Born in 1957; law degree (Trinity College, Dublin, 1975-79); Research assistant to Senator Mary Robinson (1978-79 and 1980); Pádraig Pearse Scholarship to study at the College of Europe (1979); postgraduate studies in European law at the College of Europe, Bruges (1979-80); Master’s degree in law at the University of Cambridge (1980-81); Trainee at the European Parliament (Luxembourg, 1981); Administrator in the Secretariat of the Committee on Legal Affairs of the European Parliament (Luxembourg, 1981-88); Member of the Legal Service of the European Parliament (Brussels, 1988-95); Legal Secretary at the Court of Justice (1995-2000); Lecturer in European law at Harvard Law School (2000); Member of the Legal Service of the European Parliament (2000-03), then Head of Unit (2003-11) and Director (2011); author of numerous publications; Judge at the Civil Service Tribunal since 6 October 2011.
1. In the beginning would you like to provide a short description of your formative years in law, which is certainly very useful to “apprentices” in law.
Would you like you to point out major influences during your career (concerning also methodology)?
Regarding my formative years, I am assuming you have already consulted my biography on the Court’s website. For further information, I enclose with this interview the text of a talk I gave at the end of the academic year to LLM students at the University of Maastricht last December [i.e. 2011] .
The following lawyers have most influenced me during my (long) career in EC/EU law:
- Senator Mary Robinson (later President of Ireland) taughtme EC law as an undergraduate at Trinity College Dublin, and encouraged me to pursue postgraduate studies in this field at the College of Europe, Bruges (as the courses were partly in French);
- Claus-Dieter Ehlermann, who taught the institutional lawcourse in the College of Europe; as a practising lawyer, he stressed the importance of taking a clear position on legal questions, indecision being a luxury practitioners cannot afford; I later admired his work as Director-General of the Commission’s Legal Service, in his contacts with the European Parliament;
- Different colleagues in the secretariat of the EP Committeeon Legal Affairs (1981-1988), notably Saverio Baviera and Dietmar Nickel, and later in the EP Legal Service (1988-1995 and 2000-2011), and particularly Gregorio Garzon Clariana (former EP Jurisconsult), Christian Pennera (currently Jurisconsult of the EP) and Johann Schoo (former Director in the EP Legal Service);
- Finally, amongst numerous academics, I would singleout Professor Blanca Vila Costa of the Universitat Autonoma de Barcelona, who first invited me to teach part of an LLM programme, Professor Koen Lenaerts of the University of Leuven (now vice-President of the ECJ), and in particular his writings on constitutional and institutional law of the EC/EU and, most of all, Professor Joseph Weiler of NYU, who is a good friend and mentor.
Being a common lawyer of a pragmatic turn of mind, I do not give much thought to “methodology” (if you mean the study of methods and their employment). For the same reason, I have always sought to ground my legal analysis on close examination of the text as a whole (wording and purpose) and of the case-law in so far as this is relevant, if this is what you mean by “methodology”. I approach my academic writings and teaching as a practising lawyer, which I hope helps me see the wood rather than just the trees.
2. Could you please describe your experiences acting as an référendaire at the European Court of Justice? What models do you have among Judges and AGs at the ECJ?
I found my time as reféréndaire at the Court of Justice immensely valuable and professionally fulfilling.
In the first place, the working atmosphere in the cabinet of Advocate General was exceptionally good, partly because of the personality and wise management of Mr Fennelly himself, and partly because of the other staff in the cabinet, in particular the other two référendaires who are both talented and hardworking lawyers: Anthony Whelan is head of cabinet of Commissioner Neelie Kroes, while Noel Travers is a successful barrister in Dublin, specialising in EU law work (including, for example, acting for Ireland in the Pringle case ). I don’t know if it is a record for stability of cabinet personnel, but all three reféréndaires stayed at the Court for the entirety of Mr Fennelly’s mandate.
In the second place, I enjoyed the variety of legal issues we had to consider (I say ‘we’ as all but the most routine matters were discussed in a collegial manner by the Advocate General and the référendaires), both substantive (everything from the legal basis of the first Directive on tobacco advertising via the interpretation of the Fifth VAT Directive and the protection of wild birds to the non-execution by a local authority of a contract with the Commission) and procedural (the day after joining the cabinet, I advised Mr Fennelly on the admissibility of a somewhat scanty reference for a preliminary ruling from a national first instance judge, then a very sensitive issue in the wake of Telemarsicabruzzo).
Thirdly, the working atmosphere of the Court itself was generally agreeable, both between the Advocates General amongst themselves and in Mr Fennelly’s relations with the various judges, particularly the judge-rapporteurs. Of course, at 24 members (15 judges and 9 Advocates General), the Court was significantly smaller than it is today.
