Eu Estimate Dehousse’S Cheerio Address To The Cjeu

Introduction past times Professors Alemanno & Pech

Readers of this weblog volition discovery below the English linguistic communication translation of Judge Franklin Dehousse’s farewell address, which he had hoped to give on the occasion of his divergence from the European Union General Court in conclusion calendar month having served on its bench since 7 Oct 2003.

In an apparent interruption with tradition, no world ceremony was organised for the departing European Union judges, in addition to an internal coming together was arranged instead (see this article published inward Le Jeudi on 22 September 2016). While regrettable, this is maybe non surprising. Indeed, Judge Dehousse has been with 1 of the most outspoken critics of the controversial reform of the EU’s courtroom system, which is at nowadays encapsulated inward Regulation here).

Dehousse’s assessment in addition to alternative recommendations are comprehensively laid out inward iii meticulously researched papers, which he published during the course of instruction of his judicial term:

- The Reform of the European Union Courts. The Need of a Management Approach, Egmont Paper 53, 2011, Dec 2011;

- The Reform of the European Union Courts (II). Abandoning the Management Approach past times Doubling the General Court, Egmont Paper 83, March 2016

- The Reform of the European Union Courts (III). The Brilliant Alternative Approach of the European Court of Human Rights, Egmont Paper 86, September 2016

Readers may also discovery of involvement his newspaper dedicated to the Unified Court on Patents, published inward 2013 (Egmont Paper 60), which explores inter alia the touching on of the creation of a novel European patent courtroom on the EU’s courtroom system.

The address below, which Judge Dehousse kindly authorised us to set out on this blog, contains many valuable insights into the internal workings of the European Union courts and, at times, the testing human relationship betwixt its (then) iii constitutive judicial entities, peculiarly with abide by to the controversial doubling inward size of the General Court, in addition to the recent dissolution of the Civil Service Tribunal. His address also offers just about audio advice on how whatever structural reform of the EU’s courtroom scheme ought to live conducted inward the future. Last but non least, the address explains how the CJEU should seek to ameliorate care in addition to comport itself, failing which its ascendance may live fatally undermined, with potential negative consequences on the legitimacy of the European Union equally a whole. As such, this farewell address undeniably deserves, inward our view, to live made easily accessible to European Union scholars in addition to interested readers. It is our pleasance to part it with yous via this blog.

Alberto Alemanno, Professor of Law, Jean Monnet Chair of European Union Law in addition to Risk Regulation at HEC Paris in addition to Global Professor of Law, New York University School of Law (Twitter: @alemannoEU)

Laurent Pech, Professor of Law, Jean Monnet Chair of European Union Public Law in addition to Head of the Law in addition to Politics Department at Middlesex University London (Twitter: @ProfPech)

Judge Dehousse’s Farewell Address to the Court of Justice of the European Union

Ladies in addition to gentlemen,

Dear colleagues, 

To me, whatever holder of world business office must e'er introduce a study at the destination of her or his function. This seems all the to a greater extent than necessary than those years were sometimes fraught with conflict. It must live acknowledged honestly inward an Institution whose mission is to ensure the transparency of all other Institutions.

When I arrived hither xiii years ago, this business office was my 7th profession in addition to my 4th European Institution, afterward the Parliament, the Commission, in addition to the Council. European affairs had been at the centre of my multiple activities, whether inward Earth or private sector, at the national or international level, inward legal circles or inward the media. I therefore arrived with much curiosity in addition to enthusiasm. To give away the plot at once, my curiosity has been steadily increasing over the years though, inward many respects, my enthusiasm has been declining.

During the firstly iii years, I built a practiced team, which is absolutely essential here. I learned what I ignored. And nosotros eliminated a huge backlog: a stock of to a greater extent than than 100 cases initially. After that, I wondered how I could soundless aid the Institution. Thanks to my previous experience, I could plainly assist other cabinets with backlog, which was done. After that, according to Adam Smith in addition to Ricardo, I searched for my comparative advantage. Management, ICT, inter-institutional relations, in addition to strategy seemed to live rather rare talents here. I therefore invested inward these domains.  

