend in a number of contemporary states, the author sets forth different perspectives and viewpoints on judicial specialisation which clearly show that the excessive enthusiasm should be subdued and that any attempt to specialise judges, court structures and procedures should be carefully balanced against the possible negative impact specialisation could have, both at the general level, and at the level of concrete gains related to administration of justice. The starting point of the analysis is the presentation of multiple forms that judicial specialisation can have. Aspects that are distinguished are judicial specialisation in narrow sense (jurisdictional specialisation) and broader sense (internal, personal and procedural specialisation). Based on the data of the European Commission for the Efficiency of Justice (CEPEJ), it is concluded that there is no coherent or consistent approach to judicial and jurisdictional specialisation in Europe, both in respect to the level of specialisation, and in respect to the forms of specialisation. A discussion of the Opinion no. 15 of the Consultative Council of European Judges (CCJE) shows that the viewpoint of judges and their professional organisations is also sceptical on certain aspects of specialisation, and that specialisation is considered to be potentially harmful for the unity of judicial profession and its main professional and ethical foundations. From the perspective of judicial administration, as demonstrated on the examples of international expert assistance to judiciaries of the Netherlands and Croatia, judicial specialisation is attractive, but often for wrong reasons. There is so far little comparative research on judicial specialisation, and the methodology of assessing its concrete benefits and detriments is not developed. Most importantly, the excessive specialisation may have negative impact on the fundamental values of contemporary judicial systems. Therefore, judicial specialisation should be approached with extreme caution, always assessing its implementation from various angles and in the light of all possible side effects that it may have to good administration of justice and core judicial goals and values.

Morten Bergsmo and Ling Yan (eds). State Sovereignty and International Criminal Law

State Sovereignty and International Criminal Law, edited by Morten Bergsmo and Ling Yan, brings together two recent issues of international law: the rise of international criminal law as a building block in the nascent constitution of the international legal order and the increasingly active participation of China in international law. Even though China is a permanent member of the United Nations Security Council (UNSC), it has until recently been de facto absent from the debates over norms of international law. Likewise, international criminal justice is a field of law that stagnated for more than 40 years. The last two decades have witnessed a revival of both phoenixes. This anthology, prepared in the context of the Li Haopei Lecture Series of the Forum for International Criminal Law, offers the view of Chinese and European international lawyers, scholars and judges on three issues: immunity of state officials from foreign prosecution for international crimes; universal jurisdiction and the newly adopted amendment to the Rome Statute of the International Criminal Court (Rome Statute) on the crime of aggression. These three issues are highly topical. In the third and perhaps pivotal chapter, Zhou Lulu, director of the Treaty Division of the Department of Treaty and Law, Ministry Foreign Affairs of China, gives a brief analysis of a few controversial issues in contemporary international criminal law. All of the controversial issues addressed in this article, including aggression, universal jurisdiction and immunity, are discussed by the other contributors to the book - some agreeing and some disagreeing with Zhou. Zhou initiates the debate by making assertive and controversial points on controversial issues. She begins provocatively with the crime of aggression, as defined in the amendment to the Rome Statute adopted at the 2010 Review Conference of the Rome Statute in Kampala, Uganda. The preconditions for the

How Does the European Court of Justice Reason? A Review Essay on the Legal Reasoning of the European Court of Justice

This review essay analyses two significant recent contributions to the debate over the reasoning of the Court of Justice (CJ). These contributions highlight the impossibility of a wholly scientific and deductive approach to attributing ‘correct’ outcomes to the Court's case-law. At the same time, their analysis adds significant findings for the debate over the Court's possible ‘activist’ or political role. Following from these contributions, this essay makes two arguments: firstly, that the inability of the Court to anchor its reasoning solely in a deductive form of legal reasoning should encourage the CJ to engage in a more advanced ‘constitutional dialogue’ with the EU's political institutions; and secondly, that truly understanding the Court's reasoning involves a closer analysis of the institutional and personal dynamics influencing Court decisions. Understanding European judicial reasoning may require a closer look at the social and political—as well as doctrinal—context within which European judges act.

Conflicts of jurisdiction and judicial cooperation instruments: Eurojust’s role

In European Union law, there is no set of common rules regarding jurisdiction in criminal matters. This absence could give rise to differences between European judges in cross-borders cases, especially in an enlarged area of common criminal law. The establishment of rules on criminal jurisdiction must take into account both the need for efficiency in prosecution and the need for respect for defendants’ rights. Eurojust, which is already playing a role in the prevention of conflict between these two considerations, should be aligned with the provisions of Article 85 TFEU. The adoption of the new Directive on crimes against EU’s financial interests and the proposal for the institution of the European Public Prosecutor’s Office could provide the appropriate occasion for a new approach.

Use of customer securities by UK prime brokers: the road ahead

The collapse of Lehman Brothers in Europe and the ongoing financial crisis have brought the practices of the financial markets into the sharp focus of English and European judges, regulators and legislators alike. One area of focus has been, and continues to be, the accepted practice of a financial services firm accessing and using customer assets it holds in custody – a practice known colloquially as “rehypothecation” — and whether there is an appropriate balance struck between the risks involved and the micro and macro benefits such a practice can bring. Most recently this subject has formed part of an EU discussion paper circulated to Member States in the context of proposals for securities law legislation.

