Adjudicating Europe

It is unanimously held that Chief Justice Roberts will play a decisive role in the evolution of US Law and of his country in the following years. The assertion is founded on what his predecessors had accomplished during their time as leaders of the United States Supreme Court. Their mandates will be forever embedded in the history of the US, particularly by the influence of certain judgments rendered during their mandate: Warren and Brown vs. Board of Education; Burger and Roe vs. Wade; Rehnquist and Bush vs. Gore. There are currently no secrets behind the decisive roles these justices played in making these landmark decisions come true (though maybe not always in the way they wished), and their names will forever be linked to what these judgments embody.

No wonder the nomination of a Chief Justice is a momentous event in the United States, for lawyers, politicians, civil society and even the outside world.

Next week, Europe will have a new Chief Justice. However, it appears as if nobody has realized, or simply doesn’t seem to care.

But why is this so? How can we be indifferent to such an event? Europeans hold a very high concept of their highest Court, but when it comes to decide its future (and their future too) nobody seems to give a damn.

The ECJ is of course a rather sinister institution. Despite its efforts to be more transparent and open to visitors and plaintiffs (UPA notwithstanding), it is true that the ECJ is a distant actor in a faraway place for many. The media has always been uncomfortable with the Court’s cryptic and technocratic way of speaking, and the message has always been hard to explain. Europeans know there is a very competent Court there, made up of wise judges working and living in Luxembourg, but they seem to either let them do (presuming they will do it right), or to just ignore them with the hope that they will ignore us too.

Whatever the reason may be, the truth is that next week the ECJ will have a new President, and he or she will condition the way European Law will develop, and together with it also the European Union, its member States and, of course, its citizens.

Vassilios Skouris, the current President of the Court, might carry on at the post. He has been recently reappointed by his country of origin, Greece, and presidents do not usually carry on as ordinary judges after being heads of the Court. It therefore seems obvious that Skouris will be running again. We completely ignore if there is another member running against the current President.  And since we lack an alternative, I can only give an opinion on the sole (as I have deduced) candidate I have knowledge of: Skouris.

But tracking an ECJ judge or president’s record is a difficult business. The President never sits as a reporting judge, and he only participates in the Grande Chambre. Probably the only way to give an opinion is looking at the Court’s overall situation in terms of its case-law, institutional relations and internal functioning (efficiency and house-keeping measures). Those are, after all, the President’s domains. And those are, therefore, where an eye must be put to “judge” judge and President Skouris.

Skouris has been the enlargement President. That is his most visible merit. The Court has multiplied its size by two and its case-law seems, at first sight at least, not to have suffered too dramatically. The enlargement has brought new and complex problems that the Court has had to struggle with (see Viking and Laval, among others), and president Skouris has made it look as if it was all “business as usual”. For that we should all be grateful.

Skouris has also fathered the new urgent preliminary reference procedure. Despite its drawbacks, nobody can deny that the commonly called “PPU” gives national judges important incentives to make references in areas desperately needed of haste. Skouris was quick to realize that the success of the Third Pillar was very much in the hands of national courts, and that they would never make references if the Court was going to take twenty months in solving the query.

The Court’s statistics have improved: Rodriguez’s presidency finished with an almost record-long average period of two years to solve a preliminary reference. Skouris has speeded things up, although the CFI is an absolute disaster and, although he is not directly responsible for that, he obviously could take (political) measures, together with or forcing President Jaeger, to remedy the inferior court’s dramatic record.

The Court’s web page has improved (although not significantly, and many still miss a decent search engine for pre-1997 case-law), the new ceausescu-ian building has been recently inaugurated and the visits to the Court (and therefore its public relations with the outside world) have rocketed.

Good for Skouris, then!

But what about substance? How is the Court’s authority doing lately? The ECJ’s President must not only take measures to make the institution work, but also to make it be respected, being as it is a fragile institution in terms of legitimacy and coercion.

In this terrain, allow me to be more skeptical.

Despite Skouris’ successes in the domain of “efficiency and house-keeping”, the Court’s authority seems to be quickly fading. And that’s no good news at all.

In fact, these are very, very, very, very bad news for everyone.

Has anybody understood the judgments in Viking and Laval? Where on earth was the Court heading to there? The fact that the judgments are being held as examples of a troglodyte-ish liberal Europe by some, and a step forward towards Leninism by others, seems, to say the least, worrying.

And what about the Mangold mess? The fact that the German Constitutional Court is now debating whether to declare the ECJ’s case-law ultra vires is another symptom of the ECJ’s fading authority. Something went terribly wrong there, and its President should be held responsible for it, of course.

Coherence is another issue: five judge chamber case-law has been more and more contradictory. Whilst the First and Fourth Chamber have a striking record of “chicken on the run” judgments, the Second and Third Chamber have been much more willing to solve complex issues in a (very welcome) straight-forward approach. This two-speed Chamber case-law is not good, and sends a wrong message to parties litigating, or expecting to litigate, before the Court. The fact that the attribution of cases (which will, in many cases, condition to what Chamber a case will go to) is a purely discretionary decision of the President, should give rise to some coordinating or supervising measures from his chambers.

And the inability to solve problems in the Grande Chambre is worrying too: remember the Polish case of transitory standing rights (Commission/Poland, C-273/04), with a powerful Opinion from the Advocate General but with an answer from the Court that simply stated that this was an unimportant issue, and therefore let’s jump into another point, please. Or Kozlowski (C-66/08), where the crucial issue of article 12 TEC in Third Pillar cases was simply erased from the case. The Court can not afford to avoid answers, furthermore sitting in its Grande Chambre.

But Skouris should not be blamed for all the ills and wrongs of the current weaknesses in the Court’s case-law. That would be unfair.

The rotating Grande Chambre is something that Skouris can do nothing about (although he could, of course, propose a change in the Treaties or the Statute), and this is a measure that has indeed hurt the Court. Changes must be made here, and fast.

With a wild Grande Chambre, the role of five-judge Chambers becomes crucial. Shortly after the President’s election, the presidencies of these Chambers will change. It is important that the most respected, competent and authoritative judges at the Court hold these key positions at the time. Let’s hope this happens, or otherwise the case-law will free-fall into god knows where.

And Advocates General can help too. The difference of approach among them is a sign of the rich and plural legal traditions of Europe, but certain peculiarities are simply the result of incompetence. Opinions cannot be too long, and they must deal with problems in a way that a reader (and in this case, the judges at the Court) finds a convincing answer. The never-ending extension of Mengozzi and Trstenjak Opinions is not helping. If they hardly are of help for us academics, I understand that they will even be more useless for the judges at the Court. Colomer’s literary taste is clever and enjoyable at times, but on certain occasions it can simply be an excuse to hide a weak reasoning or a mediocre text (see the recent import duties case concerning military materials, C-284/05 et al; what on earth was all that about?).

Of course, a Treaty reform would fix many things, and the next President could solve the Court’s current problems by inviting Member States to take the ECJ seriously. But who is willing to start another institutional reform after the agony of the Lisbon Treaty?

It appears to me that the next President of the Court must strive to overcome the difficulties based on the sole grounds of his authority and character. Now it is up to twenty-seven judges to decide whether Skouris (or maybe someone else, we don’t know) is up to challenge.

But… does anybody care?

- Pescatorius