On 1 hand, my initiatives focused on the direction of the General Court, so inward large trouble. For me, having followed many corporate restructurings, this required firstly a ameliorate evaluation of the production of the cabinets, in addition to its production units. Moreover, earlier asking for whatever additional means, it seemed essential for the credibility of the Institution to exhibit that it had exhausted all internal sources of productivity. To this end, I harassed the authorities to constitute the firstly serious statistics on the backlog in addition to its causes. This included concepts such equally the infamous “PPPU” (the “productivity per personnel unit”), or the threatening “delays columns” (adding all delays for all cases) (for to a greater extent than comments on this, consider my firstly study TEPSA / Egmont inward 2011). Originally, all this was non pop at all. Often afterward long in addition to painful discussions, these measures were however taken, to the laurels of my colleagues. In my humble opinion, they played a vital role inward the elimination of the backlog since 2011 - in addition to without whatever additional resources. 

On the other hand, my initiatives focused on the direction of the Institution. There, almost immediately, the problems started. Quickly the local leaders saw my initiatives equally interferences, in addition to fifty-fifty usurpations. Without commenting on all the episodes of this long saga, 4 at to the lowest degree deserve a brief comment.

First, inward 2007, just earlier the signing of the Treaty of Lisbon, just about of us learned that the President of the Court had sent a missive of the alphabet to Council inward club to inquire for a serial of changes, presented equally essentially formal, inward the novel Lisbon Treaty. After reading, these changes on the reverse appeared quite essential. Basically, they aimed for a large exchange of the Court to the Institution inward diverse provisions.

Everyone, of course, has personal sensitivities. Mine were certainly accentuated past times my previous experiences inward treaty revisions. For me, everything inward this episode was shocking. These were non mere formal changes, but essential amendments. They did non outcome from whatever official seat taken past times the Court of Justice. They had no detailed motivation. There had been absolutely no official information within the Institution, to Earth or to the Member States, though they remain the guardians of the treaties. And, finally, these provisions were non improving the adaptability of the Treaties. On the contrary, they would withdraw hold imposed to a greater extent than treaty revisions inward the future. This largely destroyed my trust inward the Institution’s management.

Secondly, information technologies (IT) became just about other conflict zone. From the beginning, this Institution had seemed to endure from a strong occupation inward this area. Like many other institutions I withdraw hold known, it had decided information technology evolution inward silos, uncoordinated from 1 another. However, dissimilar many others, it had never corrected this defect. For years, I tried to convince the people inward accuse inward the information technology commission of the demand for a to a greater extent than global scheme of management. Though just about understood that, it was impossible. H5N1 senior collaborator of the Court’s President constantly imposed his personal vision, inward defiance of all others. Consequently, the Institution went on implementing simultaneously different in addition to uncoordinated strategies. For example, iii different internal communication systems were developed, without whatever study of possible synergies betwixt them. Later, iii different reference systems were simultaneously used for the jurisprudence.

In the holler of hierarchy, this nonsense was maintained for many years. The Institution had non fifty-fifty a full general conception of its information technology systems until 2010! The “leaders” needed a one-half IT-crash to get down to consider the demand of one. Though the introduce managers assay at nowadays to improve the situation, the legacy costs are extremely heavy, in addition to the scheme is hardly optimal. As all experimented users know, fifty-fifty the inquiry inward jurisprudence encounters substantial problems.

With just about management officials, nosotros withdraw hold tried to halt this drift. Finally, afterward many debates, inward 2010, the information technology commission imposed a comprehensive analysis of the existing scheme earlier whatever novel spending. Alas, the cabinet of the Court’s President had but the minutes of the commission modified, despite the formal opposition of the Court’s registrar. This was my 2d shock. The adjacent decisions were but moved to a hugger-mugger meeting. Meanwhile, the information technology commission was soundless defining its ain strategy, until finally, the information technology commission was but abolished.

This saga soundless leaves me startled. The suppression of the commission because simplistic instructions from inward a higher identify are debated reflects a really limited sense of debate. To attain this spell information technology becomes absolutely key for all activity reflects a swell managerial myopia. Finally, the episode shows the sometimes surreal graphic symbol of an Institution where judges withdraw hold apparently fourth dimension to think most the choice of plant of art, but non of information technology solutions.

