‘Coherence in rulings? You’ll be lucky’, ex-ECJ judge reveals

By Peter Chapman

Date: 05/02/04

EU BUSINESSES and citizens are stretching their expectations too far if they believe judgements will always tally with years of case-law handed down by the European Court of Justice (ECJ) - and the situation will only get worse after enlargement, a senior judge admitted this week.

But Sir David Edward, the Briton who stepped down last month after 12 years at the Luxembourg-based court, said this should not come as a shock to the public, companies or their lawyers.

He pointed out that the panels of judges who rule on cases have never managed to ensure their rulings are 100% consistent.

"It is bound to be a problem. But on the whole it is better that people get an answer than a perfect answer every time. Ideally you will never get incoherence, but in practice you might get a lack of total coherence.

"In the course of my time at the Court I have signed more than 1,300 judgements. I was rapporteur [lead judge] on more than 500. It is unrealistic to think that in that volume of work you are going to achieve total coherence."

Many EU lawyers predict a log jam of cases following the 1 May enlargement of the EU to take in ten new member states.

They fear this will leave many more businesses and citizens - who already wait three years for many judgements - in limbo.

However, Edward, recently knighted by Queen Elizabeth II in recognition of his services to EU law, said these fears are overblown.

"A log jam is not inevitable. And it will take some time before the new member states are the source [of cases]," he told European Voice, after addressing members of the European Policy Centre.

However, he insisted that member states and the institutions need to have a "much deeper discussion" on reforms to the court system than the currently "superficial debate".

Edward said this would need to examine, in much greater detail, frequent demands for specialist chambers of judges to tackle specific issues such as tax, competition, or social affairs. Reformers claim this would make the ECJ and its junior partner, the Court of First Instance, better at handling complex cases in very specialist areas.

However he warned that setting up specialist chambers is "easier said than done; it is extremely technical".

Problems abound - for example, how can judges be nominated fairly for high-profile dossiers, without offending national pride. "Will they [governments] accept that Germany can nominate a tax judge while Slovenia can do social security?"

In the meantime, Edward said the Court can - and should - cope without bowing to demands to cut the number of languages in which cases are heard in the enlarged 25-member state EU.

One priority, he insists, is sticking in future to just one internal working language, currently French.

"When a case comes in, it is the language of that court [which referred the case to the ECJ] that determines the language of procedure. Some people say we have got to accept that you can't insist on every language being equal but have, instead, to accept that there are just three or four languages.

"But for my money you cannot ask a magistrate in Wolverhampton [an industrial town in the English Midlands] to apply a law in French, or ask a Slovakian to apply a law that is in a language other than Slovakian."

Meanwhile, the Edinburgh-based judge brushed-off frequent calls for the EU to follow the US example, where federal courts operate on a circuit basis.

Edward, who is replaced on the ECJ benches by British judge Sir Konrad Schiemann, said it was "unrealistic" to have European judges "run round about the place".

The notion of judges travelling around on a legal caravan would "create an enormous scandal" in member states, he insisted.

Translation and travel costs alone would eat up a huge amount of money, he suggested, adding: "It is better to centre it in Luxembourg."

One way of speeding-up the process and cutting costs would be to allow "tele-pleading" using TV signals piped from member states, he said.

However, Edward warned that the plethora of technological solutions are not yet fully compatible with one another.

A bit like the judges?

Interview with Sir David Edward, who stepped down in February 2004 as a senior judge at the European Court of Justice.