Committee on Constitutional Affairs Ordinary meeting

04:43 - 07:20

Csaba Bogdán

Yes, I would say a few words. So, dear members, dear colleagues, first of all, I thank you for giving me the opportunity to stand or sit before you today and take part on this election. As some of you already knows, I'm not a lawyer or legal professional. My background is in engineering, medical sciences, history and classical philology. Maybe that is why I usually think in systems.

When I see problems, I first want to understand why the system works the way it does. Only after that do I think about how it could be improved. When I arrived in the European Parliament at the beginning of June, I did not expect to become the member of AFCO. I just simply inherited this committee. But I was happy to be part of this specific group because the work you do here is not always the most visible part of politics.

I would say it's not spectacular, not necessarily spectacular, but it affects almost everything else. It affects how institutions work, how power is exercised, how conflicts are managed and ultimately whether the citizens trust the democratic systems we are all part of. I am in my first weeks. I spend much more time listening than speaking. I want to understand first.

For me, the good work, and I suppose the good constitutional work also starts with understanding reality before trying to change it. I do not expect everyone to think the same, but I believe we all have a responsibility to leave our institutions stronger than we found it before, than we found them. Whether you elect me today or not, this will remain my approach in this committee and in my whole European parliamentary work. And if you do elect me, I will do my best to justify your trust you gave me anticipated, I would say. Thank you.

07:20 - 12:27

Sven Simon

Thank you very much. Are there any additional candidates?

This is not the case. So no other candidates have been put forward, which means I would propose that we proceed, even if that is a little bit a disappointing moment always for the candidate, to an election by acclamation pursuant to Rule 219, paragraph 2 of the Rules of Procedure. Maybe you can spend applause or something like that for that. So congratulations also on your speech, Mr. Bogdan. Please come up to the podium.

Now you are very important, at least in this room for this moment. So then we can proceed to item number 7, the institutional framework of the European Union and its interaction with national authorities in the application of Union law, with particular reference to Article 19, Treaty on the European Union. Ladies and gentlemen, colleagues, this is the first exchange of views on the draft report concerning the institutional framework of the European Union with particular reference to Article 19. We will subsequently explore the subject in greater depth during a hearing with the invited experts, who at least one I see is already here. The draft has already attracted some attention, and given the political and constitutional importance of the subject, different views are hardly surprising.

It is therefore all the more important that we now conduct the parliamentary procedure with openness, care, and the necessary seriousness. The European Parliament, in my opinion, is a place for free, pluralistic, and democratic debate. It must be possible to examine critically the work, case law, and institutional development of the institutions of the European Union. No institution should be placed beyond objective scrutiny. At the same time, this debate should not be narrowed by premature judgments, political labels, or personal attacks.

The importance of the subject can hardly be overstated. The European Union is an area, and we are proud and happy about that, of freedom, security, and justice. Law is the common foundation that is intended to hold our Union together. Article 19, paragraph 1 of the Treaty assigns a central responsibility to the Court of Justice of the European Union. It states, I quote, "It shall ensure that in the interpretation and application of the Treaties the law is observed."

This responsibility is fundamental to the unity and proper functioning of the European legal order. At the same time, it is legitimate and necessary to discuss how the Court exercises that responsibility, how its case law relates to the principle of conferral, to the competences of the Member States, and to their national identities, and what standards of transparency, consistency, and institutional legitimacy should apply. As Chairman of the Committee on Constitutional Affairs, I will ensure that we take the time necessary to consider this report properly. A rushed procedure would not do justice to the importance of the subject. We will have to include the JURI Committee and would maybe hold a common meeting.

The deadline for amendments, I think, will of course not be in September. This needs to be discussed, but I think it's a bit short for, I mean, the meaning of this subject. We will need to examine the draft thoroughly and in several stages. That cannot be done in one day or one afternoon.

My objective, colleagues, is a substantive report that takes legitimate criticism seriously and examines it carefully without calling into question the fundamental role of the court or the European legal order as such. I hope that at the end of this process, we will be able to achieve the broadest possible majority in this committee and in Parliament. It is one of the strengths of a free democracy that the foundations and functionings of its institutions can be discussed openly. In that spirit, colleagues, I look forward to a serious, respectful, and substantive debate. Mr. Rapporteur, you have the floor.

12:27 - 18:53

Charlie Weimers

Thank you, Mr. Chairman, dear colleagues. We have already had two useful discussions on this file during the first shadows meeting on the 22nd of April and the exchange of views on the 5th of May. The comments made on those occasions have helped shape the draft report that is to be presented at this moment. The report before you concerns the role of the Court of Justice when it interacts with national courts in the application of Union law. The Court of Justice is responsible for the uniform interpretation of Union law.

National courts and tribunals apply that law every day, and the preliminary ruling procedure is the main channel for dialogue between them and the court. Article 19 in the Treaty of the Functioning of the European Union requires member states to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. The court has linked that provision to the rule of law value in Article 2 and has used it to develop common requirements concerning judicial independence. The court holds that national courts not reaching these requirements are ultimately not compatible with Union law. That case law has had tangible effects.

The court has found some national disciplinary systems incompatible with Union law. It has required national courts to set aside some decisions of constitutional courts. It has questioned whether some national judicial bodies may take part in the preliminary ruling procedure at all. It has also developed a principle of non-regression in the field of judicial independence. Some of these rulings have protected judicial independence in member states where problems existed.

But they also raise questions of constitutional significance, which have been debated by politicians and legal scholars alike. These questions mainly revolve around the legal basis, limits, and implications of the court's involvement in the organization of member states' judicial systems. The report approaches these matters by returning to the treaties. The Union may act only within the powers conferred upon it. Article 19 provides that member states must provide effective legal remedies.

judiciaries. Instead, the report recognizes the need for more serious engagement with national constitutional and supreme courts. Courts in several Member States have raised questions about constitutional identity, ultra vires review, and the boundaries of Union competence. These concerns cannot simply be ignored as resistance to Union law; instead, they should be answered through precise reasoning and dialogue. A substantial part of the draft therefore examines the Court of Justice itself in the context of the significant functions it has assumed.

The Court exercises extensive procedural and organizational powers. This entails the designation of reporting judges, the formation of chambers, and the allocation of cases. The President of the Court has a central internal role in these decisions. The report asks for reflection on clearer and more foreseeable rules on case allocation, the designation of reporting judges, and the composition of judicial formations. The principle of a tribunal established by law should be visible in practice.

In this context, it is important to remember that the authority of the Court depends not only on the correctness of its judgments, but equally upon the transparency of its procedures and the neutrality of its institutional structure. The same applies to legal reasoning. Judgments with major effects are repeatedly criticized by legal scholarship for being methodologically inadequate. Well, wow. Yeah, the report asks the Court to state more clearly whether it's relying on the text, structure, history, or purpose of a treaty provision and how competing interpretations have been assessed.

Furthermore, the report sheds light on the absence of dissenting and concurring opinions. At present, the public sees only the final judgment. Deliberations and voting remain secret. Opinions of Advocates General often provide the only published alternative legal analysis, yet the Court increasingly decides cases without one. I propose consideration of a more reciprocal form of constitutional dialogue.

In cases concerning constitutional identity or unresolved questions of competence, the Court could invite observations from the relevant constitutional or supreme courts before giving its judgment. So, dear colleagues, if the Court is to ask national judicial systems to meet demanding standards, then its own procedures should meet the same test. That means transparent case allocation, predictable methods, institutional neutrality, and judgments that clearly explain how the Court reached its conclusions. I welcome your comments on the draft and I look forward to continuing the discussion at the forthcoming hearing. Thank you very much.

18:53 - 23:11

Tomislav Sokol

Thank you very much. I now give the floor to the shadow rapporteurs for three minutes each, and the first shadow rapporteur will be on behalf of the European People's Party, Tomislav Sokol.

Thank you, Chair. Thank you very much for giving me the floor. First, I would like to thank the rapporteur for all the work that he has put into this report. First, what I would like to say is that definitely Court of Justice of the EU is an indispensable part of the rule of law in the EU, and I don't think that anybody questions that.

indispensable now, but it has been crucial in steering and creating, I would say, the independent Union legal order through its judgments and also filling the holes, the legal lacunas that existed in the legal framework of the European Union law, European Economic Community law at the time in 1960s, 1970s and 1980s. So in a sense of establishing independent Union legal order, Court of Justice has been crucial. And it's still crucial and it's still the most important cornerstone of the rule of law in the European Union, and I would like to very strongly stress that. On the other hand, there's also there are also different questions that need to be raised, and I agree with what the chair said, that no institution should be beyond discussions, different interpretations, different points of view, etc. I think the the report raises some of the some of these questions, so and I think I would just highlight a couple of those.

So first is the question of the teleological interpretation of the Union law that has been also the most important methodological tool that the court has been using since 1960s in in interpreting and implementing the the Union law. But of course teleological interpretation can sometimes be seen as pretty broad, and there have been different interpretations and different analyses of this also in the legal literature, so it's important that this is something that is also mentioned. I would like to add and highlight the principle of mutual mutual recognition as well as one of the most important principles of EU that has been very important part of the jurisprudence by the Court of Justice, but which has also, especially in areas like family law, raised questions about about its implementation, especially in cases where national law does not does not allow some things, but you but they have to recognize it when this is something that has been decided in other in other member member states. So this is something that definitely is important part of EU law. This mutual recognition principle has very strong spillover effects in national law, and this is something that definitely should be should be discussed.

Also one one thing that is that is important that has been discussed in the legal literature a lot, that's the question of the openness and working methods of the Court of Justice. We know that a lot of courts, I will mention the example of the US Supreme Court, which is notable for its concurring and dissenting opinions, which give a lot of insight into the reasoning of the court, which is not present in the in the Court of Justice. And this is also a topic that is definitely interesting to mention and maybe raise some parallels between how the the Court of Justice of the EU works when compared to the US Supreme Court and other and other highest courts in different jurisdictions. And the third thing that I would like to highlight as very important topic, that is the question of cooperation with national courts. So as the president of the Court of Justice, Koen Lenaerts, has said on multiple occasions, national courts are indispensable for implementation of Union law.

So Union law is not implemented, interpreted by the Court of Justice, but also the system of the national courts who have to implement it in concrete situations, in concrete cases, especially taking into account the principle of direct effect of Union law, which which actually imposes an obligation on national courts to implement and interpret Union law in in concrete cases. And and this importance of national courts is in the system of application of Union law is extremely extremely important. So I think these are the most important topics that we will discuss. The report will provide us with the basis for the for the for the debate. Of course, of course there is room for improvement.

I will table amendments in light of that and then look forward to the good work with the rapporteur and the shadows as well. Thank you.

23:11 - 23:18

Sven Simon

Thank you very much. Now the shadow rapporteur for the Socialists and Democrats, Vasile Dîncu.

23:18 - 27:52

Vasile Dîncu

Thank you, Mr. President. I speak in Romanian.

Stimați colegi, acest raport pornește de la o intenție legitimă. Cu toții dorim un stat de drept mai puternic și o aplicare mai eficientă a dreptului Uniunii. Și, așa cum spunea și domnul președinte înainte, nicio instituție nu poate fi plasată în afara dezbaterii parlamentare. Problema este însă că pe parcurs raportul se îndepărtează de acest obiectiv. În loc să încurajeze cooperarea dintre Curtea de Justiție și instanțele naționale, el construiește imaginea unei relații aproape inevitabil conflictuale.

Din perspectiva grupului S&D, aceasta nu reprezintă realitatea juridică a Uniunii. Construcția europeană nu s-a dezvoltat prin confruntare permanentă între instanțe, s-a dezvoltat mai degrabă prin dialog. Articolul 19 nu este un instrument împotriva instanțelor naționale, este mecanismul prin care Curtea de Justiție și instanțele statelor membre garantează împreună protecția jurisdicțională efectivă. Această idee ar trebui să fie punctul de plecare al întregului raport. Din acest motiv, considerăm că analiza Curții de Justiție este dezechilibrată în acest raport.

Raportul vorbește aproape exclusiv despre limite și riscurile activității Curții și prea puțin contribuția sa la dezvoltarea Uniunii juridice europene. Să ne amintim unde eram acum câteva decenii și unde suntem astăzi: piața internă, protecția drepturilor fundamentale, aplicarea uniformă a dreptului Uniunii, protecția jurisdicțională efectivă. Toate acestea au fost construite prin jurisprudența Curții de Justiție. Nu trebuie să ne temem de această realitate, trebuie să o înțelegem. Mă surprinde de aceea că raportul apreciază creativitatea jurisdicției americane, dar privește cu suspiciune evoluția jurisprudenței europene.

Orice sistem juridic aflat în dezvoltare are nevoie de o instanță care să interpreteze dreptul în lumina unor realități noi. Curtea Supremă a Statelor Unite a făcut acest lucru de-a lungul întregii sale istorii. Doctrina Constituției vii este doar unul din aceste exemple. Hotărâri istorice precum Brown versus Board of Education au devenit posibile tocmai datorită unor interpretări evolutive a Constituției. Și Uniunea Europeană este o ordine juridică în evoluție.

