Introduction by Professors Alemanno & Pech
Readers of this
blog will find below the English translation of Judge Franklin
Dehousse’s farewell address, which he had hoped to give on the occasion of
his departure from the EU General Court last month having served on its bench
since 7 October 2003.
In an apparent break
with tradition, no public ceremony was organised for the departing EU judges,
and an internal meeting was arranged instead (see this article
published in Le Jeudi on 22 September 2016). While regrettable, this is perhaps
not surprising. Indeed, Judge Dehousse has been among one of the most outspoken
critics of the controversial reform of the EU’s court system, which is now encapsulated
in Regulation 2015/2422
and Regulation 2016/1192
(and which we have ourselves critically analysed here
and here).
Dehousse’s
assessment and alternative recommendations are comprehensively set out in three
meticulously researched papers, which he published during the course of his
judicial term:
Readers may also
find of interest his paper dedicated to the Unified
Court on Patents, published in 2013 (Egmont Paper 60), which explores inter
alia the impact of the creation of a new European patent court on the EU’s
court system.
The address below,
which Judge Dehousse kindly authorised us to publish on this blog, contains
many valuable insights into the internal workings of the EU courts and, at
times, the testing relationship between its (then) three constitutive judicial
entities, particularly with respect to the controversial doubling in size of
the General Court, and the recent dissolution of the Civil Service Tribunal. His
address also offers some sound advice on how any structural reform of the EU’s
court system ought to be conducted in the future. Last but not least, the
address explains how the CJEU should seek to better manage and conduct itself,
failing which its authority may be fatally undermined, with potential negative
consequences on the legitimacy of the EU as a whole. As such, this farewell
address undeniably deserves, in our view, to be made easily accessible to EU
scholars and interested readers. It is our pleasure to share it with you via
this blog.
Alberto Alemanno,
Professor of Law, Jean Monnet Chair of EU Law and Risk Regulation at HEC Paris
and Global Professor of Law, New York University School of Law (Twitter:
@alemannoEU)
Laurent Pech,
Professor of Law, Jean Monnet Chair of EU Public Law and Head of the Law and
Politics Department at Middlesex University London (Twitter: @ProfPech)
Judge Dehousse’s Farewell
Address to the Court of Justice of the European Union
Ladies and
gentlemen,
Dear
colleagues,
To me, any holder
of public office must always present a report at the end of her or his
function. This seems all the more necessary than those years were sometimes
fraught with conflict. It must be acknowledged honestly in an Institution whose
mission is to ensure the transparency of all other Institutions.
When I arrived here
13 years ago, this office was my seventh profession and my fourth European Institution,
after the Parliament, the Commission, and the Council. European affairs had
been at the centre of my multiple activities, whether in the public or private
sector, at the national or international level, in legal circles or in the
media. I thus arrived with much curiosity and enthusiasm. To give away the plot
at once, my curiosity has been steadily increasing over the years though, in
many respects, my enthusiasm has been declining.
During the first three
years, I built a good team, which is absolutely essential here. I learned what
I ignored. And we eliminated a huge backlog: a stock of more than 100 cases
initially. After that, I wondered how I could still help the Institution.
Thanks to my previous experience, I could obviously assist other cabinets with
backlog, which was done. After that, according to Adam Smith and Ricardo, I
searched for my comparative advantage. Management, ICT, inter-institutional
relations, and strategy seemed to be rather rare talents here. I thus invested
in these domains.
On one hand, my
initiatives focused on the management of the General Court, then in big
trouble. For me, having followed many corporate restructurings, this required
first a better evaluation of the production of the cabinets, and its production
units. Moreover, before asking for any additional means, it seemed essential
for the credibility of the Institution to show that it had exhausted all
internal sources of productivity. To this end, I harassed the authorities to
establish the first serious statistics on the backlog and its causes. This
included concepts such as the infamous “PPPU” (the “productivity per personnel
unit”), or the threatening “delays columns” (adding all delays for all cases) (for
more comments on this, see my first report TEPSA / Egmont in 2011). Originally,
all this was not popular at all. Often after long and painful discussions,
these measures were nevertheless taken, to the honour of my colleagues. In my
humble opinion, they played a vital role in the elimination of the backlog
since 2011 - and without any additional resources.