What Italian Defense Attorneys Know about Factors Affecting Eyewitness Accuracy: A Comparison with U.S. and Norwegian Samples

We surveyed 100 Italian defense attorneys about their knowledge and beliefs about factors affecting eyewitness accuracy. The results of similar surveys show that U.S. defense attorneys were significantly more knowledgeable than other legal professionals, including U.S. prosecutors and U.S. and European judges. The present survey of Italian defense attorneys produced similar results. However, the results suggest that the defense attorney’s superior performance may be due at least in part to their skepticism of eyewitness testimony rather than their greater knowledge of eyewitness factors.

EU Courts, Global Risks, and the Health and Environmental Safety Revisited: On Nuances of a Less Deferential Standard of Review

This paper examines judicial reasoning in risk regulation cases from the perspective of the standard of review. It takes a doctrinal-positivist approach and uses the decisions of the Court of Justice of the European Union, where it is asked to decide on powers of national (and EU) authorities to adopt measures restricting the functioning of the internal market on the grounds of human health and the safety of the environment, as a case-study. In these cases EU Courts have to face and decide on difficult questions of risk, scientific risk assessment, and uncertainty. The paper argues that in these factually, scientifically, and politically complex cases the traditionally limited scope of judicial review has moved towards a more broader evaluation by European judges of scientific and risk issues. Thus, the formally deferential standard of review in reality appears to have become a much more restrictive one, through paradoxically, the extensive review of procedural guarantees and of the plausibility of (scientific) evidence. It has the implications of the CJEU engaging in structuring decision-making processes on risk, but at the same time possibly lacking a clear vision on how to deal with the knowledge paradoxes and scientific uncertainty. This in turn provokes a broader question what should be the place for EU courts in transnational risk regulation.

Notes Sur L’Indépendance des Juges à L’Épreuve des Technologies de L’Information et de la Communication

Does the use of information and communication technologies (ICT) put judicial independence at risk ? While this question might have sounded excessive a few years ago, today it appears to be serious enough to have brought about new deontological obligations, an opinion held by the Consultative Council of European Judges and a number of projects working towards a code of good practice. As a matter of fact, ICT provide formidable assistance to judicial work, but they could also influence judgments and ‘dry up’ the reflections of judges for the sake of enhanced productivity.

Technology in Courts in Europe: Opinions, Practices and Innovations

In 2011, the Consultative Council of European Judges produced an Opinion on justice and information technologies. It was my privilege to act as the supporting expert. This article is a reflection on the process of Opinion 14 and on its final product. It includes an evidence-based analysis of the state of IT in courts in Europe. It provides some insights into the opportunities and risks relating to IT in courts. This article also looks forward, in preparation for the International Conference on Court Administration in The Hague in June 2012. It closes with a critical evaluation of the way IT is changing courts and judiciaries.

How far can the European Court of Human Rights go in the fight against discrimination? Defining new standards in its nondiscrimination jurisprudence

European judges in Strasbourg have recently been called on to decide on some important issues concerning discriminatory treatment in the enjoyment of the rights and freedoms protected by the European Convention on Human Rights (ECHR) and its protocols. Moving from different grounds of discrimination, it is possible to find a common leitmotif in the judgments delivered by the European Court of Human Rights (ECtHR): the main idea is that the attempts to limit discrimination in the member states of the Council of Europe (CoE) are even more pronounced nowadays. Roma, women, religious minorities, and homosexual couples have thus found a reinforced protection in Strasbourg which is not restrained either by contrary decisions delivered by national constitutional courts or embedded in the legal tradition of the states involved. As far as the contracting states are concerned, the main consequence is the narrower margin of appreciation recognized by the Court even in particularly sensitive matters of national public opinion. New standards have thus been reached and very weighty reasons are increasingly required to ascertain the compatibility between the Convention and different treatment based exclusively on the grounds of ethnic origin, gender, religion, or sexual orientation and reserved to vulnerable groups.

A Toolbox for European Judges

The forthcoming instrument on European contract law, be it in the shape of an optional code for cross-border contracts or as an official toolbox for the European legislator, is likely to have a spill-over effect on private law adjudication in Europe. Judges will have no great difficulty in finding model rules and definitions that might come in handy when dealing with gaps and ambiguities in European private law. However, the question is whether such a role as a toolbox for judges would be legitimate. I discuss three types of possible legitimation strategies: traditional methods of legal interpretation, the new European methods and merely political legitimation. It will often depend on the circumstances of the case at hand and the characteristics of the particular model rule or definition that is being borrowed what mode of legitimation will prove to be more convincing. However, generally speaking legitimation in terms of the ‘general principles of civil law’ that the CJEU has recently been developing seems a particularly promising strategy. On the other hand, it seems unlikely that European courts could come under a duty, following from the principle of sincere cooperation, to use the instrument as a toolbox.