Nu putem cere Curții de Justiție să fie garantul uniformității dreptului european și în același timp să-i refuzăm orice capacitate de dezvoltare jurisprudențială. Aceasta nu înseamnă activism judiciar. Asta înseamnă responsabilitate constituțională. Desigur, această evoluție trebuie să respecte tratatele și principiul atribuirii competențelor. Dar este greșit să transformăm orice dezvoltare jurisprudențială într-o suspiciune de depășire a competențelor.

Voi spune foarte clar: împreună cu colegii mei, grupul S&D am putea susține un raport privind articolul 19, dar unul care recunoaște supremația dreptului Uniunii Europene, realizările Curții, încurajează un dialog sincer între instanțele naționale și Curtea de Justiție și le protejează de abuzurile puterii executive și prezintă o imagine clară a autonomiei procedurale și a identității naționale nu ca fiind incompatibile, ci ca fiind complementare cu dreptul Uniunii Europene. Și dați-mi voie ca sociolog să mai spun un singur aspect. Cred că înainte de a discuta despre limitele Curții, ar trebui să ne reamintim rolul pe care această instituție l-a avut în construcția europeană. În literatura de specialitate există o idee devenită aproape consens: integrarea europeană nu s-a realizat doar prin voința politică a statelor membre și nici exclusiv prin tratate. Ea s-a construit și prin drept.

Joseph Weiler a descris acest proces prin expresia integrare prin lege, integration through law.

Curtea de Justiție nu a fost doar gardianul tratatelor, ea a fost una dintre instituțiile care a făcut posibilă funcționarea efectivă a proiectului european. Acest lucru nu înseamnă că instanța a creat competențe noi sau că a substituit voința statelor membre. Înseamnă că a transformat principiile generale în reguli capabile să producă efecte concrete pentru cetățeni, administrație și instanțe. Aceasta este contribuția sa constituțională. Mulțumesc, domnule președinte.

27:52 - 27:57

Sven Simon

Next speaker is the shadow rapporteur for the Patriots, Fabrice Leggeri.

27:57 - 32:19

Fabrice Leggeri

Thank you, thank you very much, Chair. I will speak in French. Tout d'abord, je souhaite remercier et féliciter le rapporteur Charlie Weimers pour ce projet de rapport qui me paraît très équilibré, très clair, très concis également et qui donc aura toutes les chances d'être lu et d'avoir la portée qu'il mérite. Dans les quelques amendements que je serai amené à faire, je respecterai évidemment cet esprit de concision parce que je crois que le droit effectivement doit s'exprimer de la sorte. De manière générale, mon approche est que évidemment on doit reconnaître le rôle de la Cour de justice de l'Union européenne tel qu'il lui est conféré par les traités.

Et je crois que personne n'a ici l'intention de nier cette réalité juridique et institutionnelle. Il s'agit au contraire, je crois, par ce rapport, et je pense que le projet qui nous est proposé par Charlie Weimers en atteste, il s'agit d'affirmer l'importance des compétences qui sont attribuées à la Cour de justice de l'Union européenne. Mais si je puis dire, c'est aussi parce que ces compétences qui lui sont attribuées sont importantes qu'il faut aussi veiller à ce qu'elles ne soient pas détournées de leur objectif institutionnel. Et on l'a vu au fil des ans et on le voit peut-être de manière de plus en plus fréquente, le respect des, enfin le détournement de certaines attributions de la Cour de justice de l'Union européenne permet un déséquilibre institutionnel et en particulier permet à la Commission européenne de développer bien au-delà de l'esprit et de la lettre des traités des compétences. On le voit par exemple à l'œuvre dans le domaine du marché intérieur.

On le voit par exemple à l'œuvre dans le domaine de la liberté de mouvement qui sont utilisés pour pousser toujours plus loin certaines politiques, pour ne pas dire certaines idéologies. Le paragraphe 7 le montre très bien. Et je crois que l'esprit qui doit prévaloir, qui est celui d'une coopération loyale entre les institutions, une coopération loyale entre les États membres et les institutions de l'Union européenne, gagnera beaucoup grâce à ce rapport qui nous rappellera un certain nombre de principes. Je soutiens également totalement mon collègue Charlie Weimers en ce qui concerne la transparence et la méthode de fonctionnement de la Cour de justice dans la manière dont elle attribue les dossiers dans son fonctionnement interne. Et également, je regrette pour ma part aussi le fait qu'il n'y ait pas la possibilité d'avoir des ou d'exprimer pour les juges des opinions séparées ou des opinions dissidentes.

Les cours qui pratiquent cela permettent aussi de mieux comprendre les raisonnements juridiques qui se sont confrontés, même si j'en ai conscience, ça ne permet pas de renverser la décision finale, mais ça permet d'éclairer en tout cas les raisonnements juridiques à l'œuvre.

Alors il y a peut-être un point sur lequel j'aurais une position un peu différente, vous n'en serez pas surpris, c'est celui de la langue française. Je suis français, je viens d'un groupe patriote, mais nous arriverons évidemment à exprimer tout cela dans des termes qui permettent la coopération et qui permettent aussi la diversité et le pluralisme et le respect mutuel qui, je crois, fait partie de nos valeurs. Alors pour conclure, je suis évidemment désireux de continuer le travail en félicitant Charlie Weimers pour ce qu'il a déjà produit, continuer le travail avec notre rapporteur, continuer le travail avec les autres shadow-rapporteurs et en tout cas un grand merci pour cette excellente ambiance de travail entre nous.

32:19 - 32:26

Sven Simon

The next speaker is the shadow-rapporteur for Renew, Sandro Gozi.

32:26 - 38:57

Sandro Gozi

Thank you, Chair. We think that this draft report is not a valid working basis and it risks to become a missed opportunity. It risks to become a missed opportunity because every institution has totally the right, the legitimacy to scrutinize our institutions, and I think that this is absolutely the role that we should exercise. But it is a missed opportunity because this is not an institutional scrutiny, it is a blatant political attack to the role of the Court of Justice and an attempt to historically giving a new lecture, negative, on the key role that according to the treaty the European Court of Justice has exercised in the integration process since the very first cases, Meroni or Costa versus ENEL, today. And I think that, if I can say like that, my teleological interpretation of this report is that it aims to reverse the very fundamental pillars around which, also thanks to the jurisprudence of the Court of Justice, the European integration system is built upon, starting with the already mentioned principle of primacy of EU law.

We do not share the very negative analysis of the dialogue between the constitutional courts and the European Court of Justice. Of course there has been, I mean, I would say positive competition between the courts and positive discussion over the years and over the key leading cases of the Bundesverfassungsgericht, the Conseil d'État, Corte Costituzionale, etc., and the European Court of Justice. But our reading is not as negative as the rapporteur. Our reading is that this dialogue between national constitutional courts, national supreme judiciary body and the European Court of Justice should continue, should nurture the reflection, but shouldn't be presented in such a negative way. We do not think that the power of the President of the European Court of Justice are an anomaly.

We can discuss, this is exactly something that we could very usefully discuss under our institutional scrutiny mission, but I mean it is not an anomaly. In France, in Italy, in Luxembourg, in Belgium, the power of the President of the Court are exactly the same because the European Court of Justice, when it was conceived, was mainly inspired by the model of the founding member of the Member States, which were France, Italy and Benelux, which have a certain kind of, I mean, structure in the Supreme Court. So I mean we can discuss, but I mean also this is not an anomaly, it is based on valid and legitimate national experiences.

I think that it doesn't fall within our scrutiny power to decide which method of interpretation the Court, the European Court of Justice should follow. I think it is clear that the European Court of Justice has very often, not always, very often followed the theological, teleological interpretation, but not because the judges of Luxembourg have invented this, but because the Article 1 of the treaty indicates as main institutional political objective of our Union an ever closer union. And it is based on Article 1, ever closer union, the European Court of Justice has opted mainly, but not only, for on certain cases a teleological interpretation. But we shouldn't be us, should be us, elected member of the Parliament to say to the independent judges which method of interpretation should follow. Imagine if today the US President or the US Congress decided to say to the Supreme Court which kind of method of interpretation they should follow, what should we say, what would we say here?

We would cry at the violation of the separation of power, the rule of law, and we would be rightly so. So I mean, I also think that this is, I mean, is pretty flawed as a, as an approach. Again, on the dissenting opinion, the Court, the European Court of Justice has privileged always the collegial work, the collegiality work. That was at the beginning the choice, the opti, the option of the European Court of Justice. The two systems are good.

It is good a system which privilege collegiality and therefore doesn't, a strong collegiality and therefore doesn't preve, doesn't foresee dissenting opinion. It is applied for the European Court of Justice, it is applied for the European Commission. It is legitimate a system which foresees dissenting opinion. The two are, are, are, are legitimate. The European Court of Justice has opted for one.

So I mean, also from this perspective, I, I don't see the danger. Use of French. I mean, this is also something, something which is a free choice of the European Court of Justice. They started to work among them in French, they developed the practice to use French. In the European Commission, they started to use English, German and French, and now they use English.

This is linked to the evolution of the institution and the free choice of institution, of the, of the institution. So I hope at least we let the judge choose the language they want to use. And I mean, as elected in France, I'm very pleased too that they use French, but this is not the point. The point is the independence of the judges also to organize the language they use for their, for their dialogue. So I mean, I think that the, we as a Parliament should give an evidence-based scrutiny.

I don't see any evidence which supported the, the main point of this report. We should defend rule of law and we should also preserve judicial independence. I don't find this fundamental element in the report. So I mean, as in its current form, for us it is not a valid working basis. Thank you, Chair.

38:57 - 39:03

Sven Simon

Thank you very much. The next speaker on behalf of the Greens is the shadow rapporteur for the Greens, René van Lanschot.

39:03 - 42:02

Reinier Van Lanschot

Thank you, Chair. Thank you, rapporteur, and thank you to all the shadow rapporteurs for expressing their opinion and working on this file. I'm happy to hear many express that they want to strengthen the rule of law, but my observations when I read the first draft is that there are fundamental aspects missing.

I think instead of improving transparency, legitimacy and efficiency of the court, the proposals in this report actually have the danger of making the court less effective at defending the rule of law across our entire union. To state a few examples. I think the proposals here could undermine the authority of the president of the court, and that would not make it more democratic, but it would slow down processes and worsen an already very strained capacity to process cases. Secondly, I think having every step of the Court of Justice reasoning in public scrutiny could also politicize the court and make it less objective. Thirdly, reciprocal constitutional dialogue mechanism, difficult word for me to pronounce, could give state-captured courts a veto on the competence of the Court of Justice to defend citizens against those same very state-captured courts.

So there it could have the opposite effect of what it's trying to achieve. And combined, I think this report risks putting an axe to the tree of judicial independence of the EU. I think this report also sometimes mixes criticism towards the working methods of the court with individual attacks on the French legal tradition and use of language, and could ultimately weaken the court and subjugate it to national courts that are captured by autocratic governments who are in breach with the EU's fundamental values. If we look at the past, we've seen that national leaders and the European Commission have failed to hold wannabe dictators to account with Article 7. The court then stepped in to guard the treaties in the way that it could.

You can argue that they made mistakes along the way, but the way to solve this is not to undermine the Court of Justice, but to give it more legitimacy. That's why I'm advocating in the opposite direction of the main direction this report is going in. The Court of Justice should have more capacity and be scrutinized with a clear mandate by becoming a real constitutional court of the European Union, including a stronger role in the Article 7 procedure, and we will put forward amendments that go into this direction. Thank you very much.

42:02 - 42:08

Sven Simon

Thank you, and the last speaker in the round of shadows for the ESN is Christine Anderson.

42:08 - 44:27

Christine Anderson

Yeah, thank you chair, dear Charlie and colleagues. First of all, I would like to thank the rapporteur for what I think an extremely thoughtful and well-balanced draft report. What strikes me most about this report is how remarkably straightforward it is. It is firmly rooted in the treaties and the relevant case law rather than institutional wishful thinking, that is refreshing indeed. The draft report clearly reaffirms the essential role of the Court of Justice in ensuring the uniform application of Union law and protecting the rights flowing from the treaty.

It also recognizes the importance of judicial independence and effective judicial protection under Article 19 of the treaties. These are fundamental principles on which there is broad agreement. At the same time, the report also reminds us of something equally important, that the Union is a union of conferred competencies, that the organization of justice remains primarily a national responsibility, and that judicial dialogue can only function on the basis of mutual respect. Again, these are not novel or controversial propositions. They simply reflect the treaties as they stand.

I also welcome the emphasis on transparency, methodological clarity and institutional accountability. These are not demands directed against the court. These are standards that every public institution that exercises constitutional authority should be expected to meet. Indeed, the greater an institution's constitutional role, the greater the importance of openness and public confidence. For all these reasons, I would be totally surprised if this report could not attract broad support, both in this committee and eventually in plenary.

