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Vice-President of the European Commission, EU Justice Commissioner
From Maastricht to Lisbon: building a European area of Justice in small steps and great bounds
Assises de la Justice/Brussels
21 November 2013
Ladies and Gentlemen,
Today is a very special day for me. I am truly honoured to see so many eminent legal experts and practitioners here, eager to sit down with us to think and debate for two days about the future of justice policy in the EU.
The reason why we have called this event the "Assises de la Justice" is that this really captures what this conference is about: welcoming participants from all over the European Union, from rather different backgrounds and with different perspectives. Why? Because we need you for this debate. Your experience, your views, your creativity. In your different areas of work, whether in politics, the judicial system, academia or journalism, you have been developing, applying, and informing about wider justice policy. You also know the long and sometimes winding journey taken by our Union over these last years to build a true European Area of Justice. Where do we think the European Area of Justice should be in 2020? What should it look like? What do we need to do to get there?
For the past four years, ever since I became EU Commissioner for Justice, I have had the privilege of being at the heart of this joint endeavour. It has been an exciting time, and I have learnt a lot. About justice policy, but also about – and from – you, the people shaping it.
1. An irresistible force
I am going to argue that in order to move forward, we will first and foremost have to work on one thing: trust. Over the past decades, we have managed to build up mutual trust between Member States and their different justice systems, national courts and lawyers. But it took time. And it has been a sometimes haphazard and even painful process.
This is something we have to keep in mind when we look ahead at how to progress in the different areas of justice policy. Mutual trust is the foundation for our European area of Justice, and only if we consolidate this trust will people and businesses be able to reap the full benefits of EU justice policy. And that has to be our aim. Justice is not for the statute books. It is for citizens.
When we look back at how justice policy has evolved in our Union we can see the impact a lack of trust has had on the development of judicial cooperation very clearly. We can also see how in turn this has impeded citizens and businesses and deprived them of the enjoyment of their rights under the EU Treaties.
When we first set out on our journey towards a European Area of Justice, and I would say, often along the road as well, we have witnessed a frequent reflex. A reticence born of the prevailing attitude: Our legal system is the best. And if we work together with others, we might end up with lower standards. Well, we have 28 perfect systems in the EU – but they still need to work together!
It is this kind of attitude that explains the "quarantine" approach taken in the Maastricht Treaty. While this treaty did introduce specific provisions on judicial cooperation in civil and criminal matters, these were kept firmly in the intergovernmental "third pillar" - a safe distance away from the "Community method". This meant that Member States had to take decisions unanimously. The European Commission, the European Parliament and the Court of Justice of the EU were given only a very limited role. So there was an EU justice policy, but it was shackled. A prisoner of mistrust.
But this could not last. As I have said before, justice policy does not exist for its own sake. It is there for its end-users, citizens and businesses. And as the needs of these users evolved with the increasing importance of the Single Market and free movement, justice policy could not be relegated to the side-lines any longer.
In an increasingly integrated European Union, people began to move across borders. They studied, worked, got married, had children, bought property, divorced and died in a Member State other than the one they were from. Businesses started to offer their products and services across borders. They set up factories and subsidiaries in other Member States and acquired companies there.
Judicial cooperation, which of course existed before the European Union, nevertheless had to find more efficient ways to handle the myriad of legal questions and problems thrown up. How to deal with the need to recognise certain documents across borders? Which court to turn to in order to resolve the break-up of a family? How to secure redress in cases of litigation?
In other words, the "quarantine" approach to justice policy was not serving its purpose, nor its users. And as Member States realised this, they decided to start trusting. At least a little bit. With the Amsterdam Treaty, certain provisions, in particular those on cooperation in civil matters, were transferred to the supranational first pillar – albeit with some safeguards. The Commission gained the right of initiative in all areas of justice which it still shared with Member States. And the European Parliament obtained the right to be consulted on most issues.