On the other hand,
my initiatives focused on the management of the Institution. There, almost
immediately, the problems started. Quickly the local leaders saw my initiatives
as interferences, and even usurpations. Without commenting on all the episodes
of this long saga, four at least deserve a brief comment.
First, in 2007,
just before the signing of the Treaty of Lisbon, some of us learned that the
President of the Court had sent a letter to Council in order to ask for a
series of changes, presented as essentially formal, in the new Lisbon Treaty.
After reading, these changes on the contrary appeared quite essential.
Basically, they aimed for a large substitution of the Court to the Institution
in various provisions.
Everyone, of
course, has personal sensitivities. Mine were certainly accentuated by my
previous experiences in treaty revisions. For me, everything in this episode
was shocking. These were not mere formal changes, but essential amendments.
They did not result from any official position taken by the Court of Justice.
They had no detailed motivation. There had been absolutely no official
information within the Institution, to the public or to the Member States,
though they remain the guardians of the treaties. And, finally, these
provisions were not improving the adaptability of the Treaties. On the
contrary, they would have imposed more treaty revisions in the future. This
largely destroyed my trust in the Institution’s management.
Secondly,
information technologies (IT) became another conflict zone. From the beginning,
this Institution had seemed to suffer from a strong problem in this area. Like
many other institutions I have known, it had decided IT development in silos,
uncoordinated from one another. However, unlike many others, it had never
corrected this defect. For years, I tried to convince the people in charge in
the IT committee of the need for a more global system of management. Though
some understood that, it was impossible. A senior collaborator of the Court’s President
constantly imposed his personal vision, in defiance of all others.
Consequently, the Institution went on implementing simultaneously different and
uncoordinated strategies. For example, three different internal communication
systems were developed, without any study of possible synergies between them.
Later, three different reference systems were simultaneously used for the
jurisprudence.
In the name of hierarchy,
this nonsense was maintained for many years. The Institution had not even a
general plan of its IT systems until 2010! The “leaders” needed a half IT-crash
to begin to see the need of one. Though the present managers try now to improve
the situation, the legacy costs are extremely heavy, and the system is hardly
optimal. As all experimented users know, even the research in jurisprudence
encounters substantial problems.
With some
administration officials, we have tried to stop this drift. Finally, after many
debates, in 2010, the IT committee imposed a comprehensive analysis of the
existing system before any new spending. Alas, the cabinet of the Court’s President
had simply the minutes of the committee modified, despite the formal opposition
of the Court’s registrar. This was my second shock. The next decisions were
simply moved to a clandestine meeting. Meanwhile, the IT committee was still
defining its own strategy, until finally, the IT committee was simply
abolished.
This saga still
leaves me startled. The suppression of the committee because simplistic instructions
from above are debated reflects a very limited sense of debate. To do this
while IT becomes absolutely central for all activity reflects a great
managerial myopia. Finally, the episode shows the sometimes surreal character
of an Institution where judges have apparently time to think about the choice
of works of art, but not of IT solutions.
Third came in 2011 the
legislative proposal to create new judges to the Tribunal. Let’s make a long
story short. From the beginning, my first objective was to defend, as required
by the Treaties, an open and transparent process. However, the process
degenerated. The transmission of various General Court’s positions to
Parliament and Council was blocked. There was absolutely no impact assessment
or consultation process. As the press revealed, an unauthorized negotiation
took place with one government only, and without the knowledge of the 27 other
Member States. Questionable pieces of information were sent to Parliament and
Council in an unsigned document, undated and unnumbered. (One suspects that if
these pieces were so trustworthy one would have found someone to sign them in an
Institution of 2,000 people.) Other secret letters in the Institution’s name popped
up in the press. To these problems one must still add a highly questionable
ethical procedure opened against one of my colleagues who had provided accurate
judicial statistics at the EP rapporteur’s request. All this leading to a
manifestly disproportionate doubling of the General Court, against its own repeated
analyses from 2010 to 2014.
Again, this saga
still leaves me speechless. Although I have seen in my career dozens of
legislative procedures, that I had never seen. These events have convinced me
to publish accurate and documented reports, to avoid their repetition in the
future. (See the two reports TEPSA / Egmont 2016).
