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17 September 2014
Churning out reams of case law to be followed by 15 countries, judges of the European Court of Justice (ECJ) have a never-ending and often thankless task. David Alexander Ogilvy Edward has been a judge at the ECJ since 1992 and at the Court of First Instance for three years prior to that.
Despite his years living abroad, he confesses that he does miss his native Scotland, but he describes his job as "hard work and stimulating", and when pushed, "sometimes fun".
Commenting on when he was first called to practise at the bar in Scotland, he says: "If somebody had said, 'You're going to be in a court with a Finn and a Portuguese', I wouldn't have believed it."
Of the ECJ, he says: "The strength of the system is that it works. The principal shortcoming is delay, but that's mainly due to the language problem - apart from the time taken for the translation of documents, it takes longer to decide cases when people are working in a language other than their own. And with 11 languages and 15 member states and many different aspects of law, it's bound to take some time. But people exaggerate the delay. The British courts aren't always electric in deciding cases, and if a case is difficult, do you really want it to be decided quickly or do you want the decision, as far as possible, to be right, especially when there's no appeal?"
After many years of experience as a judge in the European Community (EC) system, Judge Edward says of the differences with the UK system: "Essentially, the judge in the UK works on the basis that the parties, through counsel or solicitors, will provide him or her with all the material, facts and legal authorities that will be necessary to decide the case. In that sense, the judge is passive. The Continental attitude is different. The parties refer a dispute to a judge, who is assumed to know the law. It's for the judge to decide what factual enquiries or legal research are necessary to reach a decision. In that sense the judge is a case manager in a way that the British judge is not - or at any rate, has not been until recently."
However, with the Woolf reforms on case management and use of skeleton arguments by British advocates, Judge Edward thinks that both systems have moved slightly towards one another. "In this court, the rapporteur is the case manager. The parties (or the referring court) define what the case is about, but the rapporteur is primarily responsible for identifying the relevant facts and law," says Judge Edward.
Cases are allocated by the president to one judge as the rapporteur, or reporting judge. Procedure is largely written, says Judge Edward. Oral procedure has a minor place in ECJ proceedings. Surprisingly, Edward discloses that every ECJ judge receives all the papers in every case commenced in the court, and all the ECJ judges decide at their weekly meetings how cases should be heard (full plenary, chambers etc). The reporting judge then drives the case progression, circulating summaries and preparing drafts of judgments to the relevant judges.
The internal working language of the ECJ is French. Edward says that it can take weeks or months to agree on the outcome of a case and the final draft of the judgment. He likens the court to a "high-powered committee, the rapporteur being the person responsible for preparing the report of the committee".
He adds that "the basic principle is that the rapporteur is never the judge from the country from which the case comes". Judges are dealing with legal systems from all 15 member states, which means that they "get to know and understand the systems in each country". ECJ judges are expected to be comfortable with most strains of law, and in many an expert. Not only do they deal with cases governed by different legal systems, but they do not have specialised divisions. Edward says the reason for this is because the court is "giving an answer which must be capable of being applied to any similar case in any member state and in any language".
He argues: "It's better that a court doing our kind of work doesn't specialise in particular areas of the law. We're trying to give an answer for every member state and need to have an overview. It may appear to the referring judge that the case raises a trademark question, but it may have overtones of free movement of goods or other aspects of EC law which go far beyond the province of trademark law."
There is a research division that can research cases for judges, and they can also ask the parties to a case questions either orally or in writing. On a reference for a preliminary ruling, Judge Edward says that judges "hope referring courts will explain issues".
Nearly all the judges have a computer on their desk, and to assist them with their mountains of paperwork each judge has three secretaries and three lawyers working for them. "Two of my secretaries are French," says Judge Edward. "They go over what's drafted by the lawyers and check it's good French and understandable."
While the judges work together closely and have "a very good working relationship", they do not have much to do with the European Commission, nor are national political tensions present in the ECJ. Judge Edward says: "The physical separation [from the commission] in my view is an advantage of the system, as we're not in the political swim of things. Admittedly, it means that you have to get a buzz of what's going on from the Financial Times and not from the corridors of power, the pubs or restaurants. But you're not lobbied and the court is insulated from political pressures."
Judge Edward believes that the separation of the European institutions contributes to the checks and balances of the system. He says: "Because we're in Luxembourg, we're reasonably isolated from political pressure. We're not living in the big smoke of political in-fighting, so to speak. We can be away from the battle."
He does not seem troubled by reports that the ECJ is struggling to address its fast-growing caseload. Judge Edward's predictions for the future of the ECJ are optimistic. "Longer term, I think there'll be a tendency to create more lower-level courts and tribunals, leaving the ECJ to act as an appeal court. For the time being, or with the addition of only five or six new member states, things will continue very much as they are now. If there's a mega accession of 10-plus member states, the court will need to change substantially," he says. "It would completely change the character of the court, and it's difficult to predict how it would work."
Although EC law is quickly amassing, Edward confirms that "EC law is very much a case law system". Despite Continental influences, Judge Edward does not see codification of the EC's body of case law as imminent. He says: "Codification could be much later. For now it's case law. There are mini codifications in the sense that, when a regulation or directive is revised, the new law will take account of the way in which legislation has been interpreted by the court. For example, Regulation 1408/71 on social security has been revised to take account of case law." n