As to models, when I was a référendaire I had relatively few direct dealings with the judges themselves (as distinct from their cabinets), and in any case, the Court’s decisions are collective, with the individual judge (even the judge-rapporteur) being only one of three, five, nine or eleven (or 15, or even 27) judges. From my few dealings with him, I found President Rodriguez Iglesias an excellent leader, while being respectful of the independence of the individual judges.
Of the many Advocates General with whom I have come into contact and admired (both as a référendaire and as an agent in cases I argued before the Court on behalf of the European Parliament), along with Mr Fennelly, I would pick out (Sir) Francis Jacobs and Giuseppe Tesauro, who consistently demonstrated the independence of mind, brilliance of legal analysis and soundness of judgement which characterises par excellence the contribution an Advocate General can make to the work of the Court.
You will, I am sure, understand that I would prefer not to discuss, in a public forum, current members of the Court (at any level) in their judicial capacity.
3. You have acted for a long period of time in the LegalService of the European Parliament. Are there any peculiarities for activities carried within that institution compared to other EU institutions?
Working as a legal advisor and agent for a major political institution of the EU is of course quite different from working as a judge or référendaire. A legal advisor (other than those dealing with administrative and other internal matters) has essentially two main tasks. In the first place, he (there are lots of “shes” of course, but I will use the masculine pronoun for convenience) assists the institution (in practice, usually the committee in charge) in promoting its position in the framework of interinstitutional contacts at all levels (between officials of the different institutions, between MEPs and Permanent Representatives, between MEPs and ministers, between vice-Presidents of Parliament and the Council Presidency ...), where legal issues are often very prevalent.
Secondly, in line with the system of representation of interests which underlies the Union’s institutional system, he assists the institution in identifying and defining (along with the political bodies) any right or prerogative of the institution which may need to be defended in Court proceedings, and later engages and manages the litigation. In this second regard, the advisor may take the initiative in bringing problems (procedural flaws in the adoption of acts of the other institutions, incorrect choice of legal basis or comitology procedure ...) to the attention of the political authorities of the institution, who of course have the last word on whether proceedings should be commenced or not.
4. From your point of view, what are the most importantrecent developments concerning the EU legal order?
I have been working in this system for over thirty years, so for me the answer depends on what you meant by “recent”!
One of the strengths of the EU’s legal order is its in-built capacity to develop organically, in function of the needs of its institutional and political system, including as regards the place of EU law in the legal orders of the Member States, as it did in a largely autonomous fashion for the first three decades of the European Communities. Though hardly recent, one of the most important developments in my time is the take-over (rightly so) of the reform process by the Member States and political institutions (including a participation of national parliaments), rather than leaving it to the Court (on the prompting of the Commission).
That said, the political failure of the Constitution for Europe (which was a failure by a number of national governments, rather than the EU institutions; all the governments had signed up to the Laeken Declaration) and its successful implementation in the form of the Lisbon Treaty are major developments, but both were, and were intended to be, evolutionary rather than revolutionary. Thus, the so-called “communitarisation” of justice and home affairs (just when the term “Community” was abandoned), the +/- generalisation of the codecisional legislative procedure and the recognition of the legal effect of the Fundamental Rights Charter are, in my view, more in the nature of the correction of legal(-political) anomalies than great leaps forward.
Less obvious to the naked eye perhaps is the increasing judicialisation of certain sensitive decisions, such as the treatment of third country nationals in the EU (=Member States) territory, and the disintegration inherent in techniques such opt-outs and enhanced cooperations (and indeed different soft law approaches, such as the open method of coordination), though each in turn might be considered a reaction to the extension of the ambit of the Union’s decision-making powers, both in terms of penetration and material scope.
5. Could you please point out the advantages of theLisbon Treaty compared to those of the former project of a “Constitution for Europe”? We are asking this question taking into account that in 2003-2004 you served as a legal expert advising on the drafting of that “Constitution”.
Many commentators would see the Lisbon Treaty as being disadvantageous compared to the Constitution for Europe rather than having particular “advantages”. To be blunt, the major advantage of the Lisbon Treaty is that it has entered into force, whereas the Constitution was abandoned by certain of the governments who had pushed for its drafting. The fact that the European project was for so long pursued by elites without any popular debate (see question 4), still less the possibility of a vote which would count for something (except in Ireland and, occasionally, in one or two other Member States), is regrettable and if the Constitution paid the price, so be it.
By the way, the drafting of the Constitution was very much a political process; the room for manoeuvre for “legal experts” was rather limited, though it gave me the opportunity to familiarise myself with certain Treaty provisions and explore certain legal problems I’d not encountered (much) before, and to work with some excellent colleagues from the Legal Services of the Commission and Council.