Harmonic Law: The Case Against Pluralism

The paper mounts a critique of ideas of pluralism and judicial dialogue in the European Union. It aims to challenge the orthodox view that legal pluralism in the European Union is an empirical fact, which generates problems of normative conflicts that in turn can be solved through some process of judicial dialogue. The paper argues that this view is premised on a controversial theoretical position about the nature of law, which distorts the normative character of the relationship between different courts in Europe. It then advances an alternative account of law and fundamental rights that both explains why legal conflicts do not exist and offers normative guidance to how European judges and other officials should act.

What do the European Judges Strive for - An Empirical Assessment

The International Journal for Court Administration (IJCA) is an electronic journal which focuses on court, judicial, and justice system administration, management, and governance. It provides a platform for the professional exchange of knowledge, experience and research in those areas for a diverse audience of practitioners and academics.Its scope is international. The editors welcome submissions from court officials, judges, justice ministry officials, academic researchers and consultants whose work and interests lie in the practical aspects of the effective administration of justice.

The locus standi of private applicants before the Court of Justice of the European Union after Lisbon treaty

The action for annulment is effective remedy for private applicants in protection of their rights. Treaty of the European Community in Article 230 (4) imposed limits on the standing of individuals as it required the applicant to be directly and individually concerned by the contested measure. This requirement, especially in case of individual concern, was very difficult to meet. The Court of Justice had developed over time very restrictive interpretation of the rules for standing of individuals. There were a lot of attempts to change the Court's interpretation of the locus standi of non-privileged applicants, like the ones in cases UPA and Jégo-Quéré, but with no success. It has also been discussed why the Court does not want to change its interpretation. Among many arguments one is especially often invoked and serves to justify Court's unwillingness to relax the conditions for standing. This is the reluctance to add to the Court's already heavy workload. Finally, the reform has come. The Lisbon Treaty makes some modifications under Article 263 (4) TFEU. Private parties are allowed to contest a regulatory act which is of direct concern to them and does not entail implementing measures. It is clear that the new locus standi relies heavily on the distinction between legislative and regulatory acts. Private applicants have been expecting more from the Lisbon Treaty. They still hope that the Court of Justice of the European Union is going to make new changes in the future. After all, the European judges are those who are familiar with law and with the needs of the legal system. Therefore, they are competent to seek the ways which comply with the requirements for an efficient and fair system of judicial protection.

Constitutional Identity as a Shield and as a Sword: The European Legal Order within the Framework of National Constitutional Settlement

Abstract The pitfalls of the relationship between European and national judges constitute a well-travelled ground in literature, especially with regard to ‘sagas’ over the reconciliation of national sovereignty with EU law primacy. Hence, the contribution that this article is attempting to make is to explore the judicial understanding and potential of the concept of constitutional identity in the light of the newly-introduced Article 4(2) TEU by the Treaty of Lisbon, which makes it explicit that national identity encompasses constitutional specificity. A number of questions are raised and discussed. For instance: How has the Court of Justice of the European Union (CJEU) been adjudicating on issues pertaining to the constitutional identity of the Member States pre- and post-Lisbon? How far can Member States stretch the concept to avoid the tidal effect of EU law upon their legal systems? For the sake of clarity, two notions of constitutional identity are identified and presented in this article: One related to the CJEU’s case law, where ‘constitutional identity’ has been invoked by defending Member States as a qualified derogation from their EU law obligations (a ‘shield’) and another, inherent in the German Constitutional Court’s (BVerfG) use of ‘constitutional identity’ as a break to an unprecedented transfer of competences to the EU and a tool of judicial review of national implementation measures of secondary legislation (a sword). The arguments advanced hereafter suggest that the implications of identity retention as a ‘shield’ may not be far-reaching since the CJEU has, through a pragmatic use of the loyalty and proportionality principles, succeeded in reducing its effect to the bare minimum. On the other hand, as a judicial review mechanism, the German paradigm demonstrates that, as a ‘sword’, constitutional identity retention comprises, largely, a theoretical possibility. These assumptions aside, it is concluded that constitutional identity retention may provide both national judiciaries and legislatures with new opportunities to participate in trans-national constitutional development through monitoring and assessing the compatibility of the exercise of EU competence with the requirements of national constitutions.

What Did You Just Call Me? European and American Ratings of the Valence of Ethnophaulisms

Previous work has examined the relative valence (positivity or negativity) of ethnophaulisms (ethnic slurs) targeting European immigrants to the United States. However, this relied on contemporary judgments made by American researchers. The present study examined valence judgments made by citizens from the countries examined in previous work. Citizens of 17 European nations who were fluent in English rated ethnophaulisms targeting their own group as well as ethnophaulisms targeting immigrants from England. American students rated ethnophaulisms for all 17 European nations, providing a comparison from members of the host society. Ratings made by the European judges were (a) consistent with those made by the American students and (b) internally consistent for raters’ own country and for the common target group of the English. Following discussion of relevant methodological issues, the authors examine the theoretical significance of their results.