Department of Political Science - DPS
Menu for Justice Project - MFJ
With financial support from the Life Long Learning Programme
European Commission – Education and Culture DG
Work Package 4.
“Design of scenarios for implementation”
Deliverable n° 23
MINUTES REPORT
of the Workshop
“Building Blocks for legal and judicial training”
29-30 March 2012
Venue
University of Bologna
Department of Political Science
Via dei Bersaglieri 6/c - Bologna
Report by:
Cristina Dallara (IRSIG-CNR)
With the collaboration of:
Rosanna Amato (University of Bologna and IRSIG-CNR)
About Menu for Justice
A common legal framework and a convergent judicial culture represent one of the pillars on which the European integration process has been established. Today more than ever, understanding and maintenance of the pace and direction of European integration needs to rely on a common language with which European citizens and policy makers can develop a dialogue that bridges domestic and cultural differences.
Menu for Justice is the first European project that takes seriously the issue of how the new generation of Europeans should be trained in law and legal matters and how experts in law and the judicial process can develop new skills and competences to effectively face the challenges of a common judicial space. By devoting three years to joint working among fifty partners in Europe, this project aims to assess the key gaps in legal and judicial education in all European countries at all stages of education: from undergraduate to graduate and PhD programs in universities to vocational training of lawyers and judges. By assessing the “state of the art” of education for law students, lawyers and judges in Europe, Menu for Justice aims to provide vital information to policy makers considering the development of an innovative curriculum studiorum in judicial studies. It will also provide European institutions and the public with basic guidelines for monitoring the way legal and judicial training are changing in Europe.
MFJ aims to offer an overview of the regulatory and practical barriers European countries are confronting when it comes to the reform of legal and judicial training programs. The project aims to conduct a critical review of the contents of training. Legal scholars and judicial actors will be particularly affected by choices concerning what to learn and how to teach. We intend to map out the possible contents of a curriculum studiorum in judicial and legal studies, to be used to compliment existing programs of legal and judicial training in European countries.
About the Work Package 4 “Design of scenarios for implementation”
The WP4, coordinated by the Research Institute on Judicial Systems of the National Research Council of Italy (IRSIG-CNR), was designed to deal with the differential legacies, practices and regulatory environments that a possible implementation process of the curriculum studiorum would face in each EU Country.
Implementation entails a balanced assessment of the contexts (educational, cultural, regulative) in which the curriculum will be embodied, then a comprehensive discussion among the partners, each of whom will bring on the table its own experience in teaching, is promising for a large impact project.
The WP was run in parallel by the four Task Forces of the project, which addressed barriers, resources, capacities that influence the implementation process of the curriculum studiorum in the four tracks of the legal education and judicial training cycle.
The WP4 foreseen two Deliverables: an Implementation meeting (D23) and the development of a Training needs assessment tool (D22):
Given these commitments, IRSIG proposed to the Steering Committee of the project Menu for Justice to organize a Workshop (intended as Implementation Meeting, Deliverable D23) developing a debate among the partners and some selected guests focused on exposing the new contents and subjects which are needed to integrate legal and judicial training programmes missing elements. The debate in the Workshop was intended as the starting point to develop a Reference Tool for the Assessment of Training Needs, the other deliverables of the project.
Our approach was to develop a Tool that identifies key factors individual Countries need to consider in assessing their current judicial training programme, future judicial training needs and the most effective means of delivering judicial training.It does not assess judicial training in European Countries on a hierarchical basis.Instead, it takes an issue-based approach to judicial training.
The reference tool “that identifies key factors individual Countries need to consider in assessing their current judicial training programme, future judicial training needs and the most effective means of delivering judicial training”
It is worth mentioning that one of the specific objectives of the WP4 is not to assess judicial training in European Countries on a hierarchical basis, but, instead, to take an issue-based approach to judicial training. In this way, we will not express any judgement or evaluation about the countries training programmes but we will offer some information drawn by the debate developed in our network. The objective was to develop an assessment tool that will provide any individual Country with the building blocks for advancing their judicial training programme.Using the building blocks, each Country can then develop its own individual training plan designed to provide the most efficient training programme.”
About the Workshop “Building Blocks for legal and judicial training”
The aim of the Workshop, organized by the Research Institute on Judicial Systems of the National Research Council of Italy (IRSIG-CNR), was to develop a debate among the partners of the Menu for Justice Project and the selected guests on the new contents and subjects needed to integrate legal and judicial training programmes in EU member States.
Throughout the ideas, opinions and recommendations raised during the Workshop, the participants contributed to the development of a Reference Tool, helping Countries to identify key factors that they need to consider in assessing their current judicial training programme, future judicial training needs, and the most effective means of delivering judicial training.
The Workshop intended to be an open minded exchange of information and ideas, sparked off by the guest speakers.
The Workshop was divided into two sessions. The first one dealt with the new European dimension of judicial training, the main challenges and the new needs. In particular, this session highlighted the main problems deriving from the increasing development of EU Law scope and impact in national legal orders, which occurred with successive changes to the European Union Treaties and particularly Lisbon Treaty.
More than ever legal professionals are concerned by EU law; as a consequence, they need to be more aware of both the interaction between EU legislative instruments and national legislation and the mechanism of cooperation between European Court of Justice and national courts.
The second session centred on the identification of tools and methods for the definition of the new judicial training needs. Through various case-studies, the session examined both the experiences in the field of judicial training realised at national level in certain EU countries and the suggestions and guidelines provided for by the relevant international, European and national legal instruments.
See the detailed programme in the Annex.