Fourth came the
curious accelerated creation of high administrative positions in the terminal
phase of one President’s cabinet. Apart from other considerations, creating
very quickly such a position, under the exclusive impulse of the Court’s President,
to manage a service of four people, without any general analysis of the
services’ organization, nor any written position from the Court’s registrar
(who is also responsible for all outlays), and based on vague projects (of
which almost none were implemented thereafter) seemed to me strongly below the
standards of good administration.
Many other topics could
be mentioned, such as the specialization of the General Court, or the
assignment of cases within it, both imposed by external interventions
(something incredible for a judge); or the ability of the Courts’ Presidents to
take fundamental decisions for the external representation without any preliminary
debate with members; the distribution of resources between the registries; the
questionable nature of an external activity; the use of drivers; the rights of
trade unions to inform the personnel about the legislative proposal; or the
right of citizens to have access to administrative documents, etc.
In this context, I
fully understand that one can legitimately ask the question: why devote so much
importance, effort and energy to these administrative and legislative issues,
often overlooked?
My answer is
simple. Each time, it was impossible to do otherwise. I've thought very often
about it, trust me, and the same conclusion always came back. Such episodes do
not correspond, in any case for me, to the role and values assigned to that Institution
by the Treaties. A judge does not have the sole mission to care about
principles in her or his judgments; s/he must also worry about them in their own
institution. This is the meaning of the texts. Basically, this Institution is a
collegiate one. Also, when the Courts’ Presidents have powers (which no one
disputes), they are required to use them respecting a series of established
principles by their own jurisprudence: (1) good administration, (2)
transparency, (3) motivation, (4) compliance with judicial independence, and
(5) accountability to the colleagues who elect them. This must be said here very
clearly: according to the existing texts, this Institution is based on the
principle of checks and balances, cherished by Montesquieu, and not the Keizer
Prinzip, so loved by Wilhelm II.
In addition, this
also results from the spirit of the texts. Indeed, in this Institution, if the
judges, who are the most independent and privileged, do not control the
management, then who will? Finally, this is also the price of our credibility
as members of this Institution, especially in a great period of doubt. Each
time, I thus first sought compromises to defend these principles. They were
always refused in the name of the principle of hierarchy, constantly invoked
here, though it is both incorrect legally and inefficient in terms of management.
Reluctantly, I have had to defend these principles otherwise.
My growing disillusionment
explains the drafting of many memos on various topics in the Institution. They
were elaborated with three goals: (1) to inform my colleagues and the personnel
(essential in my Institution’s vision) about important and unexplained
developments; (2) to impose as much as possible collective decisions, involving
the responsibility of all judges; and (3) to leave behind me, and there appears
my love of university and history, a description as detailed and documented as
possible of the Institution’s management. I have wanted to do this not only for
my court, but also for future analysts, and ultimately for European citizens,
who are now rightly tired of the opacity of their Institutions. These documents
form now, as you can see, two strong green books, amiably bound by a bunch of
friendly colleagues.
Some locals have
sometimes spoken of all this with disdain. We’ll see. We can note that, slowly,
some local practices change. The judges whose collaborators are candidates for
an appointment are now excluded from the selection process, even when they are
presidents. This is surely an improvement. The simplification of the IT system
is now an official objective. Article 52 of the Statute that requires an
agreement between the Presidents of the two Courts about the administration has
been suddenly rediscovered. An incredible appeal brought by the Court of
Justice in front of itself to protect its financial interests has been
withdrawn. There is in this Institution for the first time after 60 years a
formal, detailed report, approved by the General Court, which covers the
shortcomings and possible reforms of its governance. A reflection is slowly
open on the weaknesses of the system of access to administrative documents.
These changes prove already that with an open mind, we can easily do better.
And I leave this
place with a smile at the thought that, as my memoranda cover essentially
legislative and administrative issues, they are essentially accessible to
citizens. As a lawyer, I wanted to build a complete file that illustrates in
many ways the fundamental need to reform, for the first time since 1952, the
governance of this institution during the next revision of the EU treaties.
When you have a limited influence on the present, you can always at least
prepare the future.