Third came inward 2011 the legislative proposal to create novel judges to the Tribunal. Let’s brand a long story short. From the beginning, my firstly objective was to defend, equally required past times the Treaties, an opened upward in addition to transparent process. However, the physical care for degenerated. The transmission of diverse General Court’s positions to Parliament in addition to Council was blocked. There was absolutely no touching on assessment or consultation process. As the press revealed, an unauthorized negotiation took identify with 1 regime only, in addition to without the noesis of the 27 other Member States. Questionable pieces of information were sent to Parliament in addition to Council inward an unsigned document, undated in addition to unnumbered. (One suspects that if these pieces were so trustworthy 1 would withdraw hold found someone to sign them inward an Institution of 2,000 people.) Other secret letters inward the Institution’s holler popped upward inward the press. To these problems 1 must soundless add together a highly questionable ethical physical care for opened against 1 of my colleagues who had provided accurate judicial statistics at the EP rapporteur’s request. All this leading to a manifestly disproportionate doubling of the General Court, against its ain repeated analyses from 2010 to 2014.

Again, this saga soundless leaves me speechless. Although I withdraw hold seen inward my career dozens of legislative procedures, that I had never seen. These events withdraw hold convinced me to set out accurate in addition to documented reports, to avoid their repetition inward the future. (See the 2 reports TEPSA / Egmont 2016).

Fourth came the curious accelerated creation of high administrative positions inward the terminal stage of 1 President’s cabinet. Apart from other considerations, creating really rapidly such a position, nether the exclusive impulse of the Court’s President, to care a service of 4 people, without whatever full general analysis of the services’ organization, nor whatever written seat from the Court’s registrar (who is also responsible for all outlays), in addition to based on vague projects (of which almost none were implemented thereafter) seemed to me strongly below the standards of practiced administration.

Many other topics could live mentioned, such equally the specialization of the General Court, or the assignment of cases within it, both imposed past times external interventions (something incredible for a judge); or the mightiness of the Courts’ Presidents to pick out fundamental decisions for the external representation without whatever preliminary combat with members; the distribution of resources betwixt the registries; the questionable nature of an external activity; the exercise of drivers; the rights of merchandise unions to inform the personnel most the legislative proposal; or the right of citizens to withdraw hold access to administrative documents, etc.

In this context, I fully empathise that 1 tin legitimately inquire the question: why devote so much importance, assay in addition to liberate energy to these administrative in addition to legislative issues, oft overlooked?

My respond is simple. Each time, it was impossible to attain otherwise. I've thought really oft most it, trust me, in addition to the same conclusion e'er came back. Such episodes attain non correspond, inward whatever instance for me, to the role in addition to values assigned to that Institution past times the Treaties. H5N1 approximate does non withdraw hold the sole mission to aid most principles inward her or his judgments; s/he must also worry most them inward their ain institution. This is the pregnant of the texts. Basically, this Institution is a collegiate one. Also, when the Courts’ Presidents withdraw hold powers (which no 1 disputes), they are required to exercise them respecting a serial of established principles past times their ain jurisprudence: (1) practiced administration, (2) transparency, (3) motivation, (4) compliance with judicial independence, in addition to (5) accountability to the colleagues who elect them. This must live said hither really clearly: according to the existing texts, this Institution is based on the regulation of checks in addition to balances, cherished past times Montesquieu, in addition to non the Keizer Prinzip, so loved past times Wilhelm II.

In addition, this also results from the spirit of the texts. Indeed, inward this Institution, if the judges, who are the most independent in addition to privileged, attain non command the management, so who will? Finally, this is also the cost of our credibility equally members of this Institution, especially inward a swell menstruation of doubt. Each time, I therefore firstly sought compromises to defend these principles. They were e'er refused inward the holler of the regulation of hierarchy, constantly invoked here, though it is both wrong legally in addition to inefficient inward damage of management. Reluctantly, I withdraw hold had to defend these principles otherwise.