This is not a report about ideology. It is a report about the constitutional framework of the Union as established by the treaties. Adopting it would be a measured contribution to strengthening confidence in our common legal order and a clear signal that this Parliament takes the rule of law seriously. Thank you so much.

44:27 - 44:41

Sven Simon

Thank you very much. So, now we have four members who would like to take the floor. The first is Bartłomiej Sienkiewicz, EPP Group.

44:41 - 49:25

Bartłomiej Sienkiewicz

Dziękuję, będę mówił po polsku. Absolutnie się zgadzam z panem przewodniczącym, że mamy prawo do tej inicjatywy własnej i parlament jest tym miejscem, w którym można przyjrzeć się aspektom pracy ETS. Tym bardziej, że zasada, która mówi, że o sądach albo dobrze, albo wcale, wcale nie służy zaufaniu do władzy sądowniczej. Więc nie oceniając całego dossier i tego materiału, chciałbym jednak poruszyć jedną kwestię, a mianowicie, żeby on miał sens, musi być wiarygodny, musi być starannie uzasadniony. Niestety znajduję w nim coś, co jest w radykalnej sprzeczności z tymi zasadami.

Otóż w punkcie AC trzecim czytamy, że trybunały konstytucyjne i sądy najwyższe w kilku państwach członkowskich wyraziły obawy dotyczące granic kompetencji Unii oraz zakresu uprawnień sądowych. Wymieniono w tym kontekście Sąd Najwyższy duński, Federalny Trybunał Konstytucyjny, francuską Radę Stanu. Ale wymieniono także polski Trybunał Konstytucyjny w sprawie K3 łamane przez 21. Otóż chciałbym zwrócić uwagę, że to wymienienie ma charakter insynuacyjny i jest jawnie sprzeczne z duchem, który przyświecał tej komisji. Otóż w czasie, kiedy był wydawany ten wyrok polskiego Trybunału Konstytucyjnego, przewodnicząca tego trybunału wydawała kolację dla przewodniczącego Prawa i Sprawiedliwości Jarosława Kaczyńskiego, który publicznie nazywał ją swoim odkryciem towarzyskim.

Otóż ten Trybunał Konstytucyjny wtedy, w tym czasie, miał dwa wyroki Europejskiego Trybunału Praw Człowieka, jeden ETS-u, który potwierdzał, że został nieprawidłowo obsadzony, a tym samym nie może pełnić funkcji niezależnego organu sądowego.

Otóż wtrącenie tego faktu na poparcie tezy o obawach dotyczących granic kompetencji Unii, otóż ten case polski rzuca cień na intencje całego raportu. Jest insynuacyjny, nieprawdziwy, ponieważ różnica między francuską Radą Stanu czy niemieckim Trybunałem Konstytucyjnym polega na tym, że ani prezydent Francji, ani kanclerz Niemiec nie utrzymywał prywatnych stosunków z szefami tych sądów i nie mówił o nich jako o swoim odkryciu towarzyskim. One były w pełni legalne. Nikt nie podważał konstytucyjności Karlsruhe, podobnie jak francuskiej Rady Stanu. Tymczasem ten case jest moim zdaniem nie do przyjęcia, jeśli miałby być ilustracją tezy, którą chce udowodnić.

Mówię to z bólem, ponieważ tak naprawdę podważa to wiarygodność nie tylko i wyłącznie tego punktu, ale także intencje, jakie za tym dokumentem stoją. Myślę, że nie będzie łatwo osiągnąć między grupami politycznymi, ale także i wewnątrz grup politycznych zgody i jednomyślności w tej sprawie. Mówię to z bólem, ponieważ tak jak powiedziałem, uważam, że mówienie o sądach dobrze albo wcale nie jest tym, co przywraca sądom wiarygodność. I uważam, że głos w tym parlamencie w tej sprawie jest konieczny, ale nie z takimi przykładami, nie z takimi wpadkami i nie z takimi insynuacjami.

49:25 - 49:30

Sven Simon

Thank you very much. Next speaker from the S&D, Krzysztof Śmiszek.

49:30 - 53:07

Krzysztof Śmiszek

Thank you, Mr. Chair, and I'm speaking not only as a shadow rapporteur of JURI opinion to the report, but also as a lawyer, as a Polish citizen. So I'm going to be a bit more undiplomatic than my colleague Bartłomiej Sienkiewicz, and allow me to start with expressing how not only surprised but shocked I am by the draft report presented today. The number of misconceptions expressed in the report on the constitutional setup of the European Union, combined with the attempt to politicize the Court of Justice, is truly concerning. The protection of our institutional prerogatives is one of the major constitutional contributions to the EU legal order made by the Court of Justice. The very court that established that the consultation of the Parliament is an essential procedural requirement, the very court that protected the European Parliament's powers and continuously ensures that the balance of institutional prerogatives is respected.

As a former Polish deputy justice minister who had to deal with the untangling of the constitutional crisis in Poland back in 2024, I know firsthand how difficult it is to restore the rule of law. My concern is that if we implemented all of the views of this report, I would need to witness this process again, but just on the European level. The fact that the report refuses to recognize the principle of the primacy of the EU law, using the judgment before mentioned by my colleague Bartłomiej Sienkiewicz of the illegitimate Polish Constitutional Court, is for me personally the most shocking.

At that time, the unconstitutional selection of its judges and the changes to the organization of the Polish tribunal were one of the core reasons for the Commission and one year later by this Parliament to trigger the Article 7 against Poland, which means that there was a clear risk of a serious breach of the rule of law in my country. Our organization wasn't the only one establishing this. The European Court of Human Rights described the reforms of the Polish Constitutional Tribunal as interference with the judicial body aimed at incapacitating the tribunal in the exercise of its adjudicatory function in the application and interpretation of the convention and other international treaties. Similar views were presented by the UN Special Rapporteur on the independence of judges and lawyers in 2018. So, the primacy of the EU law was established by the judgments of the court going back all the way to the 1964 when there were only six member states of the European Economic Community.

It is discrediting to say that it is a consolidation of powers and using the decisions of illegitimate courts to substantiate such critique is a manifest of error in the conceptualization of the Union's constitutional order. Our group will most certainly ensure to address all these irregularities with the relevant amendments. Thank you so much.

53:07 - 53:17

Sven Simon

Thank you. The next speaker, EPP group, Michał Wawrykiewicz.

53:17 - 58:03

Michał Wawrykiewicz

Thank you, Chair. I fully share the point of view and the statements of my colleagues Bartłomiej Sienkiewicz and Krzysztof Śmiszek. And I am presenting my statement as a shadow rapporteur of the opinion of JURI Committee, but also as a lawyer who had a chance to represent Polish judges in dozens of the cases, I mean these judges who were repressed by the state, by the government of Law and Justice in Poland between 2015 and 2023. So I had a chance to represent them, also justices of the Supreme Court, in front of the Court of Justice in the case which is called AK. This is case number C-585/18, 624/18, and 625/18.

This is the most important case and the verdict in this case says very clearly that of course the competence of the organization of justice lies within the competence of the member states, but under one condition, only one condition: that the justice system and the courts are independent and impartial. This is the most important issue. So if the courts in the European Union, in one of the member states of the European Union, are not independent and impartial and established by law, then the competence of the Court of Justice of the European Union is in place. And that is the moment when the Court of Justice of the European Union can intervene. And it was the case in Polish cases dozens of times.

It means the Court of Justice and also European Court of Human Rights. So in that view, I would like to focus your attention on point 10 of the draft report, which says that Article 267, which describes the procedure of the questions, legal questions from the courts in member states to the Court of Justice, is not the mechanism of the protection of the judicial independence.

On the contrary, it is one of the best mechanism, one of the best tools which was used by Polish judges, by Polish court during the the biggest constitutional crisis in Europe between 2015 and 2016. And so many cases went on the level of the European Union because of that mechanism, because of Article 267. And the case which I mentioned, the case AK, was based on the question which was raised by the Polish Supreme Court to the Court of Justice of the European Union. And because of that question, because of that procedure, we had the standard of the independence of judiciary described very precisely by the Court of Justice of the European Union. This is one point.

And the second and the last point is about the the court, the Constitutional Court in Poland, which was as Bartłomiej Sienkiewicz mentioned, is in point AC3 as the basis of the statement of of this report, which is not only about ethics and the behavior of the president of the the Constitutional Court at that time meeting with the boss of the main governing party at the dinner, but it is also about law. Because this body, this Constitutional Court since that time is not the independent and impartial court based on law. This is what European Court of Human Rights precisely said in the verdict of 6th of May 2021 in the case Xero Flor versus Poland. And this is also what the Court of Justice of the European Union very precisely described in several cases. And this is what also Polish Supreme Court said in the several judgments in September 2021.

So we cannot accept this wording of of the report. Thank you.

58:03 - 58:12

Sven Simon

Then for this round the last speaker from S&D, Vytenis Povilas Andriukaitis.

58:12 - 01:02:03

Vytenis Povilas Andriukaitis

Dėkoju, gerbiamas pirmininke. Kalbėsiu lietuviškai, nes manau, kad kaip kolegos kalbėjo lenkiškai, turėčiau teisę išsakyti kai kurias savo samprotavimus matydamas šitą tekstą. Galiu pasakyti, kad teko būti Europos konvento nariu ir teko rengti konstituciją, sutartį įsteigiančią konstituciją Europai. Teko daugelyje atvejų diskutuoti dalykus susijusius su esminiais Europos Sąjungos kūrimo teisiniais konstituciniais aspektais. Be to, teko būti vienam iš Lietuvos Respublikos Konstitucijos autorių.

Ir žvelgdamas dabar į šį tekstą, užduodu sau klausimą. Netgi galėčiau pasakyti, kad štai penktas punktas, šeštas, septintas, aštuntas ir dešimtas punktai. Jie skamba labai, sakyčiau, sofistiškai įdomiai. Aš sakau, kas gi gali abejoti, kad Europos Sąjungos struktūra remiasi conferral principu? Nieks negali abejoti.

Tas tas yra pamatinis, pamatinis Europos Sąjungos šalių narių, kaip sakyt, apsisprendimo reikalas perleist dalį kompetencijų. Tačiau surašytos punktas penktas, šeštas, aštuntas, septintas ir dešimtas. Surašyti labai įdomiai su milžiniška pastangom parodyt, kad žinot, jie iš anksto yra pažeisti.

Čia net labai lengva perskaityti tam tikrą insinuacijų rinkinį. Aš nemanau, kad raporto tikslas būtent yra tai, juo labiau, kad mes turim visi turbūt suvokti, kad mes irgi turim savo ribotas kompetencijas kaip Europos Parlamentas. Mes negalim peržengti savo kompetencijų, kurios taip pat nustatytos Lisabonos sutarty. Akivaizdu, kad greičiausiai čia yra politinis kontekstas. Tas politinis kontekstas jis matomas per daugelį politinių debatų, tam tikrų politinių srovių, jūs jo negalit nuneigti.

Net ir čia mes puikiai matome, kad be konstitucinio neutralumo, be sąrangos neutralumo, be diskusijų apie tai, kas gi kokia ta konstitucinė ir koks santykis Europos Teisingumo Teismo su šalių narių aukščiausiais teismais ir su konstituciniais teismais, šitam raporte tokios analizės tai nėra. Čia yra visiškai aiškus tezių rinkinys, kuris nurodo, kad teismas yra jau pažeidęs visa tai. Kaip sakyt, iš kepurės iš anksto maždaug slenka insinuacijų rinkiniai, todėl aš esu iš esmės taip pritrenktas skaitydamas tokį raportą. Žinoma, man kaip tekusiam dirbti Europos Komisijoj komisarų, kaip tekusiam dirbti prie konstitucinių pataisų naujos sutarties, man tiesiog kelia tokį keistą tokį tiesiog atvirą klausimą. O gal iš tikro yra atvirai noras truputį demontuoti Europos Teisingumo Teismą?

Tiesiog atskleisti, kokia gi čia intencija to raporto. Todėl manau, kad reikia nutarti, ar iš tiesų jis atitinka Europos Parlamento mandatą ir atitinka aplamai Lisabonos sutarties kertinius akmenis ir aplamai, ar iš tiesų mes čia užsiimam politiniu žaidimu demontuoti Europos Teisingumo Teismą.

01:02:03 - 01:03:50

Sven Simon

Would you like to react now or shall we first listen to our experts? First the experts. Okay. Then we will hear from experts who have had the experience of dealing with the application of EU law at the highest judicial level, whether national or at the Court of Justice of the European Union. Their ideas and suggestions are very much welcome as it is our intention to have the broadest possible view on this subject and we intentionally invited practitioners this time.

So I have the honor and pleasure to welcome the experts, namely Dame Eleanor Sharpston, Professor Peter Michael Huber and Professor Lucia Serena Rossi is joining us online remotely. Dame Eleanor Sharpston is a distinguished visiting fellow at the University of Cambridge in the United Kingdom and a former Advocate General at the Court of Justice of the European Union. I think you served for 14 years. Professor Lucia Serena Rossi teaches at the University of Bologna in Italy. She was a judge at the Court of Justice of the European Union, I think for six years.

