The lawyer in dialogue with the Court of Justice of the European Union
The congress of the European Bars Federation (FBE) was held from 13 to 15 October 2016 in Luxembourg. The theme was: The lawyer in dialogue with the Court of Justice of the European Union. For this congress, the Court of Justice of the European Union (CJEU) generously agreed to receive FBE in its chambers, bearing witness to the shared will to maintain and develop this dialogue.
Mr. Yves OSCHINSKY, Chairman of the FBE, opened the congress. After reminding participants that FBE brings together the entire family of bars in the European Union, he pointed out that the lawyer is first and foremost a partner of the rule of law and of justice in particular.
In his opening remarks, the Chairman of the CJEU, Mr. Koen LENAERTS, mentioned the difficult task of the Court, which consists of placing the divergent phenomena in the 28 member States on a common base. In the Akzo Nobel Chemicals Ltd. case (CJEU, case no. C-550/07, 14 September 2010), the Court identified independence as constituting this common base as far as the lawyer’s profession is concerned. The lawyer in dialogue with the CJEU must be fundamentally independent; otherwise he/she can not fulfil his/her role as a collaborator with justice.
The first of the two panels was chaired by Mr. Paul NIHOUL, judge at the Court of First Instance of the European Union. The latter highlighted the role played by lawyers as a driving force for innovation.
The first subject was outlined by Mr. Dariusz GIBASIEWICZ, lawyer at the bar of Olsztyn. His intervention concerned the lawyer’s freedom to provide services and his/her freedom of establishment in the European Union. Insisting on the specific nature of the lawyer’s profession and its particular significance with regard to justice, Mr. GIBASIEWICZ addressed the subject via a comparative analysis. In particular, this was based on the CJEU decision that considered Belgian regulations reserving access to the profession of notary for Belgian nationals was discriminatory (CJEU, Commission vs. Belgium, case no. C-47/08, 24 May 2011).
Philip MOSER QC, barrister in England, followed with a presentation on the consequences of Brexit on lawyers’ freedom to provide services and their freedom of establishment. Mr. MOSER anticipated that the definitive Brexit date would be on or around 1 April 2019. On this date, the “Great Repeal Bill” should come into force, by operation of which the entirety of European law, with a few exceptions, will be transposed into United Kingdom domestic law. European law thus incorporated into national law will not be hierarchically superior to domestic law. There will no longer be any possibility to submit preliminary questions to the CJEU. Numerous questions are raised in this context: How will Brexit affect proceedings in progress? Will lawyers from the United Kingdom still be able to appear before European courts? Mr. MOSER reminded the panel that, by virtue of article 281 of the Treaty on the Functioning of the European Union, the CJEU may request a change in the statutes of the Court. This could constitute a way of maintaining barristers’ rights of access to the Court’s courtrooms.
Ms Juliane KOKOTT, advocate general at the CJEU, then addressed the question of the role of the advocate general at the CJEU. The advocate general’s conclusions, submitted several weeks before pronouncement of the decree, add an element of transparency to the procedure and, in particular, allow the public to react. Notwithstanding the increasing level of complexity of cases, advocate general KOKOTT is opposed to the idea of fragmenting the CJEU and setting up several specialised courts. She effectively considers that it is preferable for the Court to maintain its overall view of Union law. Advocate general KOKOTT also invited lawyers to ensure that they are concise and accurate in the interests of maintaining a constructive dialogue with the Court.
Mr. Thierry BONTINCK, lawyer at the bars of Brussels and Paris, addressed the subject of professional secrecy of the lawyer in CJEU jurisprudence. The usefulness and necessity of this secrecy are not contested. The issue lies in the extent of its scope. Mr. BONTINCK is opposed to confining professional secrecy to the litigation context, considering any distinction between defence and counsel activities artificial. Professional secrecy must have a dimension that is both procedural and substantial. The practical problems arising from the previously mentioned Akzo Nobel Chemicals Ltd. ruling were also analysed. Consequently, the opinions of company lawyers are not covered by professional secrecy under European law. However, the situation may be different under domestic law (e.g. Belgium). This constitutes a source of insecurity for companies, particularly when they are faced with searches involving competition law. The question of knowing whether or not the opinions of company lawyers will be covered by professional secrecy will depend on the authority implementing the enquiry measure (European Commission or national competition authority). The problems associated with obligations to report in the context of the fight against money laundering and financing of terrorism were also addressed. Taking the draft French law “Sapin 2,” which aims to protect whistleblowers, as an example, Mr. BONTINCK concluded with the observation that professional secrecy is threatened in practice.