This was
particularly necessary since the citizens’ access to the Institution’s
legislative and administrative documents not related to judicial proceedings
encounters serious difficulties. Article 15 TFEU guarantees that access, with
exceptions of course, to citizens who request it. However, the Institution has
at times resorted to secret documents in key areas (such as the revision of the
Treaties and the Statute). It has even distributed on one occasion at least a
key document secret, unsigned, and not listed. (Additionally, most members had
no idea about these documents, and they discovered them only thereafter in
other institutions or in the press.) In such circumstances, it is in fact
impossible to ensure the proper application of Article 15 TFEU. Furthermore,
one can occasionally question the qualification of "judicial affairs"
given to certain documents in the courts’ minutes. (The definition of the Rules
of procedure, for example, do not correspond to a judicial proceeding, but to a
regulatory function.) In this context, I have sent, as a member of the Institution,
13 requests for information to the Institution’s leaders during the last
months, with answers still to come. I hope they will also stimulate
improvements.
Finally, before
leaving, I must make a mea culpa. Over time, disappointment made me
occasionally acerbic. To give only one example, one evening after a
disappointing visit where we had heard once again lessons from the direction
about how to think about our own reform, I dropped to many friends: “the genius
of the Carpathians now seems to have found his genius of the carpets”. With
exasperation, formulas easily come to me. On the one hand, in retrospect, I
regret them. On the other, they constitute the inevitable consequence of the
permanent rejection of any discussion. I can but ask for forgiveness. You must
see there the reflection of the bitter stubbornness of a lawyer who had always
defended a high ideal of this Institution in his multiple past roles, and who
never accepted to abandon it once arrived here.
Ladies and
gentlemen, dear colleagues, fortunately, my stay in this Institution was not monopolised
by these conflicts. Besides these dark episodes, there were also luminous ones,
especially at the judicial level.
However, I shan’t speak
much about these activities. In this too, I have always defended a collective
vision. In this framework, one must try to listen to various opinions, and find
the necessary compromises. Ironically, I was even reproached, occasionally, for
being too flexible. With this modest approach, I have been happy to contribute to
the jurisprudence of this Institution, which I have always defended with
conviction during the whole period.
In the early years,
I was also pleased to discover a General Court (then CFI) which, at the time,
was making important and appreciated contributions to European law, that were
seriously debated inside and outside. A court which, at the time, enjoyed an
extremely strong external representation, as strong as the Court of Justice’s.
A General Court which, at the time, was not afraid of taking clear institutional
positions and especially was not afraid to defend them whenever necessary.
The passage of time
has allowed us, me and others, to measure even better the debt we had for this
to Bo Vesterdorf, the President at the time, and beyond, to Jose Luis da Cruz
Vilaca, the founding President. These men had great ambitions for their Court.
They represented it brilliantly outside thanks to many high-level conferences
and publications. And finally, they shared complete integrity with their colleagues.
I wanted to tell them today my great friendship and respect.
My team has
produced very good judicial results, both quantitative (many closed cases) and
qualitative (very few contests thereafter). Nevertheless, I have been mainly an
orchestra director. These very good results were possible only thanks to the
contribution of many people.
First, the members
of my cabinet, without which very little would have been possible. They know my
esteem, and even my great friendship for them. But this is not the place to expand
on this.
Second, the
personnel of the other cabinets. I have forged with them many relationships of
sympathy and even trust. They have sometimes discreetly encouraged me. I have
been touched by this support, especially in difficult times. Whenever necessary,
I tried to defend the qualified persons (but not necessarily the others), to
provide them with the required IT tools, and to put an end to the long
uncertainty over their future in which they are maintained.
Third, the registry
personnel. It comprehends general highly qualified persons, well led by two
successive, and very talented, registrars. The registry’s personnel rendered
many services to us. On my side, I always defended its staff needs, its IT
needs (this provoked occasionally some kind of administrative Vietnam), its
role as a full actor in procedural decisions, and finally its need for serious judges’
attention. This is an essential synergy, still too little analyzed.
Fourth, the Institution’s
administrative services. They also comprise in general highly qualified
persons, and they do not always work in easy conditions. We must have the
courage to recognize that too often here the administrative personnel are first
considered as an adjustment factor for the judges’ comfort. Let us remember the
very symbolic story of my colleague and friend Irena Wiszniewska on the day of
her arrival when someone told her, “you are a judge, so you can do anything”.
Furthermore, local leaders pay much attention here to the high appointments
(they make too many of them, and too often eugenic). However, they are less
interested in the living conditions of the rest of the machine. Whenever
necessary, I have tried to fight this tendency too, though this was far from
being popular.