My growing disillusionment explains the drafting of many memos on diverse topics inward the Institution. They were elaborated with iii goals: (1) to inform my colleagues in addition to the personnel (essential inward my Institution’s vision) most of import in addition to unexplained developments; (2) to impose equally much equally possible collective decisions, involving the responsibleness of all judges; in addition to (3) to exit behind me, in addition to at that topographic point appears my love of academy in addition to history, a description equally detailed in addition to documented equally possible of the Institution’s management. I withdraw hold wanted to attain this non only for my court, but also for futurity analysts, in addition to ultimately for European citizens, who are at nowadays rightly tired of the opacity of their Institutions. These documents cast now, equally yous tin see, 2 strong light-green books, amiably saltation past times a bunch of friendly colleagues.

Some locals withdraw hold sometimes spoken of all this with disdain. We’ll see. We tin regime annotation that, slowly, just about local practices change. The judges whose collaborators are candidates for an appointment are at nowadays excluded from the selection process, fifty-fifty when they are presidents. This is sure as shooting an improvement. The simplification of the information technology scheme is at nowadays an official objective. Article 52 of the Statute that requires an understanding betwixt the Presidents of the 2 Courts most the management has been of a abrupt rediscovered. An incredible appeal brought past times the Court of Justice inward forepart of itself to protect its fiscal interests has been withdrawn. There is inward this Institution for the firstly fourth dimension afterward lx years a formal, detailed report, approved past times the General Court, which covers the shortcomings in addition to possible reforms of its governance. H5N1 reflection is tardily opened upward on the weaknesses of the scheme of access to administrative documents. These changes evidence already that with an opened upward mind, nosotros tin easily attain better.

And I exit this identify with a smiling at the thought that, equally my memoranda covert essentially legislative in addition to administrative issues, they are essentially accessible to citizens. As a lawyer, I wanted to create a consummate file that illustrates inward many ways the fundamental demand to reform, for the firstly fourth dimension since 1952, the governance of this establishment during the adjacent revision of the European Union treaties. When yous withdraw hold a limited influence on the present, yous tin e'er at to the lowest degree laid the future.

This was peculiarly necessary since the citizens’ access to the Institution’s legislative in addition to administrative documents non related to judicial proceedings encounters serious difficulties. Article xv TFEU guarantees that access, with exceptions of course, to citizens who asking it. However, the Institution has at times resorted to secret documents inward key areas (such equally the revision of the Treaties in addition to the Statute). It has fifty-fifty distributed on 1 occasion at to the lowest degree a key document secret, unsigned, in addition to non listed. (Additionally, most members had no thought most these documents, in addition to they discovered them only thereafter inward other institutions or inward the press.) In such circumstances, it is inward fact impossible to ensure the proper application of Article xv TFEU. Furthermore, 1 tin occasionally query the qualification of "judicial affairs" given to sure documents inward the courts’ minutes. (The Definition of the Rules of procedure, for example, attain non correspond to a judicial proceeding, but to a regulatory function.) In this context, I withdraw hold sent, equally a fellow member of the Institution, xiii requests for information to the Institution’s leaders during the in conclusion months, with answers soundless to come. I hope they volition also create improvements.

Finally, earlier leaving, I must brand a mea culpa. Over time, disappointment made me occasionally acerbic. To give only 1 example, 1 even afterward a disappointing see where nosotros had heard 1 time once to a greater extent than lessons from the direction most how to think most our ain reform, I dropped to many friends: “the genius of the Carpathians at nowadays seems to withdraw hold found his genius of the carpets”. With exasperation, formulas easily come upward to me. On the 1 hand, inward retrospect, I regret them. On the other, they constitute the inevitable outcome of the permanent rejection of whatever discussion. I tin but inquire for forgiveness. You must consider at that topographic point the reflection of the bitter stubbornness of a lawyer who had e'er defended a high ideal of this Institution inward his multiple past times roles, in addition to who never accepted to abandon it 1 time arrived here.

Ladies in addition to gentlemen, dearest colleagues, fortunately, my remain inward this Institution was non monopolised past times these conflicts. Besides these nighttime episodes, at that topographic point were also luminous ones, especially at the judicial level.