Overview of the Guest Speakers communications
First session: The European dimension of judicial training: new challenges new needs
Eleonor Spaventa – School of Law Durham University (UK)
She focused on the relationship between national courts and European Court of Justice - ECJ and the main challenges characterizing this form of cooperation.
The first issue she dealt with was related to the ever expanding scope of application and incidence of EU Law. She pointed out that as a result of the successive Treaty revisions; the huge amount of secondary legislation (ever more technical) and the pronouncements of European Court of Justice, a greater number of areas are covered by EU Law and an increasing amount of cases fall under the scope of application of EU Law. For this reason, it is ever more difficult for national judges to actually recognise whether national litigations imply point of EU Law to rise. As to this question, she stressed also that the most of the progresses in substantial law stems from the content of ECJ judgments issued after a request of preliminary ruling and that the latter contributes to the development of EU Law in a way that is not always clear and coherent.
The second problem she highlighted is that even if national judges are trained in EU Law, they are not always able to recognise situations that fall within the exclusive scope of application of EU Law.
Linked to these problems is that preliminary ruling is a time-consuming activity; the main proceeding brought before the national court has to be stopped and, only after ECJ ruling, national judge can issue its decision. Since only courts of last instance are obliged to refer ECJ, other judges may decide to not refer ECJ also if they are aware that points of EU Law have to be raised; in their opinion courts of last instance can do it if they want.
Another problem evidenced by Prof. Spaventa consists in a huge confusion deriving from the existence of the two parallel systems of EU and Council of Europe in fundamental rights matter. Many national judges are still confused about the role played by ECJ and the Court of Human Rights in Strasbourg in the field of fundamental rights. She remarked that it is not so unusual to find requests for a preliminary ruling where national judge asks ECJ to pronounce about the interpretation of ECHR provisions.
Finally, she stressed another tricky question affecting the relationship between national courts and ECJ, i.e. the tensions between higher national courts and ECJ, concerning sensitive issues like primacy.
As to the problems concerning the cooperation between national courts and ECJ, from the national courts perspective, Prof. Spaventa identified the following critical elements:
First of all, vocational training programmes have to be designed and implemented also for judges in Luxembourg, which often are not sufficiently aware of their role.
The second critical element is the variable quality of preliminary references; indeed, the degree of clarity of the questions referred is crucial for the elaboration of the ECJ answer. As to this issue, Spaventa stressed also that in certain cases ECJ try to avoid answering to sensitive or political questions. In these cases ECJ may answer in an unsettled way or recast the question. This is a huge problem for national courts that wait for the reply of ECJ in order to solve a pending dispute.
Other problem is the low quality of ECJ ruling; very often it uses the technique of copy and paste from its own ruling.
Finally, she evidenced that ECJ has to face structural problems. EU has 23 official and working languages; all these languages may be used in the applications to ECJ and may be the “language of the case”. As a result problem of translation can arise. Secondly, many judges, in particular judges coming from new members States are often not fluent in French that is the work language used traditionally by the Court.
Karolina Podstawa – Law Department, European University Institute – Fiesole (IT)
She focused on the analysis of judicial cooperation among national authorities and on the importance of mutual exchange of ideas and experiences between judges.
From EU Law perspective, judicial cooperation between national judges is based on the principle of mutual recognition of decisions issued at national level that is the cornerstone of judicial co-operation in the Union. As a result, this kind of system requires a high level of mutual confidence between national authorities; a decision taken by an authority in one Member State may be accepted as it stands in another state.
As Podstawa remarks, from the judiciary perspective the number of challenges for judicial cooperation significantly increased. The problems she identified are listed as follow:
- the existence of different legal cultures and traditions in each EU member State;
- the multiplication of sources of Law,
- the use of different languages in the institutions,
- the different organisation of the courts and of the judiciary at a national level.
In the light of the foregoing, she suggested to contribute to increase the national judges awareness of the helpfulness of judicial cooperation and judicial dialogue, not only as an EU imposed procedure, but also as a tool for to adjudicate on the basis of national Law but in a way which is coherent with EU Law. Judicial dialogue has to be considered as a set o techniques to ensure coherence and to reduce conflicts in the protection of some constitutional goods, as for instance fundamental rights.
In order to achieve this goal, in her view it should be paid attention not only on the knowledge of substantive law, but also on the sharing of practices and procedures. She highlighted the need to emphasize the methods and practices of adjudication. As a result legal training programmes have to integrate also practice and not only substantive law. Finally, she suggested the improving of the cooperation between judges and academics.
Juan A. Mayoral – Juan March Institute (ES) - European University Institute – Fiesole (IT)
Mayoral’s research is aimed at mapping the national judges’ attitude to EU Law application.
He stressed that a new conception on how national judges take decisions is developing. Generally, scholars use to pay attention on knowledge and resources judges have in order to issue decisions; nevertheless, since national judges are socialised within its own national judicial and legal culture, he stressed the importance to pay attention also to the national judges’ attitude in the application of EU Law. The latter can vary significantly among the different EU member States.
In general term, his contribution was devoted to show a picture on the positions of national judges towards the EU Law and on their role as EU judges, in order to demonstrate to what extent different individual attitudes can influence the application of EU Law at a national level.
He called to mind that after the entry into force of the Lisbon Treaty, more attention was paid on the importance of a common judicial culture in order to achieve a better functioning of the EU legal order and a correct application of EU Law in the territory of all member states. In particular, he mentioned the Commission Communication Building trust in EU-wide justice a new dimension to European judicial training (2011), where Commission affirmed that judicial training is a fundamental tool for enhancing mutual confidence between Member States, practitioners and citizens.