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'Europeanisation' of the Law: Consequences

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'Europeanisation' of the Law: Consequences Prof. Dr. S. Prechal Dr. R.H. van Ooik Prof. Dr. J.H. Jans Prof. Dr. K.J.M. Mortelmans ‘Europeanisation’ of the Law: Consequences for the Dutch Judiciary Table of Contents The report 1. Introduction 4 2. The horizontal dimension: general and common aspects of the ‘Europeanisation’ process of the Dutch judiciary 8 2.1 The organisation of the administration of justice in the EU 8 2.1.1 Centralised and decentralised enforcement of Community law 8 2.1.2 The interrelationship between centralised and decentralised enforcement and the shifting workload 9 2.1.3 The Constitutional Treaty and judicial enforcement of EU Law 11 2.2 EU law and national judicial procedures 13 2.2.1 The effects of EU law on national procedural law and the organisation of the courts 13 2.2.2 The duty to ensure effective judicial protection 14 2.2.3 Five practical examples of how the Court’s case law could affect the organisation of the Dutch judiciary 16 2.3 Procedural implications of recent developments in European substantive law 20 2.3.1 Free movement 20 2.3.2 Competition policy 21 2.3.3 State aid 24 2.4 The preliminary reference procedure 25 2.4.1 Length of the procedure 25 2.4.2 Proposals for revamping the preliminary reference procedure 26 2.4.3 Short term solutions 29 2.5 The Constitutional Treaty and the protection of fundamental rights 29 3. The vertical dimension: European developments specific to civil, administrative and criminal law 32 3.1 Civil law 32 3.1.1 Internal market legislation 32 3.1.2 Private international law 33 3.1.3 Enforcement and the future of European private law 34 2 ‘Europeanisation’ of the Law: Consequences for the Dutch Judiciary 3.2 Administrative law 35 3.2.1 Competition law 35 3.2.2 Environmental law 36 3.2.3 Immigration law 37 3.2.4 Telecom law 39 3.2.5 Agriculture and fisheries 40 3.3 Criminal law 40 3.3.1 The traditional role of the criminal judge 40 3.3.2 Obligation to enforce EC law through criminal law 41 3.3.3 Third pillar: police and judicial cooperation in criminal matters 42 3.3.4 Criminal law and the Constitutional Treaty 43 4. Conclusions 46 4.1 Three major trends 46 4.2 How to cope with the major European trends? 47 4.3 Consequences of the centralisation and decentralisation processes for the organisation of the Dutch judiciary 51 Selected literature 52 About the authors 54 Annex I: From Statistics of judicial activity of the Court of Justice 2003: References for a preliminary ruling (by Member State and by court or tribunal), 1959-2003 56 Annex II: From Statistics of judicial activity of the Court of Justice 2004: Demandes de décision préjudicielle introduites, (01-01-2004 au 31-12-2004) 57 Annex III: The Hague Programme: Strengthening Freedom, Security and Justice in the European Union 60 Abbreviations 84 3 0 Introduction This report is written at the request of the Raad sometimes at the national law level, judgments voor de rechtspraak that, since its establishment of the ECJ, which are not so revolutionary from in 2002, has primary responsibility for the the EU law perspective, are nevertheless widely organisation and financing of the Dutch judiciary.1 commented on and presented as astonishing The report therefore primarily focuses on the novelties. A recent example is the Kühne & Heitz consequences of the ‘Europeanisation’ process judgment2. Apparently there is a difference in of in particular, Dutch law for the organisation of perception and importance. the Dutch judiciary. It does not intend in the first place to clarify how Dutch judges should interpret Not only are national legislators of the EU Member and apply the law of the European Union (EU) in States confronted with the increasing influence everyday legal practice. of EU law, which results from the legislative and judicial developments mentioned above, the same Some estimate that around 70 to 80 percent of holds true for national judges. They have to apply the legislation of the EU Member States emanates and enforce provisions of European law, either from ‘Brussels’ these days. Others believe that this directly (for example in the case of Regulations) figure is too high and, moreover, that the impact or indirectly (for example national legal rules of EU law on national law continues to relate which transpose EC Directives). In doing so, they mainly to socio-economic topics. In any event, the have to take into account fully the case law of quantitative and qualitative influence of EU law on the ECJ and, where appropriate, the CFI on the national law and legislation is increasing and is of interpretation of these European legal rules. ever-greater practical importance. From this perspective, it is rather obvious that To this legislative development one has to add the national judiciary should get acquainted