hiil national judges and european union law | dr. tobias nowak

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faculty of law department of legal theorydepartment of private law

29 September 2011 | Raad voor de Rechtspraak

PresentationNational Judges and European Union Law

Dr Tobias Nowak

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National Judges as European Union JudgesKnowledge, Experiences and Attitudes of Lower Court Judges in Germany and the Netherlands

HiiL research project Dr. Tobias Nowak, University of GroningenProf. Fabian Amtenbrink, Erasmus University RotterdamProf. Marc Hertogh, University of GroningenProf. Mark Wissink, University of Groningen

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Research› Private law judges of first and second instance

courts in the Netherlands and North Rhine-Westphalia

› Expert meetings› Questionaire› Face-to-face interviews

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Expectations› Supremacy of European Law› Direct effect› Harmonious interpretation› Equivalence and effectiveness› Ex officio application› Languages

How do national judges deal with theseexpectations?

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How do you evaluate your knowledge of European law?n=309 (Dutch=137, German=172)

12,0%

36,6%37,5%

13,9%

very good/goodreasonablemoderatebad

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In general, I am well informed about developments in national law/European law.n=335 (Dutch n=145, German n=190)

0

10203040506070

8090100

well informed not well informed neutral

National lawEuropean law

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German judge 1 comparing his knowledge of EU law to his knowledge of national law

“Of course I do not know all the rules [of national law] but would have no problems finding information about a problem. This would be more trouble in European law. The distance is much bigger.”

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Dutch judge 2 on the question if he is well informed about EU law“Yes and no. I have access to the sources. I try to take notice. But European law has such a gigantic magnitude – as a Dutch judge you already have the feeling that you only really know a small part of Dutch law; this is even more so with European law. This is one side and the other side, by looking at the headings – what kind of document is this, what kind of decision? – and the realisation ‘This is important for my daily practice’, I have the idea that I am informed about the general line.”

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Dutch judge 3 on what should change concerning EU law

“That it becomes more familiar, that you get a more complete picture; that it feels more your own. I gave up the illusion that you can know all the Directives. It is important that you know the system, the main Directives.”

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It is totally unclear to me when I must apply EU law ex officio.n=335 (n Dutch=145, n German=190)

47,8%

23,0%

29,3%

clearunclearneutral

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Dutch judge 1 on the ex officio application of EU law

“The situation that I had to apply European law ex officio because it was a rule of public policy never occurred. In reality parties would point to these issues. And anyways, these issues would be in the papers way before the trial starts so it would not come as a surprise.”

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Dutch judge 5 on the ex officio application of EU law

“We do not feel morally bound to apply ex officio. The judge does not know that EU law plays a role, if he knows he might not apply it because it becomes too complicated. A European rule that contradicts a Dutch rule, we are not that inclined to apply.”

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I know how to interpret national law in harmony with EU Directives. (n=336)

57,2%

14,7%

28,1%

yesnoneutral

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Dutch judge 3 on harmonious interpretation

“If you do not know [that a national law is based on a Directive] you cannot do it [interpret the national law in harmony with the Directive].”

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It is clear to me how I must request a preliminary ruling(Dutch=145, n German=190)

0

10

20

30

40

50

60

70

80

90

100

clear unclear neutral

DutchGerman

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It is unclear to me what I must do with an answer to a preliminary ruling. (n Dutch=145, n German=190)

0

10

20

30

40

50

60

70

80

90

100

clear unclear neutral

DutchGerman

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German judge 3 on preliminary rulings

“We once told parties that we would stop a case in order to wait for an answer to a preliminary question. Shortly after, the parties reached an agreement.”

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Dutch judge 5 on preliminary rulings “If it is not necessary we don’t ask. It slows down

the procedure. I think that first there has to be a very serious discussion coming from the parties which I cannot solve before I would ask a preliminary question.”

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Which of the following sources do you use when looking for information on European law.(n Dutch= 138, n German=190)

0 20 40 60 80 100

external courses

internal courses

online databases

sector

Regulations

Directives

journals

ECJ judgments

textbooks

none

% German% Dutch

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How many hours (including preparation) did you spend on courses on European law in the past 12 months? (n Dutch=135, n German=155)

0 20 40 60 80 100

>40

31 to 40

21 to 30

11 to 20

1 to 10

0

% German% Dutch

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German judge 2 on training courses

“It is too far and not enough places. ERA does not exist for us. It only happens in the heads of politicians. We get the programme; we would get special vacation but would have to pay travel, hotel and the course ourselves. You could get rid of it immediately. ERA is completely uninteresting. DRA is better because you get it financed. It is a nice area. When I was younger I went there, today I do not want to leave my dog alone. I see no reason to go.”

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Do you feel the need for more information on EU law? (n=307, n Dutch=136, n German=171)

68,7%

31,3%

yesno

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As an estimate, in how many cases that you decided during the past 12 months, did EU law play a role? (n Dutch=134, n German=175)

0 10 20 30 40 50 60

>26

21 to 25

16 to 20

11 to 15

6 to 10

1 to 5

0

% German% Dutch

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Can you indicate to what extent you have confidence in the following institutions? (n Dutch=91, n German=136)

0 20 40 60 80 100

European Court of Human Rights

highest national court

European Court of Justice

Council of Ministers

Commission

national parliament

European Parliament

GermanDutch

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Conclusions› 1. Most judges in the Netherlands and Germany support

European integration and the EU. They accept EU law’s expectations regarding their role as decentralised EU judges. They trust the ECJ.

› 2. The perception Dutch and German judges have of EU law is predominantly based on a professional attitude towards the law: their views on EU law are mostly shaped by the problems and possibilities they encounter in their work as a judge.

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Conclusions› 3. Most Dutch and German judges report that EU law has a limited impact on the type of

cases they decide in their day to day work. Those judges dealing primarily with a highly Europeanized sub-field of private law apply that part of EU law more or less routinely.

› 4. Dutch and German judges consider their knowledge of EU law to be much lower than their knowledge of national law. Also, it is not always clear to them what EU law’s expectations of them as decentralized EU judges specifically entail.

› (We recommend knowhow development within the courts; training courses aimed at specific problems; legal literature addressing specific problems of EU law as part of a general discussion of the relevant (national) law; more guidance by ECJ and highest courts in explaining what the role as decentralised EU judge specifically entails.)

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Conclusions› 5 Given the high case load of Dutch and German lower

court judges and their limited time for researching the law, familiarity with a certain field or issue of EU law might be a factor determining whether judges are inclined to do anything with EU law.

› 6. Dutch and German judges want more information on EU law if it enables them to better recognize possible EU law issues and to better understand how to deal with those issues in the cases they decide.

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Recommendations› We recommend knowhow development within the courts;

training courses aimed at specific problems; legal literature addressing specific problems of EU law as part of a general discussion of the relevant (national) law; more guidance by ECJ and highest courts in explaining what the role as decentralised EU judge specifically entails.

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hiil national judges and european union law | dr. tobias nowak

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