CCJE(2017)7

Strasbourg, 3 November 2017 / 3 novembre 2017

                               

CONSULTATIVE COUNCIL OF EUROPEAN JUDGES (CCJE) /

CONSEIL CONSULTATIF DE JUGES EUROPÉENS (CCJE)

Compilation of comments of the CCJE members and observers

before the plenary meeting of the CCJE on 8-10 November 2017 /

Compilation des commentaires de membres et d’observateurs du CCJE

avant la réunion plénière du CCJE les 8-10 novembre 2017

ATTENTION : below are only the general comments

(specific comments have already been integrated into the draft Opinion)

ATTENTION: ci-dessous sont uniquement les commentaires généraux

(des commentaires spécifiques ont déjà été intégrés dans le projet d'Avis)

Cyprus

Association of European Administrative Judges (AEAJ)

Council of Bars and Law Societies of Europe (CCBE)

European Judicial Training Network (EJTN)

Cyprus

I am of the opinion that the independence of the judiciary and that of individual judges is not stressed enough in the draft at least in the context of dissenting judgments. While everyone recognizes the need for uniformity in the application of the law, nevertheless there is and should always be room for dissenting opinions or judgments. In common law jurisdictions divergent opinions are allowed and even necessary where a judge especially at appellate or supreme court level, in good faith, wishes to differentiate himself on points of legal interpretation either of ordinary laws or within the constitutional framework. It so happens that a carefully reasoned dissenting opinion provides over the years the background for revisiting the legal issue, when the need arises and may in the end become the majority.

On para 29, the system of preliminary rulings exists precisely for authoritatively deciding on legal questions that usually have a constitutional importance. A decision of the appellate or highest court cannot therefore be in any way premature or hinder the development of the law as it paves the way for the lower’s court decision both on the legal and the factual aspects.

On general heading D, it is important to stress that without doubt the stare decisis principle is the foundation of the uniformity of law at least in common law countries. However, occasionally a supreme court may need to depart from its own case law where it appears on revisiting the legal issue in question, that a previous decision was obviously decided in an erroneous way involving, inter alia, a wrong appreciation of a principle of law.  Also where there are reasons of fundamental importance for departing from previous case law or an unjust result is the outcome of a previous decision.

AEAJ

Concerning the draft opinion, two comments:  1) point 32: it might be good to highlight as well that the right of departure for established case law also applies also to supreme courts, namely under specific qualified requirements, it is generally pointed out for judges.

2)  point VIII i): maybe it might be good to expressly note that in case of formal/informal mechanisms to overcome the inconsistency of case law between different supreme courts, that the mechanism should be of a kind, which does not undermine the function/standing as supreme court for each of the supreme courts involved.

CCBE

We shared the draft report with our member delegations and, besides that it was very well received, we only received the following comment in relation to point d) of the part VIII. Main conclusions and recommendations (p. 10 of the document) stating “The need to ensure uniform application of the law should not lead to rigidity and unduly restrict the proper development of law and neither should it jeopardise the principle of judicial independence”.

The comment is that: “the need to ensure uniform application of the law should not change the scope of the judgements given in interpretation by the ECJ on reference for a preliminary ruling, leaving always the possibility for judges to refer the matter again to the ECJ if they consider that a new interpretation is necessary”.

EJTN

On behalf of European Judicial Training Network, I would like to share the following comments. I’m grateful that the judicial training was identified as a tool aiming to safeguard uniform application of EU law. We appreciate the wording of p. 18 stating “Continued legal education and judicial training is extremely important for uniformity and predictability of the case law.” I would like to propose to elaborate on this issue, in the two directions, highlighting the role of such informal mechanism as judicial training.

Firstly, I propose to elaborate that: judicial training to serve the purpose of safeguarding the uniform application of law should not be understood only as attending training activities of any form (face to face, e-learning, blended activities) but also as a process of on-job training including methods like mentoring, couching, peer to peer learning. The judiciaries of MS should aim to become learning organisations.

Secondly, it is important to highlight that judges of all levels of seniority should participate in training activities as well as a need for highest judicial authorities to support judicial training.