Mr. Stefan RATING, lawyer at the bars of Barcelona and Frankfurt, spoke about the rights of the defence under European Union law. In particular, he concentrated on the practical problems posed in the context of directives regarding rights to interpretation and translation, information and access to a lawyer in the context of criminal proceedings (directives 2010/64/EU, 2012/13/EU and 2013/48/EU). As an example, Mr. RATING deplored the wording of article 3 (1) of directive 2010/64/EU, establishing the right to a written translation of “essential documents.” The question is to know who determines the essential nature of the documents to be translated.
The first intervention in the second panel, chaired by Mr. François BILTGEN, judge at the CJEU, was delivered by Mr. Gaetano VICICONTE, lawyer at the bar of Florence. His subject: Protection of the lawyer’s independence under Union law. Mr. VICICONTE stated that the right to a fair trial, enshrined in article 6 of the European Convention for the Protection of Human Rights (ECHR) and in article 47 of the Charter of Fundamental Rights of the European Union (the Charter), requires the lawyer to be independent. With this in mind, self-regulation of the profession is of the utmost importance. Mr. VICICONTE deplored that the latter is the source of recurring problems in the context of competition law. The lawyer is supposed to participate in the administration of justice. As such, the lawyer should not be mistaken for an entrepreneur like the others and his/her independence must be maintained.
Denis WAELBROEK, lawyer at the bar of Brussels, delivered a presentation of practical rules and procedures before the CJEU. Having reminded the panel that, in theory, lawyers hold the monopoly on representation of parties before the CJEU, questions concerning the language, cost and conduct of proceedings were addressed. Although swift clearing of cases is desirable, Mr. WAELBROEK nevertheless deplored the absence of adversarial debate in the written phase of preliminary ruling procedures. In this context, limiting speaking time for litigants was also identified as problematic.
Ms Eleftheria NEFRAMI, Professor at the University of Luxembourg, addressed the subject of the role of the lawyer in the context of preliminary ruling procedures. Concerning access to the CJEU, it is the lawyer’s responsibility, in dialogue with his/her national judge, to identify, raise and specify the relevant question. Before the CJEU, it is incumbent upon him/her to contribute to the content of the response given to this question. Finally, Professor NEFRAMI described the role of the lawyer consisting of ensuring that application by the national judge complies with the CJEU decision.
Mr. Haris TAGARAS, lawyer at the bar of Athens, presented the subject: Invoking the Charter of Fundamental Rights before national and European jurisdictions. Firstly, the limited scope of the Charter was described. Effectively, it only binds the member States insofar as they implement the law of the European Union (CJEU, case no. C-8/15, 20 September 2016). Mr. TAGARAS then stated that the Charter was likely to be invoked for two different purposes, i.e. as an interpretation tool on the one hand and in order to contest the validity of an individual act or regulatory provision on the other.
Mr. Jean-Paul JACQUÉ, Professor at the University of Strasbourg and the Collège d’Europe, spoke about coordination of the Charter with ECHR and the failure to obtain accession to it. By virtue of article 6 of the Maastricht Treaty, the fundamental rights guaranteed by ECHR are part of the Union’s law as general principles. ECHR thus constitutes a subsidiary instrument for interpreting Union law. Professor JACQUÉ regretted the unfavourable opinion delivered by the CJEU concerning the draft agreement on accession of the European Union to ECHR (CJEU, opinion 2/13, 18 December 2014). Although this draft agreement was not perfect, accession under these terms would certainly have been preferable to the current situation. In view of the Bosphorus ruling (European Court of Human Rights, no. 45036/98, 30 June 2005), the European Court of Human Rights will be able to try the European Union indirectly without the latter being a party in the proceedings. Professor JACQUÉ then proceeded with an examination of the obstacles to accession of the Union to ECHR. Although, in his opinion, these obstacles can be overcome, Professor JACQUÉ does not expect this to happen in the near future.
A round table having been given the subject of the respective expectations of the lawyer and CJEU marked the end of the scientific programme at the congress.
In conclusion, it is appropriate to commend the very high quality of the scientific programme established by Mr. Thierry BONTINCK. The work of the congress has highlighted the usefulness and strength of a real and genuine dialogue between the lawyer and the CJEU. The Bar of Luxembourg must also be congratulated for the flawless organisation of the congress, which was a resounding success.
Charles Muller Lawyer at the Bar of Luxembourg.