And Peter Michael Huber is a full professor at Ludwig Maximilian University of Munich. He served for 12 years as a justice of the Federal Constitutional Court in Germany and prior to that as Minister of the Interior of the Free State of Thuringia. Dame Eleanor Sharpston, I give you the floor, approximately 10 minutes, but take the time you need.

01:03:50 - 01:22:58

Eleanor Sharpston

Thank you very much, Mr. Chairman. Good afternoon, ladies and gentlemen. It is a pleasure and an honor to be invited to address the European Parliament. I want to start with some rather general statements, but which I think bear making. First of all, any sensible court knows that it can and should keep its working methods under evaluation and review.

And the Court of Justice of the European Union, in which I had the honor and privilege to serve as an Advocate General, does just that. During my time at the Court, I remember an almost continuing discussion of little points and of bigger points, of proposals, of suggestions, partly dealing with the workload, partly dealing with methods, seeing if we could be more efficient, if we could find a way with the resource envelope that we had of being more effective in our case handling so that the throughput was better without hampering the quality of the decisions that we handed down. Second comment: no court, I'm a little tempted to say no court, nobody making a decision, nobody, perhaps including this august Parliament, is immune from the possibility of making a mistake on a particular file. It does happen, you know. We're human beings.

We're not robots. And if there is a mistake and the case law moves a little too far in one direction, or the law of unforeseen consequences, you take a decision in a particular case and then the genie comes out of the bottle and you think, wait a minute, we didn't intend that, you find that you are in subsequent cases very carefully relaying that particular tile of the mosaic and making the mosaic floor a better fit. That is the nature of justice in the real world. I say that not just as somebody who's had an academic career of 30 years as an EU lawyer, but having been a practicing barrister and King's Counsel and then having worked at the Court. That is what law actually smells like on the block when you practice.

Third observation: any court can, I'm sure, make improvements. And when you start looking at what the improvements are you're going to make, then you do have to say, well, but if we want to make a change in this or in that, there are probably implications in terms of resources, in terms of manpower, in terms of timelines, to name the three most obvious factors in the equation. There are others.

So I think my starting point is, you know, yes, of course there are things to look at, and there should be things to look at, and the Court should not be immune from any scrutiny whatsoever. I very much agree with the Polish colleagues who were saying it should be possible to have other options other than say nothing at all or be complimentary. But there is a very, very old quotation: if it ain't broke, don't fix it. And so I would like to invite you to think about what are the real, obvious, glaring problems that need addressing? Perhaps I would like you to think: are those problems so real, so obvious, and so glaring that they require a sort of full-on assault on many, many areas of the Court's operation?

Because I have to say, I read the detailed draft report with great interest, but I wasn't left with the impression: my gosh, here are lots of things I never noticed about the Court, and I was blind for all those years that I was sitting in the building on the Kirchberg, but yes, of course we must now deal with all of this at once, at once. Now, the report takes aim at a wide range of targets, and some of them are what we tend to call the hardy perennials, the ones that turn up year after year after year. If you've been teaching EU law for a very long time, you've seen them year after year, and you've read the essays by the students and the PhD theses that look about whether there should be concurring and dissenting opinions rather than a single judgment, that discuss the question of language at the Court, the pre-eminence of French as the unofficial, the langue officieuse, certainly not the langue officielle, but it is the langue officieuse de la maison, and the impact that that has on the contribution of various members from different Member States and indeed on one's legal reasoning. And I will tell you from my practical experience of being an Advocate General at the Court, I mainly wrote in my mother tongue. I'm lucky to have English as my mother tongue, it's a wonderful vehicle for writing in.

That was my good fortune. But I did also write in French for the procédure préjudicielle d'urgence because there wasn't time to write in English and then wait for the translation into French. And because for historical reasons I inherited three cases which were being dealt with by my much-lamented colleague Dámaso Ruiz-Jarabo Colomer, I wrote three opinions in Spanish. I can promise you that I think differently in the three different languages. And I am sure that what I wrote in terms of the conclusion that I arrived at was the same conclusion, but I know that I structured it differently, I know that I thought about it differently, I know that I balanced things differently and weighed them up differently.

That's the way it is, my friends. The comic side was when I got to check the draft translations with the Spanish cases, I found that I was trying to align the Spanish, which was lengua original, español, with the draft French, which is what the Court was going to be working on, and the English, which everyone would assume was the original because it's the British Advocate General. And I spent one week on each of those opinions trying to get those texts to line up so that they actually said and felt like what I would say in those languages. Just to give you a feeling for the reality of it.

And of course, the methods of interpretation. Now, I mean, the court could do things differently. The court could move across to a different system, as has very well been observed by one of the shadow rapporteurs. We come from a union united in diversity. We tend to use our own court system as the natural reference point because it's the one we know best.

And our own court systems have different ways of making an omelette. They sort of end up with an omelette, but they don't make it the same way. Do you have to have dissenting and majority opinions? Do you have to have a collegiate view? Do you have to reason in a particular style?

Certainly, I would say in relation to teleological interpretation, for example, I don't think I can find many examples where the court only went for a teleological view. The court tends to look at the teleology, but it looks at the text and says that the teleology and the text match up. It looks at what the legislators, you, have put in the preamble paragraphs before you were writing the substantive provision, and it takes that as showing the legislative intent behind what was done. And all of it's put together. And the problem is, you know, if you actually did try to take a very British 'only the text matters, my friends', well, which text would you like to take?

If you're going to look for where the comma is, I once spent a half morning in the High Court in London arguing about one comma at the end of Article 29, subparagraph 6, third line, a comma. What was the significance? Well, move that to the context of European law. What are your chances, dear friends, what are your chances that you are going to find a comma in the same place in Article 29, para 6? The English text might have a couple of commas, the French text might have four, German text might have three.

Any possibility. You can't do it on the basis of saying 'I will not look at the teleology, I will only look at the text'. There is an excellent reason why the court has been using teleology for all these decades. If I look back over what the court has done through the development of EU law, and I'm very grateful for the reminders that were coming from Mr. Gozi of early case law, look at the collaboration with national courts, usually rather small national courts, a small provincial court in Italy which asked a question about whether it could disapply a constitutional statute. 'I don't have the power', said the national judge, 'I'm not the Corte Costituzionale'.

And they were told in Simmenthal, well, actually you can and do do that. Costa and ENEL, a tariff dispute on the run rate for electricity.

Van Gend en Loos, do individuals have rights from these treaties? I mean the whole story of EU law that we are so proud to tell is the story of the court taking the texts, gradually clothing them with life against the backdrop that the member states are, as we always have said, the Herren der Verträge, the masters of the treaties. And by the way, one can find examples of the court being bold. One can also find examples of the court being very respectful of member states. To mention that dreadful word Brexit, do you remember the Wightman case, ladies and gentlemen?

And that the institutions were arguing that once a member state had indicated that it wished to leave, it was stuck with that decision and it needed everyone's agreement in order to withdraw if it wanted to to withdraw that notice to leave. And the court leant over backwards to say no, no, no, I mean this is a decision by a sovereign state and unless and until you go to the end of the road and you really want to do it, you can change your mind. What is that if not respect for sovereign states? Also again picking up on comments made by shadow rapporteurs, the idea that there is an occasional tension between national constitutional courts and the Court of Justice is not to my mind intrinsically unhealthy. I seem to remember a pair of cases known by their nicknames of Solange I and Solange II from the Bundesverfassungsgericht, where the result of that was definitely enhanced protection for individual rights, for fundamental rights, because in the light of Solange I, the court saw what it needed to do and it gave the judgment in Hauer and then we had Solange II.

I I don't think tension is is automatically a problem and I would by the way say that there is a lot of gentle off-the-record quiet exchanges, discussions, reciprocal visits between the court in Luxembourg and the court in Strasbourg, between the court in Luxembourg and various national supreme courts. These contacts take place and these contacts are very helpful in terms of avoiding clashes, avoiding inadvertent difficulties. The more you talk with each other, the more there is dialogue, the better the chances that conflict will be avoided. I'm going to say in relation to the argument that of course the organisation of judicial bodies in a member state is the business of the member state, and yes of course it is, that the way the court has reasoned this is very like the way it has reasoned in other areas. I'm thinking I'm thinking back to Factortame as an example.

Everyone thought, well wait a minute, the rules on what flag a ship will fly are national rules. So what does that got to do with EU law? And the substance of Factortame is built around saying absolutely, it's a national law.

Of course it's a national law. But the point is you have to exercise that national competence in a way that is compatible with the basic freedoms of the single market. And there are various ways of behaving that is perfectly compatible. This is not stepping into your area and saying the flag has to be flown on a mast which is five foot high, one meter eighty high, perhaps a little taller would be better than five foot, let's make it one meter eighty, on a particular position on the ship. That's not what we're saying.

That's not what the court said in Factortame. It said you can have the rules, but you cannot use the rules and twist them in a way that cuts across basic single market freedoms. And I think you will find if you look carefully at what the court has done in relation, for example, to the doctrine of equivalence and effectiveness, the court has been pretty careful. It has said time after time that it is for national procedural law to provide the system of remedies through which you claim your rights under EU law, subject only to satisfying the test of equivalence and effectiveness. And you check.

But the the knee-jerk reaction is not to go and create a whole new set of remedies. It's not that way up. So, you know, obviously your work is is something that I look at respectfully from the outside and I know that you are looking for evidence. As regards, for example, the use of Advocate General's opinions. Obviously things changed when it no longer became necessary to have an opinion in every case.

There were some cases where truthfully you didn't need an opinion. The reporting judge knew perfectly well what the Advocate General was going to say. If it was an open and shut infringement procedure, and putting an opinion in there merely made the machine run slower and added to the translation time. I haven't seen any strong data to suggest that complex cases with novel and difficult points of law aren't getting AG's opinions. They are.

I'm going there's a lot that one can say further. Please be careful about chipping away at the rule of law, because if you start dismantling what the court has said about that as a fundamental value and its importance to the European edifice, then we are in real trouble. I look forward to your questions later in this session. Thank you.

01:22:58 - 01:23:21

Sven Simon

Thank you very much. I agree this plaidoyer alone was already worth it to have the report, no, colleagues? So, als nächsten Redner haben wir jetzt Herrn Kollegen Professor Peter-Michael Huber.

01:23:21 - 01:41:01

Peter-Michael Huber

Thank you, Mr. Chairman, shall I speak in German or in English? Deutsch?

Okay. I would have done it in English too, but Deutsch ist mir natürlich lieber und es ist auch einfacher für mich. Ich kann Frau Scharpsen nicht widersprechen. Ich glaube aber, dass dieser schöne Satz, "if it ain't broke, don't fix it", vielleicht ein genaueres Hinsehen nicht ausschließt. Und wenn das Risiko besteht, dass es brechen wird, lohnt es sich, es sich genauer anzuschauen.

Das, was möglicherweise nicht funktioniert. Nach meinem Dafürhalten ist es keine Frage von gut oder böse, von schwarz oder weiß, sondern von vieler Schattierungen von grau, um nicht den amerikanischen Film zu zitieren, wo es letzten Endes darum geht, auch über den Text der Verträge hinaus die Realität einzufangen. Und ich will mal beginnen mit Artikel 2 des EU-Vertrags, den Werten und den Werten der Rechtsstaatlichkeit oder der Rule of Law und der Demokratie. Beides Werte, die der Gerichtshof seit seiner Entscheidung Associação Sindical dos Juízes Portugueses seit etwa sieben Jahren entfaltet hat, vor allem in den polnischen und ungarischen Fällen, aber auch mit Blick auf Deutschland. Die Autonomie der Bundesrepublik Deutschland über die Organisation ihres Gerichtssystems wurde beim Europäischen Haftbefehl korrigiert und der Gerichtshof hat da in eine seit 50 Jahren geführte politische Debatte eingegriffen.

Nicht schlimm, es ist eine Bagatelle, aber immerhin. Es hat sozusagen der erste praktische Anwendungsfall ist eine Änderung des deutschen Strafprozessordnung gewesen. Mein erster Punkt ist, das, was die Rule of Law oder die Rechtsstaatlichkeit auf Deutsch durch den Gerichtshof judiziert von den Mitgliedstaaten verlangt, sollte auch für den Gerichtshof selber gelten. Artikel 2 EU-Vertrag ist von den Herren der Verträge ja in erster Linie als eine Beschreibung der Werte, auf denen die Union beruht, und erst in zweiter Linie als ein Maßstab für die Mitgliedstaaten formuliert worden. Die bisherige Entfaltung in der Rechtsprechung des Gerichtshofs fokussiert sich ausschließlich auf die Mitgliedstaaten.