However, I shan’t talk much most these activities. In this too, I withdraw hold e'er defended a collective vision. In this framework, 1 must assay to hear to diverse opinions, in addition to discovery the necessary compromises. Ironically, I was fifty-fifty reproached, occasionally, for existence equally good flexible. With this little approach, I withdraw hold been happy to contribute to the jurisprudence of this Institution, which I withdraw hold e'er defended with conviction during the whole period.

In the early on years, I was also pleased to discovery a General Court (then CFI) which, at the time, was making of import in addition to appreciated contributions to European law, that were seriously debated within in addition to outside. H5N1 courtroom which, at the time, enjoyed an extremely strong external representation, equally strong equally the Court of Justice’s. H5N1 General Court which, at the time, was non afraid of taking clear institutional positions in addition to especially was non afraid to defend them whenever necessary.

The passage of fourth dimension has allowed us, me in addition to others, to mensurate fifty-fifty ameliorate the debt nosotros had for this to Bo Vesterdorf, the President at the time, in addition to beyond, to Jose Luis da Cruz Vilaca, the founding President. These men had swell ambitions for their Court. They represented it brilliantly exterior cheers to many high-level conferences in addition to publications. And finally, they shared consummate integrity with their colleagues. I wanted to tell them today my swell friendship in addition to respect.

My squad has produced really practiced judicial results, both quantitative (many unopen cases) in addition to qualitative (very few contests thereafter). Nevertheless, I withdraw hold been mainly an orchestra director. These really practiced results were possible only cheers to the contribution of many people.

First, the members of my cabinet, without which really petty would withdraw hold been possible. They know my esteem, in addition to fifty-fifty my swell friendship for them. But this is non the identify to expand on this.

Second, the personnel of the other cabinets. I withdraw hold forged with them many relationships of sympathy in addition to fifty-fifty trust. They withdraw hold sometimes discreetly encouraged me. I withdraw hold been touched past times this support, especially inward hard times. Whenever necessary, I tried to defend the qualified persons (but non necessarily the others), to furnish them with the required information technology tools, in addition to to set an destination to the long uncertainty over their futurity inward which they are maintained.

Third, the registry personnel. It comprehends full general highly qualified persons, good led past times 2 successive, in addition to really talented, registrars. The registry’s personnel rendered many services to us. On my side, I e'er defended its staff needs, its information technology needs (this provoked occasionally just about sort of administrative Vietnam), its role equally a total histrion inward procedural decisions, in addition to finally its demand for serious judges’ attention. This is an essential synergy, soundless equally good petty analyzed.

Fourth, the Institution’s administrative services. They also comprise inward full general highly qualified persons, in addition to they attain non e'er piece of work inward piece of cake conditions. We must withdraw hold the courage to recognize that equally good oft hither the administrative personnel are firstly considered equally an adjustment element for the judges’ comfort. Let us holler upward the really symbolic story of my colleague in addition to friend Irena Wiszniewska on the 24-hour interval of her arrival when someone told her, “you are a judge, so yous tin attain anything”. Furthermore, local leaders pay much attending hither to the high appointments (they brand equally good many of them, in addition to equally good oft eugenic). However, they are less interested inward the living weather condition of the relaxation of the machine. Whenever necessary, I withdraw hold tried to combat this vogue too, though this was far from existence popular.

Fifth in addition to last, I must admit my swell debt to my colleagues of the General Court. Dear colleagues, all these years, yous withdraw hold been drowned inward memoranda in addition to interventions on multiple issues (often administrative in addition to legislative, but non exclusively). This transparent in addition to participatory direction did non correspond at all to the local genre. In fact, it was its consummate opposite. Yet yous withdraw hold rapidly tolerated this in addition to fifty-fifty really oft supported its administrative in addition to legislative conclusions.

One of us said to me 1 day, in addition to I suspect it reflects a prevailing sentiment, “You are a necessary evil”. To live honest, this is non the formula that I should withdraw hold preferred. Nevertheless, on the whole, it is ameliorate to live seen equally a necessary evil than equally a decorative invertebrate.

