Central European Judges under the EU Influence:
The Transformative Power of Europe Revisited
on the 10th Anniversary of the Enlargement
Date: May 12-13, 2014
Venue: European University Institute, Florence
Organisers: European University Institute, Centre for Judicial Cooperation and College of Europe, Department of European Legal Studies.
Outline: The aim of the conference is to critically examine the influence the membership in the European Union has had on the judicial thinking, method, and institutions in the new Central and Eastern European Member States.
Skimming through the texts dealing with the courts and judges in Central and Eastern Europe at the onset of the 2004 and 2007 EU enlargements, one acquires a mixed feeling. The mandatory institutional optimism of the various approximation and pre-accession reports stood in contrast to the rather sceptical tones voiced in some academic writings. “We Shall Overcome” rhetoric became mingled with somewhat scary images of CE post-Communist judges as limited formalists, who seek refuge in the realms of mechanical jurisprudence and senseless sticking to procedures. Afraid to decide on substance and to pass any controversial judgments, they dispose of cases on obscure points of procedure, in the observance of which they are very meticulous.
As the same narrative continued, CE post-communist judges would not be, because of their ideological and methodological shortcomings, able to apply EU law properly. Their word of limited law stood words apart from the mode dynamic and purpose-oriented reasoning style extant in European law. To such gloomy outlooks, a final prediction was typically added: CE judges will have to change their approaches and re-adjust their judicial method once acceding to the European Union, as the domestic application of EU law will inevitably bring about a change in the judicial style and reasoning methods.
Almost ten years have passed since the 2004 big bang enlargement of the European Union. The time may be thus ripe to examine, perhaps more critically and empirically than before, the two key arguments presented in the pre- and early post-2004 academic writings in a mantra-like fashion, namely that a) CE post-communist judges are dull formalists who are not able to apply EU law properly, and b) EU law and its national application are bound to bring about a change in judicial style and judicial method in the new Member States, as well as in the judicial structures on the whole.
The conference aims at addressing these and related questions with respect to the CE countries which joined the EU in 2004, but also 2007. The plan is to confront and contrast the “older” scholarship in this area (before and around 2004) with the “newer” scholarship in the same area (authors writing about life of EU law in the new Member States in the recent years), and with the judges and practitioners from the respective systems, i.e. the impressions from the practice itself. Such “triangular” debate ought to be able to provide a more reliable picture about judicial realities and structures in CE states. It ought to be stressed that the focus of the conference is on the judicial mentality and interpretative techniques, institutions and structures, not on (mere) quantitative studies of national (non)implementation of EU law.
Tentative Panels/Discussion Streams: Submissions of papers in one or more of the following discussion streams are particularly welcome:
1/ The European Engagement of CE Judiciaries: Openness to EU Law in General and to Preliminary Rulings in Particular, Reasoning with European Sources
The panel looks in particular at two questions: first, did CE courts and judges become visible or active actors in the European judicial arena since their joining the EU? Are they able to voice their views and concerns on the European level? Secondly, is any mutation or changes in judicial style – style of judgments, arguments used, length of judgments, type of sources worked with – detectable and possibly attributable to any European influence? Did the European engagement have any influence on the purely national style(s)?
2/ Judicial Ideology: Transformation of CE Judicial Method and Mentality
Much had been said and written about CE judicial formalism and/or textualism. First, this panel would “revisit the fundamentals” of the debate as framed more than a decade ago: what is formalism and/or textualism? Have CE judges indeed been formalistic? Why and since when? How exactly would the “formalistic” CE judicial mind demonstrate itself in approaching concrete cases? Would it really be something that different in terms of method from what say German, Austrian, Italian or French judges do when solving cases? Second, what precisely is the “European” method to which CE were believed to gradually approximate to after the EU Accession? What are its parameters? Can any “methodological approximation” to these methods be detected in judicial decision-making in CE courts today? If yes, is this indeed due to EU law and EU membership?
3/ Judicial Structures: Changes in CE Judiciaries under the European Influence
The period up to the EU Accession had witnessed unprecedented institution and judicial structure building in Central Europe: new organisation of the judiciary, new styles of work and judicial management had been introduced in courts throughout the CEE. With and after the Accession, however, one may witness halt in further reforms, in some instances even backlash or regression. In this panel, the focus would be on structural and institutional changes the membership in the EU brought about in CE national judicial structures after 2004/2007. What have been the channels, if any, for positively influencing the performance of judiciaries in the Member States once the pre-accession conditionality has been lifted? What role could there be for the European Union with respect to making sure its own Members (still) meet the Copenhagen criteria, even after the accession?
4/ CE Constitutional Courts within the EU today: Agents of Change or Bulwarks of Resistance?
In the period after 1989 and well before the Accession in 2004, most of the newly created constitutional courts in CE became the active agents of societal and legal change: weeding out old Communist laws, pushing for positive change in legal style and method within their respective jurisdictions. After 2004, their reputation became somewhat mixed, with more conservative and darker tones appearing. Most recently, the Czech Constitutional Court dared into a territory no other EU court has dared before by declaring a judgment of the Court of Justice ultra vires. The Polish Constitutional Tribunal also became somewhat more sceptical towards EU law. What is happening and why? Why has the (political?) agenda of constitutional courts changed so considerably after the 2004 enlargement?
5/ Do Spillovers Work Both Ways?
In this final panel, the focus would be reversed. The previous panels focus on how national legal method(s) in the new Member States have been changing under the European influence. However, influence is rarely just a one-way street. The traffic may flow in both directions. The task of the final panel would be thus to discuss whether the influx of members and lawyers of the new Member States has not changed the European courts (in particular the Court of Justice of the EU, but discussion of the European Court of Human Rights would be also welcome) or other European institutions themselves. Is any change detectable in the reasoning style of these courts in the last 10 years? Could this be attributed to change brought about by the new Member States judges and staff coming in?
The streams outlined above are tentative. Submissions by scholars from other fields than law are naturally welcome. Submissions outside of the listed five streams but still pertaining to the overall them of the conference may also be considered.
Submitting your Proposal: Scholars interested to present a paper at the conference should send an abstract of their intended contribution (no more than 1.000 words) before 15 December 2013 by email to Michal.Bobek@coleurope.eu and in copy to Federica.Casarosa@eui.eu. Scholars selected to present their papers at the conference will be asked to send in their full papers (first full draft) before 15 April 2014.