Pauliine Koskelo - Opening address at the General Assembly of the European Judicial Training Network - Helsinki 21 September 2006

Mr Secretary General and Members of the European Judicial Training Network,
Ladies and Gentlemen, Dear Colleagues -

It is a great pleasure for me, on behalf of the Finnish judiciary, to wish you all welcome to Helsinki for the General Assembly of the Network, and to open your session here with a few thoughts on judicial training in matters relating to EU law. This is indeed a special pleasure for me, because judicial training in general as well as judicial training in matters of European law in particular are themes to which I personally attach great importance. In today’s world, demands on the professional skill and competence of judges are high, and growing. I therefore very much appreciate and welcome the pursuit of your Network to enhance cross-border co-operation with a view to advancing, developing and raising the standard of judicial training in European law.

As a judge of a supreme court, one is in a good position to observe the level of European law competence among the national judiciary as well as members of the bar and the rest of the legal community. It is clear that although the situation in this respect is slowly improving, a great deal of further progress remains to be made. As president of such a court, I regard the ways and means of achieving such progress as a major concern.

Two years ago, the biannual Conference of Presidents of the Supreme Courts and Attorneys General or Prosecutors General of the Member States of the European Union was held here in Helsinki. One of the topics then was “how to improve knowledge of Community law” within the judicial system. I had the task of preparing a paper on that subject for the conference.

In the paper, I started by referring to the requirement, often stressed by the European Court of Justice, that Community law must be given full effect by national courts. In this context, the Court of Justice has emphasized that any provision of a national law or any judicial practice which might impair the effectiveness of Community law, by withholding from the national court the power to do everything necessary to set aside national legislative provisions which might prevent Community rules from having full force and effect, are incompatible with the requirements of Community law. I then went on to point out that while these statements by Luxembourg Court refer to possible impediments of a legal or institutional nature that may stand in the way of Community law being given full effect by the national judge, in reality a more widespread and serious problem may lie elsewhere, namely in the professional ability of national judges to do what is required and expected of them. Insufficient knowledge of Community law, or inadequate understanding of the duties resulting from it, are probably one of the major practical impediments obstructing the “full force and effect” of Community law. Training, and better training, is indeed important.

Each national judge is a Community judge, and needs to understand and be able to fulfill his role as such. The application of Community law takes place at the national level. Whether, and how well, Community law operates in practice depends largely on how well national judges do their job as Community judges. Cornerstones of the Community legal system, such as the principles of supremacy, direct effect, conforming interpretation, and the requirement of effective and equivalent remedies, largely rest or fail on the capacity of national judges to uphold them.

The task is a difficult and demanding one. This is due to several reasons, many of which arise from the nature of the Community legal system and its relationship with national law.

Firstly, Community law is not easy. It is both wide-ranging and complex. It can have an impact in almost any field of law, including situations where its relevance may not always be obvious at first sight. Its interaction with national law may give rise to difficult issues.. Without a solid grasp of fundamental principles, the risk of getting lost is considerable. The sheer mass of legal materials may appear daunting. Without a good systemic knowledge, it may be an overwhelming task to determine the significance and the impact of Community law in a given situation.

Secondly, a superficial knowledge of Community law is no longer enough in order to manage properly the task facing a national judge. Even where the legislator has tried to implement directives or framework decisions in good faith, subsequent interpretations made by the Court of Justice may give rise to situations where a domestic law can no longer be taken at face value. The obligation of conforming interpretation requires vigilance in the courts. The effects of primary law are often far from crystal-clear, at least not without a thorough examination of relevant case-law. Living up to judges’ responsibilities requires more than a general acquaintance with the basics of Community law.

In the Köbler- case, Advocate General Léger pertinently pointed out that the national judge is called upon to keep a critical eye over his domestic law in order to ensure, before applying it, that it is in conformity with Community law. It is obvious that such a critical analysis is not possible unless the judge is well familiar with Community law. In fact, the first crucial point is to be able to identify those situations where Community law is relevant. Even this first step may often require a fairly advanced level of Community law skills.