Today, I exit this identify with satisfaction. Our courtroom benefits from strong results, accurate statistics, a productive observatory, a seat on the futurity of the European Union judicial system, just about other 1 on the futurity of the Institution’s governance, detailed analyses on the imperatives of intelligent legislative reform, a novel streamlined organization, many information technology advances, greater transparency inward the resources allotment of cases, ameliorate awareness of the limits of external activities, in addition to a detailed strategy for the registry inward a novel court. Future observers volition withdraw hold all necessary documents to determine where most of these changes came from. In whatever case, this would non withdraw hold been possible without your private in addition to collective involvement.

Unlike many, it is our plenary deliberations that I shall immature adult woman the most. Although they were oft long in addition to sometimes difficult, they taught me immensely, in addition to I cannot give cheers yous plenty for that. I tried to laid them systematically. In fact, 1 of my swell corridor neighbours defendant me ritually of spending equally good much fourth dimension inward the business office of my colleagues. To that I e'er replied, “I’m non similar you, I attain non loathe my colleagues, in addition to I fifty-fifty love them”. And that’s true. Beyond the private characteristics of your personalities, yous stand upward for the variety of Europe, which has e'er been 1 of the swell charms of my life.

At this hour, I would similar to limited 1 hope. During the past times year, the direction of this Institution has seen just about improvements. However, problems remain. Above all, the Institution’s governance scheme remains out-dated, obscure, in addition to devoid of sufficient controls. So I hope that others volition move on to pick out initiatives inward these multiple domains.

My grandfather, Fernand Dehousse, who provided my education, taught me a swell lesson. He was inward just about other era the firstly rapporteur of the firstly European Parliament on the firstly draft European Constitution. During the war, due to his previous writings, the Nazis forbade him from all professional person activities. For 4 long years, he remained home, starved in addition to wrote numerous tracts in addition to documents (some of them advocating the integration of Europe). He e'er told me, “an thought never dies so long equally it finds 1 defender”. Today, I’d similar to pick out the same lesson.

There are many beautiful ideas inward our European Treaties, fifty-fifty if this is less understood today. One of the most beautiful is exactly our Institution. However, the European Treaties withdraw hold non created the Court; they withdraw hold created the Court of Justice. The Court is not, reverse to a pop local illusion, a value inward itself. It is only the musical instrument of a value - justice. Judges are non inward a higher identify the law, or adjacent to the law. They are, to a greater extent than modestly, its firstly servant. This must e'er live remembered, especially inward a identify when an official says on arrival, “you are a judge, yous tin attain anything”.

Especially, when judges handgrip exorbitant powers - equally hither – their legitimacy exists only if they impose on themselves the same constraints that they impose on others. Nothing is worse than a approximate who ends upward taking him(her)self for justice, except the same, when exercising administrative in addition to legislative powers. Indeed, then, whatever his/her championship in addition to technical capabilities, such a approximate becomes a subversion of the separation of powers.

Consequently, I hope that inward the future, whenever necessary, just about of yous volition move on defending my fundamental line during this whole period. According to the European Treaties, it is judges who are the servants of justice, in addition to non justice which is the retainer of judges - in addition to fifty-fifty less of just about judges - in addition to fifty-fifty less of a unmarried judge, whoever s/he is.

With that, ladies in addition to gentlemen, dearest colleagues, it remains to wishing practiced luck to everyone inward this Institution, whatever their role, inward piece of work that remains essential, especially now, for the futurity of our European continent.

For your humble servant, it is at nowadays the fourth dimension to state goodbye in addition to limited my gratitude to those who supported me (let's live honest, inward all meanings of the word), but inward a higher identify all those who assisted me inward many ways, encouraged me in addition to upheld my multiple initiatives to create together a ameliorate institution. Frankly, this has non e'er been an sense which inspired enthusiasm. However, cheers to you, it has e'er been, in addition to this is essential, a humanly pleasant one. Therefore, really sincerely, my deepest cheers to all of you.

Franklin Dehousse (19 September 2016)

Barnard & Peers: chapter 10

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