As in all walks of life, trust is never a given – it has to be earned. But once it starts taking hold, it can be contagious. Politicians, judges and practitioners from different Member States began to increase their contacts. Networks formed, discussions took place and the realisation dawned: those other legal systems were not that bad after all. Judges and legal professionals gained confidence in the way this cross-border application of law worked.
Hence, the Treaty of Amsterdam was a big step in taking justice policy into the regular framework of EU decision making. Civil and commercial law were simply too integral a part of taking advantage of the Single Market to remain isolated national domains. But mutual trust was still limited. And, most importantly, cooperation on criminal matters remained firmly in the intergovernmental third pillar. And that is where it stayed for the next decade.
It was only with the Treaty of Lisbon that this exceptionalism ended. The three pillar structure was abolished. In all fields of justice policy, the role of the Commission and of the Court of Justice of the EU and the European Parliament as co-legislator was brought under the Community method, albeit with a few particularities. This made justice policy a lot more transparent and democratic.
So I think you can say we have come a long way on our journey together. And the direction signalled by Heads of State back in Tampere in 1999 remains as valid today as it was back then: "In a genuine European Area of Justice, individuals and businesses should not be prevented or discouraged from exercising their rights by the incompatibility or complexity of legal and administrative systems."
2. It is all about trust
The bedrock on which judicial cooperation has been developed, both in civil and commercial matters, is the principle of mutual recognition. Great strides have been taken to apply that principle. But mutual recognition only works in the presence of trust.
Take the European Arrest Warrant, which provides for an efficient and effective surrender system, necessary to prevent those seeking to evade justice from exploiting Europe's open borders. It is a marked improvement as a means of judicial cooperation compared with the lengthy complexity of extradition procedures that preceded it.
Or take the so-called Brussels II bis Regulation, which provides an equally important regime of mutual recognition in the field of family law as regards the sensitive matter of parental responsibility. Beforehand, citizens faced uncertainty as to which courts they had to apply to and where these courts were located. They also risked having parallel proceedings and contradictory judgments. Each year there are 300,000 new international marriages in the European Union. When things go wrong in a marriage, European judicial cooperation should be there to help.
And then there is the great progress that has been made through the abolition of exequatur, most recently in the recast of the Brussels I Regulation, so that judgments issued in one Member State are treated in another Member State as if they had been issued there. This is judicial red-tape, and it makes sense that we do away with it.
These remarkable instruments of cooperation – the bridges between our different legal orders - are something that the EU should take pride in. But like any feat of engineering, the proper legal safeguards have to be built in, to make sure that the bridge is structurally sound. We have to have the safeguards, to build the trust.
Our work in this regard has been greatly facilitated by the Lisbon Treaty, which made the EU Charter of Fundamental Rights legally binding as a primary source of law. This has bolstered the place of fundamental rights within the Treaties. All citizens' rights and freedoms were finally brought together in a single document and made more visible and explicit. Now, whenever a new piece of EU legislation is enacted, it is screened to make sure that it respects those fundamental rights.
This undoubtedly has an impact on our work to secure the necessary procedural safeguards. Common minimum standards are necessary for judicial decisions taken by one EU country to be recognised by all the others. To achieve such standards and create the basis for the mutual trust needed to make sure they are enforced, we have made real progress in securing procedural rights in criminal law cases – such as the right to interpretation and translation, the right to be informed about rights and the right to legal advice, before and at trial, to name but a few. Next week, the Commission will be strengthening the foundations of the European Area of Criminal Justice by making proposals on legal aid, rights of children and the presumption of innocence.
By setting minimum standards and creating new European rules, we are working to deepen mutual trust. This is why the initiatives on fundamental and procedural rights I just mentioned, for example, are so important. It is also why the tool we have developed to assess the quality, efficiency and independence of national justice systems - the EU Justice Scoreboard - is crucial.
