Comments on: Guest Editorial: Dickinson on Trust and Confidence in the European Community Supreme Court?

By: Andrew Dickinson

Andrew Dickinson — Thu, 31 Jan 2008 10:24:34 +0000

It seems that the Council has not, after all, failed to heed the Court’s urgings to adopt more efficient procedures for cases in the area of freedom, security and justice. Amendments to the Rules of Procedure for the Court of Justice, introducing an urgent procedure for preliminary rulings in the areas covered by TEU, Title VI and EC, Part 3, Title IV which may be requested by the referring court were published in the Official Journal on 29 January 2008 and will enter into force on 1 March 2008 [see OJ L24/39]. See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:024:0039:0041:EN:PDF

By: Michelle Smith de Br

Michelle Smith de Br — Mon, 14 Jan 2008 10:24:20 +0000

Quite apart from any comments on the workings and/or efficiency or otherwise of the ECJ, readers might be interested in the following:
Irish Judges (unlike some other EU Member States where one can be streamlined immediately for the bench) must have a minimum of 12 years experience as a practising solicitor or barrister before being eligible to apply for a position as a Judge. Most are practitioners for in or around twenty years before taking the bench.
Our current Judge in the ECJ is Aindrias Ó Caoimh. Judge Ó Caoimh’s father was Attorney General of Ireland from January 30, 1954 to June 2, 1954, and again from March 20, 1957 to March 15, 1965. He was also a judge of the ECJ Between 1975–1985. Quite unusual to have both father and son becoming Judges of the ECJ.
Before Judge Ó Caoimh (Junior) became a judge of the ECJ, he practised as a Junior Counsel in Ireland and then a Senior Counsel before becoming a High COurt Judge. He also had experience in arguing cases before the ECJ as a Barrister, before taking the bench. See, for example the controversial case of SPUC v Grogan Case C-159/90). So, at least one Judge has practical experience!
Michelle Smith de Bruin, Barrister-at-Law, Ireland.

By: Gilles Cuniberti

Gilles Cuniberti — Sat, 12 Jan 2008 05:51:45 +0000

Very interesting post.
Jugdes on the court do not have practical experience, but judges in the civil law tradition do not have any either, as they join the bench straight after university. The court is slow, but so are most civil law courts on the continent, some more notoriously than others. Finally, the worst judgements of the court (Owusu, Turner) dealt with common law institutions and their compatibility with European law.
Thus, I am wondering whether the issue is really whether the court ought to be trusted, or rather whether it ought to be trusted by common lawyers. The court acts as a civil law court, which might be disappointing, but is hardly suprising in the European context. One would welcome more openness to the common law approach to conflict issues, but for the time being, there is little reason to be confident that it will happen in the near future.
The next question is, of course, which conclusion should be drawn from this in the European common law world…

By: Andrew Dickinson

Andrew Dickinson — Thu, 10 Jan 2008 20:17:55 +0000

On the contrary, the point made here is that the ECJ in Freeport should have been more open in rejecting, or at the very least acknowledging the ambiguity of, its earlier statement in Reunion (see my comment on the earlier post by Jacco Bomhoff).

As to the question in the second sentence, this also seems to me to be wide of the mark. For better or worse, the European Community and its Court of Justice are now irrefutable facts of life. The question put in the editorial is whether changes are needed to its structure, constitution and procedures in order to ensure that it maintains the confidence of the Member States and those who live and work in them. We are unlikely to agree that a single national model is appropriate (English Commercial Court anyone?), but it does not of course follow that the ECJ cannot be changed for the better. Indeed, the ECJ itself seems to recognise that improvements are needed at the very least to its procedures.

By: Oliver L. Knoefel

Oliver L. Knoefel — Thu, 10 Jan 2008 19:01:16 +0000

I doubt that there is any point in searching ECJ judges’ curricula vitae for hints of thorough PIL practice. Is there any Member State whose regular judges are likely to do much better? As far as Freeport v. Arnoldsson and its relationship to Réunion européenne is concerned, the editor’s criticism seems to boil down to promoting stare decisis. For many reasons, mainly to maintain the flexibility of interpretation, there is no jurisprudence constante with the ECJ (see in great detail Klöckner, Grenzüberschreitende Bindung an Präjudizien, Tübingen 2006, p. 30 et sequ.). Dicta may be followed if sufficiently persuasive but are not binding.