Thirdly, Community law, too, is in a constant state of evolution, and it expands into new areas. One notable example of this is the so-called third pillar, where numerous novel legal instruments have emerged in recent years. Some of them take the form of directly applicable regulations and must therefore be known and applied by national judges as such, without the intermediation of domestic implementing legislation, as is the case with directives and framework decisions. The need for a continuous updating of knowledge is, in itself, a big challenge for any lawyer.

Fourthly, many important elements of Community law are based on the case-law of the Court of Justice. In fact, many of the fundamental principles have been established, developed and refined solely through case-law, and there is no trace of them in the present Treaties themselves. Especially for judges in Member States where case-law traditionally plays a less pivotal role in the national legal system, a proper understanding of the Community legal system may therefore require a new orientation when it comes to managing sources of law.

Furthermore, the judge needs to have an autonomous ability to deal with Community law issues in order to ensure that he will not be led astray. Parties may fail to invoke Community law where relevant - either because of ignorance or for tactical reasons - or they may invoke Community law in situations where it has no bearing, or they may make erroneous submissions about the state or the impact of Community law in a given issue. The judge should know better, and must know better at least in those legal systems that adhere to the principle of iura novit curia.

All lawyers need European law knowledge. It is my firm opinion, however, that judges require special training, well adapted to their specific task and the particular needs arising from it. This is true in relation to the provision of basic Community law skills but also in relation to the updating of knowledge. In order to achieve good concrete results, the topics, materials and teaching methods should be designed in a way that ensures that the training is relevant for the context of judicial work, and that it meets the real needs of judges.

Theory and lectures will not be enough to provide judges with the skills they need. Learning how to properly consider and apply Community law in individual cases requires practical exercise, and a training that illustrates the operation of Community law in a concrete manner. The right kind of training would not only help judges acquire the skills they actually need in their work, but also show that Community law is relevant to them, and that it is a worthwhile subject to spend time on. Really good tailor-made teaching might also be a way of overcoming a lack of interest and motivation in this field.

Even if national arrangements remain the basis for providing judges with the competencies they need, the training of judges in European law is nevertheless a common European interest. As the subject is common, it is a matter where joint efforts, shared experience and pooled expertise can certainly be put to greater use for the concrete benefit of all. It takes a great deal of intellectual as well as material resources to plan and provide good training. Working together in this field is therefore a natural option.

As we all know, new developments in European Union law, following the entry into force of the Treaty of Amsterdam, involve closer judicial co-operation between the Member States in civil as well as criminal matters. These developments also create new needs for training, and for cross-border training co-operation. This has been reflected in the draft Treaty for a European Constitution, where the provisions on judicial co-operation in civil as well as matters include clauses that would provide for certain Union level measures in order to support or encourage the training of the judiciary and judicial staff.

Although the fate of the draft Constitutional Treaty as such remains uncertain and open, the importance of these matters is undeniable. Indeed, the European Commission has recently issued a Communication on judicial training in the European Union, which of course is well known to this audience.

Judicial co-operation in civil and criminal matters is a specific area where training must not only include the relevant European law itself but, because of the cornerstone principle of mutual recognition, also extend to a dissemination of knowledge regarding the relevant national legal and judicial systems in the other Member States.

Mutual recognition is based on mutual trust. Therefore, it is of vital importance that each Member State is committed to the necessity of ensuring that their legal and judicial system is indeed worthy of the trust that others owe to it. Proper training of staff is one aspect of this. The promotion of a good and sound judicial culture and esprit de corps is another.

Ladies and Gentlemen,

While the new developments in the field of justice and home affairs generate new training needs, there remain real and continuous needs to improve and develop judicial training in the more traditional areas of Community law as well. A good knowledge of general EU law is the foundation. Necessary expertise in specific areas should rest on a solid foundation. Through increased co-operation, helpful concrete efforts can be made in order to achieve a sufficient standard of knowledge and expertise throughout the Union. The European Judicial Training Network is a valuable tool for such co-operation, and I sincerely wish you plenty of energy and success in this important work.