6. What is the use of national law in the legal reasoningof ECJ? And moreover which is the influence/the role played by comparative law (from a methodological point of view) in the judgment of ECJ?
For the CST (and I think it would only be appropriate for me to comment from the perspective of this court, not the ECJ or GC), national law can only play a rather small part, in that we are applying a body of rules which has been developed in legislation (staff regulations, implementing provisions) and case law over most of the history of the EU. Moreover as a court dealing essentially with the internal affairs of the institutions and agencies, our decisions do not impact national law in any significant way. That said, we are occasionally invited to take account of principles and rules of both general EU and national law on employment matters as well as national practices in new or underdeveloped areas such as friendly settlements in employment disputes or the definition of moral harassment in the workplace.
7. To sum up the above questions: Would there be anyrisks concerning the activism of the European Court of Justice – i.e. Is there such a thing as activism on the part of the ECJ?
Is the preliminary reference a strictly legal element or is it a mechanism significantly influenced by other factors – political, economic and so forth?
The so-called activism of the ECJ is a vast topic; what is clear and in my view incontestable is that the Court is increasingly being called upon to arbitrate disputes of a fundamentally political character, notably regarding the extent of European integration, such as the recent Pringle case (judgment last Tuesday ) and the pending dispute on recourse on enhanced cooperation in the area of patent protection . In such circumstances, activism, like beauty, is in the eye of the beholder. It’s not original, but if the reasoning advanced by a court is legally sound, then it is inappropriate to call the result “political”.
8. What would be the limits – if any – concerning theacademic opinions expressed by Judges? In this context, which is your point of view on dissenting opinions; is this a kind of “knowing for the sake of knowing” (as in case of concurring opinions) or could that lead to a genuine familiarisation with the ECJ as a whole?
This is a somewhat self-referential question, in that you are asking judges to provide their opinion on certain academic matters! There is of course a statutory provision on recusal of judges from particular cases (Article 18 [of the Statute of the] CJEU) which provides some minimum guidance; there is also the 2007 code of conduct for members of the Court(s). Personally I would not answer questions on specific legal questions which are likely to come before the CST.
I have not seen a convincing argument for allowing dissenting (or concurring) opinions in a collegiate court of first instances, such as the CST, whose decisions are in any case open to appeal on a point of law. In the operation of the ECJ, the AG’s opinion can, to some extent, perform some of the functions of a dissenting/concurring opinion, in providing a different, authoritative, view of the legal issues raised.
9. We would like to ask you to point out the specificities of the Civil Service Tribunal compared to those of other EU Courts. In the first place, is the system of appointment at this Court the future of EU Courts? We are referring to the fact that the selection system for the Civil Service Tribunal does not take into account the nationality of the candidates. In other words, is a Court with a smaller number of Judges (that of the Member States of the EU) a suitable criterion of effectiveness in delivering justice at the EU level?
I have mentioned some of the specificities of the CST earlier. Your question regarding the mode of appointment is an interesting one; as you know, the Lisbon Treaty did not adopt the CST appointment procedure for the ECJ and GC, though it could have (as this was already in operation when the Lisbon Treaty was drafted). The CST is a specialist court, and specialist knowledge of EU staff law and of the operation of the Union courts are clearly prime (though not the only) considerations, while nationality is not; rather it may be a negative factor, in so far as the Council applies (as it did in 2011) a system of rotation amongst the Member States over time, thereby excluding candidates from Member States which have already had a judge in the CST.
As long as the ECJ has one judge from each Member State (i.e. the foreseeable future), the Article 255 committee procedure seems to be highly appropriate; each Member State will more easily accept the negative rulings of the ECJ if it knows that a judge of its nationality, which it has itself nominated, is present in the Court. Moreover, in so far as it is possible to understand its workings (evaluations of individual candidates proposed by the Member States are confidential) the Article 255 committee procedure seems to be doing its job well.
Though the GC also adopts judgments which may affect directly the interests of individual Member States, it may be possible to argue for the CST model rather than the Article 255 committee procedure. The issues the GC deals with in this regard are often economic (eg State aids or agricultural payment) or administrative (most infringement actions) rather than constitutional. Moreover, if the GC were to move to a composition which no longer reflected the number of Member States, such as was proposed by the Court last year (12 extra judges for 6 years), this might be seen as strengthening the case for appointing all the GC judges by a CST procedure, while ensuring that no more than two judges of any one Member State were present at the same time. If so, however, it would be appropriate that the criteria for appointment to the GC (which would be different from those for appointment to the CST) were laid down in the Statute of the Court.
Thank you very much.
Interviul face parte din lucrarea ”Interviewing European Union. Wilhelm Meister in EU law”, Coordonatori: Daniel Mihail Sandru și Constantin Mihai Banu, Editura Universitara, 2013