Was das für die institutionelle, das institutionelle Gleichgewicht zwischen den Organen der Europäischen Union bedeutet, ist dagegen bisher kaum oder überhaupt nicht adressiert worden. Und so ähnlich ist es mit der Demokratie. Da hat der Gerichtshof dieses Jahr angefangen, sozusagen diesen Wert zu entfalten. Meine erste These ist, man sollte genau drauf gucken, dass die Maßstäbe, die man von den Mitgliedstaaten etwa auf die Unabhängigkeit ihrer Richter anlegt, auch auf europäischer Ebene eingehalten werden und dass da nicht mit zwei Standards gemessen wird. Auch sozusagen, was das Problem der Checks and Balances angeht.

Nach allgemeinem Verständnis gehört Checks and Balances zur Rechtsstaatlichkeit oder zur Rule of Law.

Das heißt, dass sich die Organe gegenseitig kontrollieren und begrenzen. Der Gerichtshof kontrolliert den Rat, das Parlament, die Kommission. Aber wer kontrolliert eigentlich den Gerichtshof? Theoretisch kann der Gesetzgeber eine Richtlinie oder eine Verordnung ändern. Praktisch ist das sehr selten der Fall und sehr schwierig der Fall und die ganze Wissenschaft spricht seit Jahrzehnten davon, dass es eine Versteinerung des Sekundärrechts gibt und wenn die Kommission nicht mitspielt, sei eine Korrektur der Rechtsprechung des Gerichtshofs kaum möglich, wenn der Gerichtshof wie bei Gleichbehandlungsfällen das auch noch mit der Charta primärrechtlich imprägniert.

Dann kann auch der einfache europäische Gesetzgeber daran nichts ändern, es müsste eine Vertragsänderung erfolgen. Ein erster wirklich wichtiger Punkt, über den man nachdenken müsste, ist, wie man aus dieser Petrifizierung des Sekundärrechts, das nach Zählungen von Herrn Hirsch und anderen etwa bei 150.000 Rechtsakten angelangt ist, wegkommt und das, was in den Mitgliedstaaten selbstverständlich ist, auch auf europäischer Ebene erlangt. Ich war zwölfeinhalb Jahre im zweiten Senat, zuständig auch für das Europarecht. Und ich kann nur sagen, der deutsche Gesetzgeber und auch der verfassungsändernde Gesetzgeber hat das Bundesverfassungsgericht nicht jede Woche, aber immer wieder korrigiert, wenn er mit bestimmten Entscheidungen unzufrieden gewesen ist. Das ist Ausdruck der Gewaltenteilung.

Ich finde, dass ein großes Problem ist, dass es diese Möglichkeit des Overruling des Gerichtshofs nicht gibt, was in allen Mitgliedstaaten gewährleistet ist. Das zweite ist die Unabhängigkeit der Richter. Da gibt es natürlich alle möglichen Modelle und die Möglichkeit, dass man für sechs Jahre gewählt oder bestimmt wird und man das beliebig weiterführen kann, so dass manche 40 Jahre am Gerichtshof verbringen, ist mit Blick auf die Unabhängigkeit sowohl gegenüber der Heimatregierung, die einen benennen muss, mit Blick auf den Rat und mit Blick auf sozusagen das gesamte politische Geschehen auch in Brüssel suboptimal, um es einmal vorsichtig auszudrücken. Es ist kein Zufall, dass man beim Europäischen Gerichtshof für Menschenrechte vor ein paar Jahren auf eine neunjährige nicht verlängerbare Periode umgeschwenkt ist. In Karlsruhe für das Bundesverfassungsgericht hat man das Anfang der 70er Jahre gemacht mit 12 Jahren, aber eben mit der Auflage und dem Gebot, nicht wieder benannt zu werden, um politische Empfänglichkeiten, politische Erpressungsversuche, Gefährdungen der Unabhängigkeit auszuschließen.

Und ehrlich gesagt, die Lebenserfahrung und auch meine persönliche Erfahrung anekdotischer Natur bei mehreren Neuberufungen oder Wiederbenennungen in Luxemburg zeigt mir, dass es da durchaus ein Risikopotenzial gibt.

Deswegen glaube ich, wäre die Frage, ob man über die unbegrenzte Wiederwahlmöglichkeit und die Dauer der Amtszeit nicht sozusagen anders verfahren sollte, ein Gegenstand, der sich nach der Überlegung sozusagen wert ist. Das ist Assignment of Cases. Ja, soweit Sie nicht Deutsche und Österreicher sind, haben Sie die Vergangenheit mit der NS-Diktatur und Ausnahmegerichten, na ja, in den kommunistischen Ländern ein bisschen, nicht gemacht. Und wir haben in Deutschland vielleicht eine besonders restriktive Art des gesetzlichen Richters und der Gewährleistung sozusagen der Zuständigkeit eines Richters ex ante, die nicht der gemeineuropäische Standard sein kann. Aber das, was jetzt vor zwei Jahren eingeführt worden ist, der Präsident des Gerichtshofs bei Vorabentscheidungsverfahren nach eigenem Ermessen darüber entscheidet, ob bestimmte Fälle in vier Feldern vor dem General Court entschieden werden oder doch vom Gerichtshof, also die instanzielle Zuständigkeit abhängig gemacht wird von einem Ermessensentscheidung des Präsidenten, scheint mir problematisch zu sein.

Das Parlament hat sich, wenn ich mich richtig erinnere, mit dieser Frage ja auch befasst, bevor der Verordnung zugestimmt wurde. Man muss nicht das gesamte europäische Rechtssystem mit dem Bade ausschütten, aber diese Frage finde ich, die finden Sie in keinem anderen Mitgliedstaat Europas. Und das würde vom Europäischen Gerichtshof, so meine Wette, beanstandet, wenn es in Rumänien, Dänemark oder sonst irgendwo stattfinden würde. Die Macht des Präsidenten, bestimmte Fälle zuzuweisen, ist natürlich oder kann auch eine tendenzielle Vorentscheidung in der Sache sein. Ich bin da ein gebranntes Kind, ich habe die beiden Vorlagebeschlüsse in Sachen Gauweiler und Weiß für das Bundesverfassungsgericht konzipiert.

Und wenn wir jetzt einen Abend Zeit hätten, würde ich Ihnen erklären können, wie die Auswahl des dänischen Kollegen Larsson sich auch auf das Ergebnis der Entscheidungen ausgewirkt hat, abgesehen davon, dass Dänemark nicht Mitglied der Währungsunion ist und der Umstand, dass jemand, der außerhalb der Währungsunion stand, den Entscheidungsentwurf fabriziert hat, auch hinterfragungsbedürftig oder hinterfragbar ist. Der zweite Aspekt ist die demokratische Legitimation, auf die ich noch gerne eingehen möchte. Demokratische Legitimation brauchen auch Richter, weil sie ja Gewalt ausüben, deswegen heißt es auch die dritte Gewalt. Und die ist nicht en quelque façon nulle, sondern die kann ganz gewaltige Effekte haben. Normalerweise wird die demokratische Legitimation durch die Bindung an Recht und Gesetz sichergestellt.

Wenn das Gesetz aber so vage formuliert ist, in 24 Amtssprachen formuliert ist, man sich selber auch noch als Engine of the Integration versteht, dann ist das, was die Masters of the Treaties eigentlich wollten, jedenfalls nicht so hundertprozentig sichergestellt.

Wenn Sie das Prinzip der Einzelermächtigung, das Principle of Conferral, sich vor Augen halten. Ich habe bei der Vorbereitung der Gauweiler-Entscheidung alle Entscheidungen des Gerichtshofs von 1951 bis 2016 durchgemustert und geschaut, in wie vielen Fällen der Gerichtshof gesagt hat, hier hat die EWG und später die EU keine Zuständigkeit. Nicht, hätte das Parlament beteiligt werden müssen, falsches Verfahren und so was, sondern es fehlt am, in Deutschland würden wir sagen, der Verbandskompetenz. Und da bin ich in 70 Jahren auf viereinhalb Fälle gekommen. Das Bundesverfassungsgericht, das ja eine vergleichbare Rolle zwischen dem Bund und den Ländern zu erfüllen hat, hat je nach Zählart 800 oder weit über 2000 Beanstandungen in derselben Zeit, weil auch das Bundesverfassungsgericht ist 1951 errichtet worden, gemacht.

Ein fairer Schiedsrichter müsste meines Erachtens die Grundsätze der begrenzten Einzelermächtigung, der Subsidiarität und der Verhältnismäßigkeit, das war ja auch der Streit in dem Weiss-Fall, plausibler, rationaler und härter anwenden, als das der Fall ist. Dabei kommt es mir gar nicht auf den einzelnen Fall an. Ich finde nur das Assessment in 70 Jahren viereinhalb Fälle oder dreieinhalb Fälle ist sozusagen zu wenig. Und deshalb, meine Zeit ist schon überschritten. Sie und der Rat werden, so wie die Dinge liegen, eine Korrektur des Europäischen Gerichtshofs und seiner Rechtsprechung sehr schwer hinbekommen.

Die einzige realistische Möglichkeit nach meiner Erfahrung ist, da bin ich ganz bei Frau Scharpsten, das Kooperationsverhältnis mit den nationalen Verfassungs- und Höchstgerichten. Bei Solange hat das funktioniert, wobei Solange I Auslöser für ein Vertragsverletzungsverfahren übrigens gewesen ist, was der Gerichtshof und die Kommission angestrengt haben, was aber wie nach PSPP oder Weiss auf der ersten Stufe dann wieder eingestellt wurde. Die Kooperation und sozusagen auch das Risiko, dass die Mitgliedstaaten dem Gerichtshof nicht folgen, scheint mir in der jetzigen Situation und in der institutionellen Ordnung der Europäischen Union die realistischste Art sozusagen für eine bessere Beachtung dieses Grundsatzes zu sorgen. Das impliziert natürlich auch, dass es zu Ultra-vires-Feststellungen oder Identitätsverstößen kommt, wenn die Kooperation vorher und die Diskussion vorher nicht erfolgreich war. Ich kann vielleicht aus dem Nähkästchen plaudern.

Im Vorfeld der Rechtssache Weiss hatten wir mit dem Gerichtshof mindestens achtmal zu tun. Der Präsident hat mich auch persönlich angerufen, mir gelobt, was das für eine grandiose Vorlage gewesen sei. Dass wir mit der Antwort nicht zufrieden waren, konnten Sie ja dann später feststellen. Ich glaube trotzdem braucht es diese Kooperation. Und diese Kooperation beschränkt sich nicht darin, nach Artikel 267 eine Frage zu stellen und der Gerichtshof antwortet, was er will.

Das war übrigens auch in beiden Fällen meine Erfahrung, dass wir auf die eigentlich gestellten Fragen keine wirkliche Antwort gekriegt haben. Und dass es sozusagen umgekehrt, wenn der Gerichtshof, wie das bei uns etwa im Fall Egenberger der Fall gewesen ist, Fragen behandelt, die an die nationale Verfassungsidentität gehen, auch bei den nationalen Verfassungsgerichten sozusagen sich kundig macht. In diesem Fall Egenberger, werden nicht alle von Ihnen kennen, ging es um Staat-Kirchen-Verhältnisse und die Frage, wie weit die Autonomie der evangelischen Kirche reicht. Das vorlegende Bundesarbeitsgericht hat dem Europäischen Gerichtshof etwas Falsches vorgetragen. Die Bundesregierung hat gesagt, das ist falsch, das entspricht nicht der Verfassungslage, aber der Gerichtshof hat sich davon nicht beeinträchtigen lassen.

Besser wäre es, es gäbe auch sozusagen eine umgekehrte Vorlage in solchen Fällen oder wenn Schlüsselfragen der Kompetenzordnung auf dem Spiel stehen. Meines Erachtens würde es Artikel 24 der Geschäftsordnung des Gerichtshofs heute schon zulassen, aber noch besser wäre es, man würde das in das Primärrecht aufnehmen. Vielen Dank.

01:41:01 - 01:41:27

Sven Simon

Thank you very much. Now I hope that we are connected to Italy, Professor Rossi. You have to press the speak button. Yes, I think we can hear you already. The floor is yours.

Welcome back again. Good to see you. No, it's not working yet. You must... yes, now it works. Yes, go on.

Go ahead. Yes, thank you.

01:41:27 - 01:58:08

Lucia Serena Rossi

Thank you very much for inviting me to this important event. This is a very important issue. There are many criticism against the court in this draft report. For instance, scholarship seems that all the scholarship is against the court. It is not.

This is just a trend of scholarship. There are many scholars that agree with the way in which the court defends the values of the Union or even think that in certain cases the court should do more. As to the relation, as for the relationships with the constitutional courts, I totally agree with Mr. President Huber. Yes, the cooperation among Court of Justice and constitutional court is absolutely important. Most of the constitutional courts, starting from the Italian one, hold the Court of Justice case law in high regard and consider that the nation constitution must be interpreted in accordance with that case law.

Of course, there have been clashes between constitutional court and the Court of Justice, but they were over specific areas. The solution has sometimes required the intervention of national parliaments or government. I think to the Weiss case. But today, clashes are of a different nature. They concern a systemic or general rejection of the basic and essential values that the member states have unanimously laid down in the Treaty of Lisbon.