Fifth and last, I
must acknowledge my great debt to my colleagues of the General Court. Dear
colleagues, all these years, you have been drowned in memoranda and
interventions on multiple issues (often administrative and legislative, but not
exclusively). This transparent and participatory management did not correspond
at all to the local genre. In fact, it was its complete opposite. Yet you have
quickly tolerated this and even very often supported its administrative and
legislative conclusions.
One of us said to
me one day, and I suspect it reflects a prevailing sentiment, “You are a
necessary evil”. To be honest, this is not the formula that I should have
preferred. Nevertheless, on the whole, it is better to be seen as a necessary
evil than as a decorative invertebrate.
Today, I leave this
place with satisfaction. Our court benefits from strong results, accurate
statistics, a productive observatory, a position on the future of the EU
judicial system, another one on the future of the Institution’s governance,
detailed analyses on the imperatives of intelligent legislative reform, a new
streamlined organization, many IT advances, greater transparency in the
allocation of cases, better awareness of the limits of external activities, and
a detailed strategy for the registry in a new court. Future observers will have
all necessary documents to determine where most of these changes came from. In
any case, this would not have been possible without your individual and
collective involvement.
Unlike many, it is
our plenary deliberations that I shall miss the most. Although they were often
long and sometimes difficult, they taught me immensely, and I cannot thank you
enough for that. I tried to prepare them systematically. In fact, one of my
great corridor neighbours accused me ritually of spending too much time in the
office of my colleagues. To that I always replied, “I’m not like you, I do not
hate my colleagues, and I even love them”. And that’s true. Beyond the
individual characteristics of your personalities, you represent the diversity
of Europe, which has always been one of the great charms of my life.
At this hour, I
would like to express one hope. During the past year, the management of this Institution
has seen some improvements. However, problems remain. Above all, the Institution’s
governance system remains out-dated, obscure, and devoid of sufficient controls.
So I hope that others will continue to take initiatives in these multiple
domains.
My grandfather,
Fernand Dehousse, who provided my education, taught me a great lesson. He was
in another era the first rapporteur of the first European Parliament on the
first draft European Constitution. During the war, due to his previous
writings, the Nazis forbade him from all professional activities. For four long
years, he remained home, starved and wrote numerous tracts and documents (some
of them advocating the integration of Europe). He always told me, “an idea
never dies so long as it finds one defender”. Today, I’d like to convey the
same lesson.
There are many
beautiful ideas in our European Treaties, even if this is less understood
today. One of the most beautiful is precisely our Institution. However, the
European Treaties have not created the Court; they have created the Court of
Justice. The Court is not, contrary to a popular local illusion, a value in
itself. It is only the instrument of a value - justice. Judges are not above
the law, or next to the law. They are, more modestly, its first servant. This
must always be remembered, especially in a place when an official says on arrival,
“you are a judge, you can do anything”.
Especially, when
judges hold exorbitant powers - as here – their legitimacy exists only if they
impose on themselves the same constraints that they impose on others. Nothing
is worse than a judge who ends up taking him(her)self for justice, except the
same, when exercising administrative and legislative powers. Indeed, then, whatever
his/her title and technical capabilities, such a judge becomes a subversion of
the separation of powers.
Consequently, I
hope that in the future, whenever necessary, some of you will go on defending my
fundamental concern during this whole period. According to the European Treaties,
it is judges who are the servants of justice, and not justice which is the
servant of judges - and even less of some judges - and even less of a single
judge, whoever s/he is.
With that, ladies
and gentlemen, dear colleagues, it remains to wish good luck to everyone in this
Institution, whatever their role, in work that remains essential, especially
now, for the future of our European continent.
For your humble servant,
it is now the time to say goodbye and express my gratitude to those who
supported me (let's be honest, in all meanings of the word), but above all
those who assisted me in many ways, encouraged me and upheld my multiple
initiatives to build together a better institution. Frankly, this has not
always been an experience which inspired enthusiasm. However, thanks to you, it
has always been, and this is essential, a humanly pleasant one. Therefore, very
sincerely, my deepest thanks to all of you.
Franklin Dehousse
(19 September 2016)
Barnard & Peers: chapter 10
Photo credit: http://blog.mslgroup.com/eu-us-personal-data-transfer-after-the-european-court-ruling/