The importance of effective national justice systems goes beyond the need to foster mutual trust for the purpose of applying judicial cooperation instruments. Whenever a national court applies EU law, it acts as a "Union" court, and must provide effective judicial protection so that everyone, citizens and businesses, can uphold their rights under EU law. Shortcomings in national justice systems are not simply a problem for a particular Member State but can impact the functioning of the Single Market, and more generally, the whole EU. Added to that is the central importance of a well-functioning justice system to the wider economy – for providing confidence to invest for growth. This explains why the Commission uses the EU Justice Scoreboard as a tool in the European Semester, the EU's annual cycle of economic policy coordination – with a focus on the functioning of the civil, commercial and administrative courts.
Ladies and Gentlemen, the EU Justice Scoreboard is a tool for Europe's wider justice community. I see it as a mechanism of cooperation, based on an open dialogue which includes the stakeholders with first-hand experience of the national justice systems. It must take account of those much cherished and varied national traditions.
So once more, we see that we cannot do this alone. We need you. Because in your daily work, by dealing with other legal systems, by interacting across borders, by explaining how similar problems are resolved in your own legal order, you are constantly deepening trust and wider understanding.
You are the ones filling our nascent European Area of Justice with life – through joint training exercises, but also through the networks you have set up, like the European Network of Councils for the Judiciary or the Network of the Presidents of the Supreme Judicial Courts of the European Union.
3. How we move on from here?
Thanks to our joint efforts, we have come a long way. And I think we should be proud of that. But of course there is more work to be done. We have laid the foundations of mutual trust, but we have to reinforce it. In a Eurobarometer survey we conducted in preparation for this conference, more than half of respondents from across Europe told us they think there are differences between national legal systems with regard to their quality, efficiency and independence. And only just under one third rate their national justice system as more or less the same as the others.
This clearly shows we have more to do. That is why we are here today and tomorrow: we need to have a discussion about how and with what tools we can deepen the trust we need to bring about a true European Area of Justice. We have laid the building blocks, now we need to build a solid structure.
This should cover five key areas in particular.
Firstly, in civil law, I am interested to hear whether you consider there is sufficient legal certainty for citizens and businesses. Whether you believe that a new focus should be given to procedural law matters, such as the service of documents. And I think it would be useful to hear from you on whether more should be done to ensure the efficient enforcement of judgments.
Second, with regard to criminal law, I am interested in your views on what further development of criminal law at EU level might be needed. We should debate how we can further strengthen mutual trust. We also need to look at how we can make it easier for legal practitioners to cooperate to make EU criminal law more effective.
Third, let us not forget the importance of administrative law. National administrations and administrative law courts play an absolutely fundamental role in applying and upholding EU law. Take the recent example of the integration and cooperation taking place between the European and national levels in the context of the Single Supervisory Mechanism for banks, Europe's new banking supervisor. In such a case, it is important to know who has the power to give instructions, who can be held liable and before which courts, national or EU. These questions require administrative law answers that are increasingly European in nature and scope. So are there ways to enhance cooperation between authorities? We should also explore means to make sure that administrative law is more consistently applied and that there are also solid procedural rights in place here.
Fourth, with regard to the rule of law, I would like to benefit from this forum to hear your views on how a new framework for safeguarding the rule of law amongst Member States could work. In that discussion, it would be useful to distinguish between what can be done using the present Treaties, and what would require Treaty change.
And fifth, as for fundamental rights, which should underlie all the different subjects for discussion, we should look at how we can enhance the effectiveness of the rights enshrined in the EU Charter of Fundamental Rights, and how we can spread a better understanding of the scope of application of those rights.
I am sure we will have a lively debate over the next two days. There might be quite different views on some points, but that is all part of a healthy, democratic, transparent discussion. This is exactly the kind of debate we need to have.
Let me once again say how happy I am to welcome you all here. And now let us get started. Let us above all reflect on how we can work together to make sure that citizens and businesses can reap the full potential of our Union. Let us find ways to make our citizens and businesses feel the same confidence venturing across judicial borders as they would be staying at home.
Over the past few years we have taken a number of small steps which together constitute a giant leap forward on the road towards a true European area of Justice. Our journey is not yet over. Our discussions now should help illuminate our path forward.
I wish us all a fruitful and interesting conference.