Treaty of Lisbon has been approved by the national parliaments. So, those values are there because the states and the parliaments of the member states decided that those values are constitutional, they are the founding value. Article 2 says that the Union is founded on these values.

So, these are not just judicial clashes. They are an attempt by some Member States to evade, in the name of their national identity, to the most fundamental values of the Union. Those values are a condition for the EU membership. Now, teleological interpretation, ultra vires, it is true the Court of Justice uses teleological interpretation along with other interpretation, textual, contextual. I don't think that the European Parliament could say something about the use, the choice of the method.

The methods of interpretation are general principles of law. Under international law, you can find a list of those principles, even in the Vienna Convention on the interpretation of the treaty. So these are the usual instruments that are in the boîte à outils of the national, international and European judges. Now, what the European Parliament could do is to watch on the clarity of regulation, directive, of the EU law. For instance, when you write the whereas, the considérants in the EU legislation, you must know that the Court of Justice will use those whereas in order to interpret all the provisions of the act.

So if the provisions are not clear, if the provision risks to be incompatible with primary law, the Court also takes into account the whereas. So this is the teleological interpretation uses what you, the legislature, write into the acts. Of course, the Court uses also primary law. So, it is true that the case law on the rule of law and notably on judicial system has been innovative. But in every legal system, the law and its interpretation evolve to cope with changes in general circumstances.

With the Treaty of Lisbon, we have a new legal framework, which is a constitutional framework. And the situation in the EU has undeniably changed. The European Union has indeed been confronted with a backsliding on the rule of law that challenge the Union's values. Article 2 has come into play in the case law of the Court of Justice only in the last years because the breaches of values at systemic level are relatively recent. The European Parliament has always defended the values set out in Article 2 and the Court of Justice just tried to clarify the scope of this of these values.

The Court has recently explained that respect for the values is the condition for enjoying the status of membership, as well as the prerequisite for mutual trust between Member States. Those values express the common European identity. The report mentioned the principle of non-regression. This principle stems from Article 49 TEU. It means that Member States must respect the values of Article 2 not only at the time of accession, they must also continue to promote them after accession.

It seems logical, as simple as that. An idea that emerges at various point in this draft report is that a Member State could unilaterally derogate from the values of Article 2 in the name of their national identity, with no control by the Court of Justice.

This idea seems to ignore that Article 4, paragraph 2 TEU, before setting out respect for national identity, affirms the equality of member states before Union law. So, in the logic of Article 4, paragraph 2 TEU, the rule is that all member states must respect in the same way Union law, and this is uniform application. Only constitutional courts can define what their national identity is, but a derogation to the common founding value in the name of national identity can only be assessed by the Court of Justice. And this is why the Court of Justice in the recent case Commission versus Hungary said that Article 2 can only protect a view of the national identity which is consistent with the values enshrined in Article 2. This does not mean that the Court of Justice could use Article 2 to condemn whatever behavior of member states not aligning with the values of Article 2.

As clarified by the Court, the threshold for triggering Article 2 requires serious and systemic breaches. Then, there are many proposals that in this report that, for instance, about the that someone could in principle be accepted about the required modification of the treaties or primary law, at least, as someone cannot be accepted, I will go, I will see it later. But now, for instance, the constitutional, the dialogue between constitutional court and national and Court of Justice, national constitutional court. The best way, the best instrument is the preliminary rulings, which should be used more frequently by the constitutional courts. The draft report suggests the introduction of concurring opinions by constitutional court.

I have doubts about the feasibility, not, it's not a bad idea, but I have doubts first about the feasibility for reasons that do not depend on the ECJ. The amendment would be necessary not only to the regulation of procedure but also to the statute, statute of the Court of Justice, which is primary law. Article 40 of the statute only allows states to intervene, and only one representative can speak. I do not think, frankly speaking, that governments would be happy to have someone different from their own agent speaking before the court. Neither I'm sure that such an intervention could be made under the existing rules governing the different constitutional court.

Also, Mrs. Sharpston mentioned Advocate General. Widening the involvement of Advocate General. Yes, but it is again Article 20, paragraph 5 of the Court statute, which has been modified by the Treaty of Nice, that established the cases, so it would be necessary to modify the statute. If the idea is to have more Advocate General, they can be only 11, because Article 252 TFEU and the declaration number 19 interdict to increase the number of Advocate General exceeding 11.

So that would require a reform of the treaty. Attribution of preliminary rulings to the General Court. The relevant rules are clear, that can be modified. I can agree with the report that every judgment in cases where the court has reserved its decision must set out the reason for doing so. But I think that this is something that the court already does.

It can be stressed, of course. What I totally disagree with in this report is the idea that transparency should be fostered by weakening the secrecy of the court deliberation. In particular, I am firmly opposed to introduction of dissenting opinions. Why? Because differently from other courts, the Supreme, the American Supreme Court, the judges of the Court of Justice may be reappointed after the short term of office.

The term is only six years. It's very short. And member states want to have, governments want to have the opportunity every six years to confirm or to change the judge. This is, they are the lords of the treaty and they want to do so. But when you have such a short, such a short term, the risk is that whilst awaiting the reappointment, judges, if have can submit dissenting opinions in unwelcome judgments, could do that just to seek to gain favor with the, with the government.

So admitting dissenting opinions would expose judges to external pressure, would undermine the independence of judges. Today this does not happen because the judge is a part of a panel that deliberates in secret with no possibility to trace individual opinion. So this is why the secrecy of deliberation must be preserved. The court is a collegial body, there are no minority, majority, every point of the judgment is decided and discussed. So there is no a standard line of reasoning in some judges and a different one in other judges.

Each point of the judgment is discussed. At the end of, at the end, the whole judgment is, collects the solution that have reached consensus by the, the majority, but almost all the totality of the judges. Finally, I believe that in order to safeguard the proper functioning and independence of the court, it is essential that it be able to organize its internal work autonomously under the guide of the president, which is elected by the court itself. This is a principle that applies also to Supreme or Constitutional Court of many member states, such as Italy, France, Belgium and others. In particular, given the workload of the court, it would not make sense to lay down general and rigid rules in advance for assigning a case to one formation rather than another.

The reporting judge is appointed by the president, taking into account on a case-by-case basis both the individual's skills in specific areas, expertise, and the current case law upon that judge, which can change, of course. Once the reporting judge has been appointed, the allocation of case, of case to the three-judge chamber, the five-judge chamber, the Grand Chambre, the full session is not decided by the president.

It is decided by the weekly general meeting formed by the 27 judges and the 11 advocate general and the chancellor. The only rigid rule that really matters already exists and must be preserved. No member of the court can serve as a reporting judge or advocate general in a case concerning his or her own member state. As for the language, the working language, there are historical reasons for French because the Court of Justice was already the Carbon and Steel Community Court, 1952. UK acceded in 1972, 20 years later, so everything was in French.

I am aware that there is a lobby in press, for instance, from large American law firms, universities, to switch to English. Advocate general on their free choice can already draft their opinion in English, German, Spanish, Italian. Judges, however, need a single, one single working language, whatever it be, not two or more, because there is a collegial process with a continuous exchanges of notes, debates that cannot be delayed at every stage by interpretation in different languages. And the deliberations are secret, so interpreters cannot sit in the chamber of the deliberation. Rather, what really matters and should be improved is that judgments are translated in all the languages of the member states and that press release cover a wider number of case.

This is something that would increase transparency. So, to conclude, I think that adopting this report would weaken the Court of Justice without making it more reliable. A strong independent court is a guarantee for the unity of EU law and the respect for equality of member states and equality of citizens of the Union. So, it is of vital importance that European Parliament distinguish between what could be improved and what on the other hand must be defended and preserved because weakening the EU institution and the Court of Justice would be in my view a betrayal of the European history and of the European citizen. Thank you very much.

01:58:08 - 01:58:44

Sven Simon

Thank you very much. So, I think with that we have covered a broad range of expert opinions and legal opinions. Now we have, I have five speakers on my list, so that I would propose that as we are running out a little bit of time, that you mainly ask questions, maybe two minutes each member. I would also have two or three questions, but we start with Juan Fernando López Aguilar, who is our coordinator for the Socialists and Democrats.

01:58:44 - 02:01:18

Juan Fernando López Aguilar

Well, certainly being a member of the European Parliament, in particular this Constitutional Affairs Committee, is a learning experience. We've heard three lectures, which is not the usual thing, not the usual format. In parliamentary ways, we usually have very restrained timings, and that's the way I will address you the question. But first, be reassured that many of us actually are absolutely convinced that the European Union is a unique institution and the European Parliament is a unique institution within the European Union. Namely, the European Union is founded, structured, and framed by law, law deriving from its own institutions.

So it's a legal order of its own, and that legal order is binding for the member states. But the member states have not dissolved, have not ceased to exist.

You put it that way, the Herren der Verträge. Yes, they are the masters of the treaty, but they're bound by EU law. And the, the, the thing is that in lack of an army, in lack of law enforcement of its own, in lack of police officers, the only thing we might rely on is the European Court of Justice playing a truly constitutional role in every possible way. So the thing is that, first, be reassured that many of us are upholding the constitutional nature and the constitutional functions that the Court of Justice has played. But the thing is that, look into the future.

We have heard very interesting insights as to the institutional aspects that could be somehow reviewed. Some articles have been mentioned. Some particular details have been mentioned. But as to its role, considering first that the perspective of enlargement and second that there has, there is a very ambitious European agenda, agenda touching upon green transition, digital agenda, submitting to EU law as a regulatory power to non-state actors, which are actual global giants as is the technological platforms and the, the, the digital platforms, which is to be expected from the European Court of Justice in a foreseeable future, not refraining its function, but actually enlarging the scope of its constitutional role that has been played so constructively and positively so far. Thank you.

02:01:18 - 02:01:20

Sven Simon

Sandro Gozi.

02:01:20 - 02:03:04

Sandro Gozi

Thank you, and I'm really very impressed from the three presentations, so I warmly thank you and I congratulate you also for the clarity of your, of your, of your presentation. I would like only to emphasize two aspects and to have a comment and an answer from you. The first on scrutiny and the second of rule of law. Basically, in my, in my understanding that you made it very, very clear that, I mean, we got full power of scrutiny as also the member states as masters of the treaties and the high contracting parties. After all, have full control of the scrutiny because we can come back and revise and modify the jurisprudence of the Court of Justice through secondary law or we can also modify some fundamental principles of the function of the Court of Justice through treaty revision.

So this is, so I mean, there isn't a European Court of Justice which is acting today totally out of control and without possibility for the member state or for the institution to control and also to correct if anything must be corrected. So I would like to you to dwell about this specific point. And the second on rule of law, do you think that in the work we do, in the report we are working on, would be opportune, would be helpful to underline the role of the Court of Justice on the protection of rule of law, on the control of rule of law? There is something that we should clarify, that is something we should emphasize on the role of the European Court of Justice on the control and the respect of rule of law within the European Union. Thank you very much.

02:03:04 - 02:03:07

Sven Simon

Colleague Legerri, please.

02:03:07 - 02:05:47

Fabrice Leggeri

Thank you very much, I will speak in, in French. Je remercie les trois intervenants pour leur contribution très intéressante. J'ai une première question qui concerne, enfin une première thématique qui est la responsabilité des juges. Et c'est directement lié à la question de la légitimité démocratique, à la question de la transparence dans le fonctionnement des cours. Et ça m'amène une première question : est-ce que une grande partie des sujets qui nous occupent ici ne sont pas aussi liés au fait qu'il y a la crainte d'un gouvernement des juges ?

Je viens de France, c'est une critique extrêmement importante de l'existence d'un gouvernement des juges qui voudrait se substituer à la fois au législatif et à l'exécutif.

Est-ce que vous observez cela dans certains pays d'Europe et au niveau de l'Union européenne ? Cette question de de la démocratie et de la souveraineté m'amène quand même à faire une observation. L'Union européenne n'est pas un État fédéral. Nous ne sommes pas les États-Unis d'Amérique ou son équivalent en Europe. Est-ce que d'un point de vue juridique et institutionnel vous voyez donc là euh une différence ?

La cour constitutionnelle de nos États membres n'est pas simplement la cour constitutionnelle d'un des États-Unis des États-Unis d'Amérique. Une autre question est celle euh qui a été évoquée d'ailleurs par le professeur Huber qui qui me paraît très intéressante, c'est qu'en 70 ans d'existence de la de la Cour de justice de l'Union européenne, il n'y a que quatre cas dans lesquels elle a déclaré que l'Union européenne ou ce qui lui a précédé ce qui l'a précédé la la communauté économique européenne à l'époque, il n'y a que quatre cas dans lesquels euh il a été constaté qu'il n'y avait pas de compétence européenne alors que dans votre expérience de juge constitutionnel euh allemand, et c'est très intéressant parce que c'est un État fédéral, vous avez observé que en général le juge dans des États fédéraux euh accorde je dirais plus souvent euh le bénéfice aux aux entités fédérées. Et euh voilà, je voudrais savoir sur l'équilibre euh on parlait de l'article 2 et j'en terminerai par par là. Vous observiez Monsieur le professeur Huber que la Cour de justice de l'Union européenne n'observe pas euh vraiment l'équilibre de respect des valeurs par les institutions de l'Union. Pourquoi à votre avis et comment pourrait-on faire ?