with another vital dimension of the Europeanisation the law of the European Union and keep in touch process, namely the judicial one, that is, the with its latest developments, in order to be able interpretation and further development of EU law to apply this complex set of legal rules in its day- by the Luxembourg courts, the European Court to-day work. In the Netherlands, the training of of Justice (ECJ) and the Court of First Instance the judiciary in EU law is the prime responsibility (CFI). Since having laid down the most important of the Dutch training centre for the judiciary, the principles regarding European Community (EC) Studiecentrum Rechtspleging (SSR). law in the early sixties - such as the principles of supremacy and direct effect - the ECJ has As from 2002, this organisation has offered an been developing European law in a step-by-step introductory course in EU law to all members fashion. This process can best be characterised as of the Dutch judiciary, consisting of the judges, a steady evolution, without spectacular breaks and public prosecutors, trainee judges (RAIO’s) turns. At least, this is the perception of those who and court clerks (gerechtssecretarissen). All are long familiar with EC/EU law. Interestingly, new judges are expected to attend at least this 1 With the exception of the Dutch Supreme Court (Hoge Raad) and the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak Raad van State). 2 Discussed infra, in Section 2.2.3. 4 ‘Europeanisation’ of the Law: 1 Consequences for the Dutch Judiciary introductory course on EU law.3 In addition, since with specific interest in European law. Most of the 2004, SSR is developing specialised courses abovementioned ‘appointed’ specialists are also intended to deepen the knowledge of Dutch member of the Eurogroup. judges in specific fields of EU law (such as social security law, European immigration law, European Although the focus of the present report is not criminal law and European environmental law). on the initial or ongoing training of national judges, it should be emphasized that matters of These courses constitute a part of the so-called organisation of the judiciary on the one hand, and Eurinfra project, which was launched in 2000 and the training in and knowledge of EU law on the ended in 2004. The project consisted of three other, cannot very well be separated. For instance, main ‘pillars’: (1) the above-mentioned training questions as to whether certain specializations sessions on European law, organised by SSR; within the national judiciary should be strived for (2) the facilitation of access to EU information or how to reorganise the preliminary reference on the internet with the help of the newly procedure are issues which are intimately linked to developed Porta Iuris system, managed by Bistro the question of (the level of) knowledge of EU law (Bureau internetsystemen en -toepassingen on the part of domestic courts. Moreover, as the rechterlijke organisatie), which falls under the present report will illustrate in several instances, responsibility of the Raad voor de rechtspraak; the increasing complexity of the relationship and (3) the appointment of specialists in EU between EU law and national law may be tackled law (gerechtscoördinator Europees recht) at either by organisational measures or by improving all courts in the Netherlands, who function as the knowledge and understanding of the law and contact persons for EU law matters in their court. preferably by both. The ‘gerechtscoördinatoren’ meet regularly in the context of a network (the GCE-netwerk).4 As was already pointed out above, this report is The meetings and activities of this network primarily written for the Dutch Council for the overlap to a certain extent with the meetings Judiciary. However, the authors hope that it may and work of another, much older network, also serve as a document for further reflection namely the Eurogroup (Eurogroep). This group for similar bodies in other Member States and was established in 1995 in the context of the aspirant Member States, which overarch the Nederlandse Vereniging voor Rechtspraak (Dutch national judiciary in one way or the other. At the Association for Judges and Public Prosecutors) initiative of, amongst others, the President of the with as main purpose to concentrate and study Dutch Council for the Judiciary sixteen of these European law issues, in particular these which bodies now meet informally within the framework occur in everyday court practice. Members of the of the European Network of the Councils for the latter group are judges and public prosecutors Judiciary (ENCJ)5. 3 This course is divided into a part on the institutional law of the EU (structure Treaties, direct effect, judicial protection, etc.) and a second part devoted to substantive EU law (internal market, four freedoms, competition policy, etc.).
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