Merci beaucoup.

02:05:47 - 02:05:48

Tomislav Sokol.

02:05:48 - 02:08:23

Tomislav Sokol

Thank you very much. Thank you for being with us today. Since we have a limited time, I'll go straight to the point. So first questions for Mrs. Sharpston. So you mentioned internal market, and internal market is the cornerstone of the European integration since the beginning, and the current Article 114 has been the main legal basis for adoption of European Union legislation.

And and one of the reasons for that obviously is that it requires a qualified majority in the Council and ordinary legislative procedure. And the Court has said in several instances that even even if there if something else is the main objective of the legislation, say public health, it's not important because it's enough to find some kind of link with internal market and then you can you can use internal market as the legal basis. Which is important because if in public so because if in public health you don't have a legal basis and you have in the internal market, even though your main objective is public health, so a limitation of tobacco advertising or something, you can use the basis for internal market and then and then adopt legislation much easier than than than if it was the opposite. So essentially so there has been a lot of talk about using the internal market legal basis as a way to bypass legal restrictions and limitations for adopting legislation in other areas like public health. So that's so can you comment on this?

So tobacco advertising 2 case, British American Tobacco, etc. Second very concrete question. We speak a lot about principle of subsidiarity. Has a piece of EU legislation ever been annulled for the violation of principle of subsidiarity? I think not, but if that's the case, so what is then the real meaning of this principle if it is not used in practice?

So my question is, and I would like a very concrete answer, which is the final instance, judicial instance to decide whether EU has violated its competencies or not? Is it the ECJ or is it the national constitutional court? Because we have the Solange 1 and 2 judgments which say that while it works it's fine, but then the if it doesn't work, who is the one to solve the problem in the end? Is it the national constitutional court or is it the ECJ? Thanks.

02:08:23 - 02:10:24

Marc Angel

Thank you very much, Chair, and thank you for the three excellent presentations. And as Dame Sharpston said, any court can make improvements, and yes, there's things to look at, but when you approach this in a constructive and balanced manner, such an exercise can actually lead to greater efficiency, stronger performance, and maybe a better outcome for all. But this report, I see no constructive approach, no evidence of positive intent, and frankly no respect for the European Court of Justice. What I do see is a clear ideological determination to weaken, to undermine, and also ultimately damage the guardian of EU law. And who benefits from a weakened European Court of Justice?

I believe it's those political forces who have little regard for our common European values and achievements, those who reject judicial scrutiny and resent the court's role in safeguarding principles such as non-discrimination and also fundamental rights. And I also think that this report erodes trust in one of our core institutions and also the trust between member states, and ultimately also risks undermining the functioning of the single market. So I come to my first question on the single market. I believe the authority of the European Court is indispensable to the functioning of the single market. So could the single market continue to function effectively if member states selectively complied with CJEU rulings?

And is a well-functioning and treaty-based European Court of Justice a precondition for legal certainty and market integration? My other question is on the member states' needs. The draft report under point nine mentions the needs of the member states. Do you think that the European Court of Justice has a duty to adapt its interpretation and application of the treaties to the constitutional and political needs of member states? Thank you very much.

02:10:24 - 02:13:12

Marieke Ehlers

Thank you very much, Chair, and I can only echo what my colleagues have said, that these were truly three very interesting presentations that we heard today. I would like to take the opportunity to quickly remind my colleague from S&D that we exactly have the separation of powers, that all three arms are subject to checks and balances, and also the judiciary is not above criticism. Then quickly in response to the three speakers, Professor Huber, thank you very much for a very interesting presentation. I agree with your analysis that it is quite striking that the court has had little to no judicial engagement with the question of subsidiarity and proportionality on a content level. Professor Rossi, you had a very strong position against publishing dissenting opinions, and you said that protecting the anonymity of the judges shields them from being influenced by the government, which then makes me seem that they are not as independent as we would make them out to be.

But it also shields them from any type of scrutiny or accountability. It also makes a difference whether the majority was a slim majority, so 50 plus one, or whether the court acted unanimously.

That makes a big decision. It is also valuable to be able to read dissenting opinions in my opinion. Think only of the Kosovo case where Judge Trindade had a whole range of interesting points that he made about the question of territorial integrity and whether that can be violated by the people or whether that is only applicable vis-à-vis states. So the value of dissenting opinions I don't think should be misjudged. Then Dame Sharpston, thank you very much for an engaging conversation.

You mentioned commas and I was laughing because in the British context I'm sure the comma was very intentional. The problem is that in the European Union the comma is not intentional. The law is badly drafted. It's the conclusion of a whole range of separate, no don't stop me please, a whole range of separate institutions having to reach a compromise. And so it's bad law, badly drafted law, and it is in my opinion often intentionally vague which leaves this huge room for interpretation.

My specific question is how do you respond to the criticism that the court has effectively expanded its own jurisdiction through interpretation rather than through treaty amendment? So what meaningful legal limits remain on the court's use of Article 19 and who determines when the court has crossed the line between safeguarding the rule of law and redefining the reallocation of constitutional competences between the Union and Member States? Thank you.

02:13:12 - 02:13:14

Sven Simon

Krzysztof Śmiszek.

02:13:14 - 02:14:56

Krzysztof Śmiszek

Thank you so much sir. Well, thank you for all the three interventions. It's always good to feel like a law student at a very good university once again. So thank you so much. I would like to hear the opinion of Madame Sharpston on one thing because when I read the report, the draft report, I've got this feeling that maybe accusation is a too strong word which is too strong, but there's this expression prepared by the author that the European Court of Justice is acquiring new competences to have a say on areas that are not covered by the European Union law.

And immediately European Convention on Human Rights comes to my mind. The European Convention on Human Rights was adopted more than 70 years ago, but still the text is being used for modern and current cases that the creators of the European Convention on Human Rights would never even think that this kind of cases can appear in front of the European Court of Human Rights. So of course the EU treaties are younger, but they too must address challenges that their drafters could scarcely have anticipated, from democratic backsliding to attacks on judicial independence. To what extent do you think the Court of Justice regards the treaties as living constitutional instrument? I mean living instrument is always used as a phrase of living instrument is always used when we are talking about European Convention.

So what is your opinion on that? Yeah, thank you so much.

02:14:56 - 02:14:59

Sven Simon

Csaba Molnár.

02:14:59 - 02:17:16

Csaba Bogdán

Thank you for your presentation. I raise a broader question for each one of you on the broader topic of today's discussion. For Professor Sharpston, where do you think the balance should be between the role of courts and the role of democratic decision making? How can courts remain strong without replacing political responsibility?

For Professor Huber, based on your experience as both constitutional judge and a politician, how can we better understand each other's constitutional logic before disagreements turn into constitutional conflicts? And for Professor Rossi, what is today the biggest obstacle to cooperation between national courts and the Court of Justice? Is it mainly a legal problem or is it a question of trust? Thank you. Three brief questions from my side.

Dame Sharpston, Peter Huber referred to the right to one's lawful judge, der gesetzliche Richter, which is of course deeply rooted in the German legal tradition. Of course, this concept is less familiar in some other European legal cultures, but is it not a central safeguard against abuse? I was always wondering if they would have that in the Polish legal tradition, whether it would have been less harmful than it was in the end. Peter Huber, die diese Sprachgeschichte, das treibt mich um aus zwei Gründen. Erstens, Dame Sharpston hat gerade gesagt, man denkt an das in einer anderen Sprache, das...

Oh, sorry, das gesamte, man denkt an das in einer anderen Sprache, das... Was ist das jetzt hier? Das gesamte, ja, die Rechtskultur hat ja eine starke Prägung und auch die Frage, haben wir eigentlich überhaupt genug hochqualifizierte Juristinnen und Juristen auch auf Mitarbeiterebene, die diese Sprache sprechen? Das ist doch offensichtlich nicht der Fall. Also deshalb ist das doch ein Problem an dieser Stelle.

Und Professor Rossi, was denken Sie zu Sondervoten? Was ist da Ihre Auffassung aus der Praxis? Jetzt Charlie Weimers und dann eine Runde der Experten.

02:17:16 - 02:21:29

Charlie Weimers

Thank you, Chair, dear colleagues, and thank you to our distinguished experts, Dame Eleanor Sharpston, Professor Huber, and Professor Rossi, for your contributions and for the time you've taken to engage with this report. I think today's discussion gives us useful material to consider as the work continues. I will reflect carefully on the points made. As you may know, and as the Chair mentioned, this report has already garnered some attention outside of this house. Different views are naturally expected and welcome on this sensitive topic.

Understandably, many have different political convictions regarding the trajectory of the EU, but perhaps we can all agree on the fact that the court must be held to the highest possible standards, especially so if it is to dictate the organization of justice in several or all member states. I think this needs to be a substantive report where criticism is taken seriously. Again, we're not questioning the existence of the court, its role, or its landmark judgments on areas that are of importance to the functioning of the Union and its market. We recognize, however, that a court exercising functions of such significance must meet certain requirements. That means transparency and doctrinal precision, among other things.

National courts are also essential for the implementation of Union law, so for Union law to function, there needs to be a healthy relationship between the Court of Justice and the member state courts. The court must therefore keep its working methods and relationships to national courts under review. And importantly, the court must not be immune from scrutiny. Naturally, we view the Court of Justice with a critical eye, that is our job.

But I think it is important here not to mix the words authority and legitimacy. The authority of the Court as established in the treaties is not being questioned. Legitimacy though is of the utmost importance. Legitimacy can only be developed from the confidence and trust of citizens and legal practitioners. It is therefore absolutely relevant for us to discuss the methods of interpretation that the Court uses.

It is also for us to discuss the power of the President of the Court, the transparency of the Court's internal procedures and other points of interest. Furthermore, one could touch upon the tenures of the Court's judges. If one is to guarantee independence, we certainly have to discuss whether we can make the Court's system for appointing judges look more like it does in some Member States, make the potential judges less reliant on their respective governments. That is especially so if we are to speak about a system with publishing dissenting and concurring opinions, as well as the secrecy of deliberations which the report discusses. On that note, I thank President Hubam and Professor Rossi for their statements on that topic, which was certainly interesting to listen to.

So, dear colleagues, the intention here is not to question the position of the Court in specific judgments, nor is it to question the primacy of EU law, and I would refer to recital B in this regard. We will all benefit from having an open debate on this topic, so therefore I look forward to the continuing discussion and once again I would like to thank the Chair and the Secretariat for organizing the hearing and all colleagues that took part of it and to the experts for taking the time to enlighten us. Thank you very much.

02:21:29 - 02:21:48

Sven Simon

So now I'd invite the experts to do one final round, five minutes each if you can, in the reversed order, starting with Professor Rossi, because unfortunately we were granted translation only until five past, but okay, then we go on in English. Professor Rossi.

02:21:48 - 02:28:16

Lucia Serena Rossi

Thank you very much. There are so many questions. Starting from Mr. Lopez Aguilar, it would be a very long answer, but the Court is tackling new problems, technological problems. There is an important case law, strand of case law on platforms and on GDPR, which will be used, I'm sure of that, even I don't sit any longer, in the cases of artificial intelligence when they will be brought to the Court of Justice. There were different questions about subsidiarity, lack of control on subsidiarity.

Well, first of all, I would recall that the Court of Justice give answers to questions. So there were few questions about subsidiarity, very few. Why? Because usually are institutions or some States challenging the subsidiarity issue. In most cases, once an act has been adopted, it has already incorporated all the pros and the cons and apparently there is no political will to bring issues of subsidiarity before the Court.

Neither the national parliaments do not use the subsidiarity control powers that they have, that the treaty. So subsidiarity is a very interesting question, very important principle, but the truth is that it doesn't arrive very frequently to the Court of Justice.

And I think that there were very, very few cases. Proportionality, on the contrary, is very controlled by the Court of Justice, and there has been a lot of cases with annulment or invalidity of EU acts for violating proportionality. Sometimes, when an act is invalidated, the subsidiarity question is not brought because there are more technical questions, and for instance, proportionality, for instance, incompatibility with primary law. This can be an explanation, but is not certainly the fault of the Court of Justice. About the expanding legal basis of internal market, this is again something that the legislators, the co-legislators allow.

And then, when the question is brought to the Court of Justice, the Court has developed many years ago, I think 10, 15 years ago, a very clear theory. The clear theory is the center of gravity. An act can pertain, be relevant to different matters, different fields of competence, but what matters is the center of gravity. This is the main competence attracts all the other competences, and this is the rule for establishing whether the legal base was correct or not. Mrs. Hübner, the Court of Justice does not vote.

This, I would need more time, but it is the consensus, like in the European Council. There are no votes. I just, if there is, this is very briefly. The reporting judge diffuses a proposal, draft proposal of the judgment. If there are many different, strongly different opinions from the other members of the chamber, there is a tour de table.

The tour de table is made before the final draft is made. Even the reporting judge may ask. If the reporting judge sees that there are, for instance, two different possible solutions, because we are lawyers, there are no infinite solutions of the case, but there must be more than one. And the reporting judge of the president of the formation asks a tour de table. It is in this case they vote.

The members vote, they decide, they speak once, they do not count, but everyone says, "I prefer this solution or the other." And then the judgment is written. At the moment of deliberation, there is no different opinion on the merit because it has already established before. So dissenting opinion would not make sense. There is no voting in the Court.

This is, and I insist that dissenting opinion, the lack, the absence of dissenting opinion protects the independence of the judge from interference, external pressure, pressure from governments, pressure from the scholarship, if you want. Judges decide as a collegium. Advocates General have individual opinions, judges no. And I think this is very important for preserving the independence. Mr. Bogdan, the biggest obstacle in the cooperation of constitutional court and the Court of Justice is, in my opinion, the fact that constitutional court do not use enough the instrument of preliminary rulings that allows to establish a direct dialogue with the Court of Justice.

And why is that? It's not mistrust. I think it is pride. This is... I probably miss some points.

The legitimacy, the issue of legitimacy. Mr. Weymans, yes, legitimacy for lawyers is that the EU legal, the treaties and in this way the court is legitimate. You probably speak of credibility, which is something else, but legally speaking it's not legitimacy.

02:28:16 - 02:28:26

Sven Simon

Thank you very much, Peter Huber, please.

02:28:26 - 02:39:14

Peter-Michael Huber

Okay, I start with the rapporteur and wanted to stress that the president of the court is also in comparison with other courts really powerful. And I have observed this at least 20 times when we had bilateral, trilateral meetings, how the hierarchy between the president of the Court of Justice and the ordinary judges is. In Karlsruhe you would never find something like this. The president of the Bundesverfassungsgericht is primus inter pares with no possibilities to influence beyond his arguments. Mr. Simon, you asked me the question about language.

You probably know that when the ECJ was established in 1951, Kutcher I think was the first president and the six member state judges asked themselves which language do we speak and they agreed on French. And this is how French became the working language of the ECJ. There is anecdotal evidence, vast anecdotal evidence that the level of dialogue and deliberation is not enhanced by the monopoly of French, sorry for saying this, and that is also detrimental for picking up suitable candidates from especially smaller countries. Against this backdrop, I think 21 years ago I founded with colleagues the Societas Iuris Publici Europaei, which has about 3,000 members in the meantime, academics from all over Europe. And in the annual meetings there are three languages, French, English and German, which are not translated.

And I think that this model might be better than the present one. Mr., sorry I don't know your name, the colleague on the panel, Bogdan, oh sorry, Mr. Bogdan, what can we do for better understanding? Well, talk to each other, I think is the appropriate way. And there are, Mr. Sharpston had mentioned that already, not thousands but several occasions when we talk to each other and with each other. As far as German courts are concerned, every year there's a bilateral meeting with the ECJ, at least once a year.

There is the so-called Sechsertreffen where the German-speaking supreme and constitutional courts meet with Strasbourg and Luxembourg. There are, there's the European Union of Constitutional Courts where the ECJ is an observer and where you meet them. And I'd say you meet them at least three times a year if you are in office. After the tried infringement procedure after Weiss or PSPP, there was an exchange of notes between the German government and the Commission. And this laid down in this, in these notes, or in this note, that there should be an annual meeting presided by the Commission of all the national constitutional and supreme courts with the ECJ and the European Court of Human Rights.

And I've participated twice at the first two meetings in this respect. I can only say I didn't feel alone. I had almost all member states on the side of our courts and our court. And some severe questions were put forward against Mr. Lenaerts, who was already in office at that time. I think the proper key, and this is I think impossible for Parliament to solve that, is the mind and the set of mind in which a court approaches this cooperation.

If your clandestine motivation is to become the constitutional court of Europe above all constitutional courts in the member states, you will stress the procedure of preliminary requests, but you won't engage in a real thorough dialogue. To give you one example, we've asked with the preliminary request in the case Gauweiler and then again because they didn't answer in 2015, this question in 2017 again. Doesn't the independence of the European Central Bank have consequences for the interpretation of their mandate? As they aren't democratically legitimized as normal administrations are, shouldn't it be the consequence, because according to German doctrine this would be the consequence, that you rather interpret their competences in a narrow way? I could have lived with any answer, but we didn't get, they just ignored this question.

And this was a key issue. You find neither in the Gauweiler nor in the Weiss case one sentence to this. I think some modesty and sincereness in the cooperation is required. Mr. Angel, the single market doesn't work without the ECJ, this is obvious. But I've also had to handle several times Article 114 Treaty of the Functioning of the European Union.

And I remember that in the case on the data protection in 2010, the court said, well, this, if you establish a new bureaucracy, this is only possible in an exceptional way and this couldn't, shouldn't be the rule. But if I look at the legislation of the EU at the moment, starting with the European Media Freedom Act and other things, everything is based on Article 114, also bureaucratic devices.

And I think either the jurisprudence isn't followed of the ECJ or they don't expect that it will be nullified. To Mr. Szopko, you probably know that we don't speak of primacy of EU law. In German, we speak of precedence of application of EU law, which according to our understanding is a more suitable term than primacy, which entails a hierarchy between Union law and national law. As according, I think, to all member states except the Netherlands, the starting point for European integration is the constitutionally accepted treaty and the law put through the national parliaments and the legitimation by national parliaments for European integration. It's not because Mrs. von der Leyen invaded Germany that we are member of the European Union, but because our parliament has decided we want to be member of the European Union.

But it's not the autonomy of the Union legal order, which the ECJ stipulates since Van Gend en Loos and Costa v ENEL, but it's the approval of the member states, which is not a mere German lunatic idea, but it's an idea shared as far as I can see it, and I've worked on this issue, by all other member states. I think we should find some solution to that, and my answer is, if the assessment of a case comes to the result that there's no empowerment in the treaties and that the court acts arbitrarily, it is obvious that according to our understanding of Union law based on the German law adopting the treaties, it is the task of the Federal Constitutional Court to say that this decision is not applicable in Germany. I think the contro-limiti concept is more or less the same, even if they haven't applied it. They threatened with the application in the Taricco case, but they didn't have to apply it. But this is the idea.

And while people think this is something like a religion, you either have to believe into Luxembourg or you believe into the constitutional courts. My assessment tells me, if you look, if I look in the treaties, I find at least 30 provisions that underline our concept. Also Brexit is an underlining of our concept, even if I regret it very deeply. And according to this concept, it's clear that the national court decides whether a decision is arbitrary or not. And in the PSPP case, the issue was they didn't balance at all and therefore couldn't be proportionality.

I'm at the end.

02:39:14 - 02:39:27

Sven Simon

Yes, double at the end.

Okay. No, but I mean, maybe a recommendation, my second book I wrote on the limits of the Constitutional Court in the European integration process, on that question you will find 100 pages. It's still on the market, available, you can buy it.

02:39:27 - 02:48:34

Eleanor Sharpston

Mr. Chairman, I've just put it on my Christmas list.

I will try to stick to a time and deal with the flood of questions, and I will fail egregiously, but let me try. Let's begin, if I may, with Mr. López Aguilar. It's really important that the court acts as an enforcer, because there aren't a lot of other enforcers around. It's really important that large actors, in particular, that we have so many large non-state actors whose economic power compared to that of the member states is actually quite frightening. It is really important they submit to EU law and that the court is there to say when they don't do that.

And for the individual citizen, it is important because the Commission has a discretion whether it brings a particular case before the court or not. The so many of the leading cases of EU law have come about because a citizen went to their national court and the national judge, being a wise national judge, made a reference under what was originally Article 177 and is now Article 267 TFEU. Mr. Gozi, you had questions about scrutiny and rule of law. And we, I agree with you, we don't have a Court of Justice that's wildly out of control and therefore needs to be hauled in. This was a bit what I meant when I said what are the screamingly large problems that we need to address.

I don't really see them. It would be very helpful, I think, if the Parliament were to deem it appropriate to encourage the court to emphasize the importance of the rule of law, because the rule of law should be in the DNA of every lawyer and unquestionably is the cement that holds together the bricks of our society. We never used to talk about it. We assumed it as a given. Oh yes, yawn, rule of law, now let's move on to something else.

Those days are past. The rule of law has been under attack and we have to defend our civilized society by upholding the rule of law. Absolutely, I agree with you. Mr. Sokol, you put a very straight question to me about using the single market qualified majority voting workaround. My colleague, whom it's very nice to see again, my colleague Serena Rossi, has already referred you to a case of the court.

It's the titanium dioxide case. And as she rightly recalled, that case sets as the test what is the center of gravity of a particular measure. That is what one is looking at. And that is the basis on which one should decide which treaty base can properly be used. Has a piece of EU legislation ever been annulled for violation of subsidiarity?

Well, first of all, there's a reason why that hasn't happened, which is that if you look in the recitals of the regulations, for example, that are examined, you will find somewhere a statement by the legislator saying, we've had a look at subsidiarity, by reason of the effects, this cannot be done at national level, it's having going to have an impact which transcends national boundaries, therefore it is appropriate to do this at EU level.

And I suspect that a number of people have read that and said to themselves, it's really likely that if the court says this is only going, you know, if the legislator has said that already, well the court is going to say we're not going to second guess the legislator. I can tell you free that there would have been a case about subsidiarity had I had the opposite side of the brief involved the metric martyr in the United Kingdom. This was the grocer, Mr. Steve Thoburn, who was selling bananas on a set of scales which only weighed in pounds and ounces, not in metric. Unfortunately, I was prosecuting him, or persecuting him, as the popular press said. Had I been defending him, I would have been pushing the national court for a reference, and I would have been saying this is a stupid piece of tidying up.

The man was selling bananas from an inland market out of bulk. This has got nothing to do with free movement of goods. This is a violation of subsidiarity and proportionality. I want a reference. I want this measure annulled.

And I think I would have given myself a sporting chance of getting that in Luxembourg. By the way, very close to that was the working time directive where subsidiarity was raised and where the court did annul the part of the directive which said that working time should include a Sunday on the basis that there was remarkably little evidence that working time on the Sunday was somehow better than working time on a different day of the week. Mr. Helmar Congel, absolutely the authority of the court is essential to the functioning of the single market. I was very struck when I started looking through what the casework of the court was by how uncontroversial so many of those single market cases are. I won't quite say who the hell cares, but the point is that you need a single ruling.

If you have a directive or a regulation on the flammability of fluffy toys, right, you need to have a ruling saying what that means, not different rulings in all the different member states. And, you know, the court doing that is simply doing a job producing glue holding the single market together. Your question, Mr. Chairman, about the gesetzlicher Richter, really important. Of course, actually within a system, within the system, there is a certain amount of that because once the reporting judge is nominated, that determines the chamber of three, which also determines the chamber of five, which also fills part of the membership of the grand chamber, and then the other members in the grand chamber are drawn from a gesetzlicher Richter list. So it's not fully gesetzlicher Richter, but it is quite close to that, which was very striking to a fully British-trained jurist where we don't have anything quite as tidy as that in how we do things.

A final answer on the issue of the role of the courts, the role of the democratic decision-maker, and living instruments. How many times have I looked at a measure in the area of freedom, security, and justice and said to myself, if only the legislator had done less compromising and had actually decided what they wanted and written it down. Because everyone came to Brussels with their red lines, and the hard, sharp edges, the definitions, the precision got rubbed off the draft. And when that has happened, you're looking at a grand chamber case five years down the line, and inevitably the court is going to have to take a decision. You can't decide this is ambiguous, right?

You might want to say this is ambiguous, but you can't decide that.

You have to select a meaning. And as you do that, inevitably you exclude other meanings which were part of the negotiation. Final comment on living instrument. As far as I'm concerned, all of EU law is a living instrument. The treaties are changed since the beginning.

The secondary legislation has different reiterations and changes significantly, the Dublin Regulation being one example among many. For me, that has been part of the absolute intellectual joy and privilege of spending my working life doing EU law. Thank you.

02:48:34 - 02:49:48

Sven Simon

So colleagues, thank you very much. I was really pleased to see so many members present. After this discussion, I believe it is worthwhile and worth every effort to at least try following a vigorous debate to bring back together what maybe has drifted apart in Europe. That must be our goal. And I think what really matters is that as committed democrats, we take time to reflect on this first exchange over the summer recess, always bearing in mind that the other side may after all have a point, and then try to come together again in the autumn.

Whether we will succeed is difficult to say today, but the attempt is worth make it. I'm very grateful to you that you have been here, as so many colleagues until the end. I'm very grateful to our experts in Italy and here present for your contribution to that discussion. And now you are all invited to a barbecue on the rooftop terrace of the Hessen Embassy in the Rue Montoyer 21. Have a good evening, a good summer break for those of you who I don't see again.

Thank you very much. The next meeting will be on 2nd September. This meeting is closed.