Brussels, 20/11/2003 (Agence Europe) - At the discussion forum organised in Brussels by the European Federalist Circle of Fernand Herman, Melchior Wathelet, who was a judge at the European Court of Justice until 6 October, gave his ideas on the difficulties encountered by the European Court of Justice and the future of the Court in the face of the major challenge of enlargement to ten new Member States.
The Court, he said, is the "most revolutionary of the institutions". It is a "very specific" institution, a "sui generis" construction which, through its case law, has established three main principles: the primacy of European law over national law, the possibility for citizens to use European law directly (direct effect) and the financial responsibility that falls on Member States if they fail to comply with European law. It is, he went on to explain, not only a constitutional court - it can cancel directives and take action against Member States -; but also a high court as it has been "at the top of the pyramid" since the creation in 1989 of the Court of First Instance, and, with the Treaty of Nice, of the future chambers of jurisdiction (called in the Convention "specialised" courts). It is also, however, something else thanks to the preliminary ruling mechanism, cooperation between the national judge who applies European law and the Court of Justice to which questions of interpretation of Community law are put.
The Court is nonetheless the institution which we hear the least about, Melchior Wathelet said. In its preface, the Convention speaks of the balance between the three institutions (Council, Commission and Parliament), which is "not very kind to the Court" as, despite it all, it "comes out better than the Court of Auditors" which is neither in the preface, nor in the chapter on the "institutions", but relegated to that on "other institutions and bodies". It was the Treaty of Nice that mainly brought reform to the Court (for an overview of this reform see EUROPE of 14 January 2002). The Convention has made semantic changes (in French) by calling the "Tribunal de première instance" the "Tribunal de grande instance", as it had requested, as the creation of specialised courts no longer meant jurisdiction of "première instance". So "they're happy", Mr Wathelet said.
The Convention does not change the appointments system, even if this system is the subject of a number of proposals, like that of appointing judges for a 12 year renewable term or for life. Judges will therefore be appointed as they are now, for six years, except that their appointment will be preceded by the opinion of an advisory committee composed of former members of the Court and national judges and a jurist proposed by the European Parliament, Mr Wathelet recalls. In his comments, the former judge, who states he regrets not having been kept at his post by the Belgian government (Ed.: he was considered by many as the favourite in the running for the institution's presidency but was pipped to the post by his compatriot, Koen Lenaerts) says: - Member States remain "very jealous" of their prerogative to appoint their judge. In fact, by tacit agreement, each Member State proposes a judge who is accepted by the others under conditions of reciprocity. In this system of appointment by the governments, the Court has shown its independence, "even though the system is dangerous", Melchior Wathelet said. He added, however, that he had opposed a system of hearings before the European Parliament after the fashion of the American "hearings".
The former judge and politician from Belgium then looked at length at the linguistic status of the Court, that everyone finds untenable, although the Court has gained in competence and has more matters to deal with in every field. It is an absurd situation in which 40% of the Court's personnel are interpreters and translators. Some are real "geniuses" who translate from many languages towards their own, but they will not be able to follow the linguistic combinations that will grow in number when, in May 2004, nine new Member States out of ten (except Cyprus) each arrive with a new language of their own. Work with the help of "pivotal" languages must be envisaged but there is the problem of reading Community texts in several languages when "these are written faster and faster and less and less well", where "copyright" is translated by "right to copy" or "usual place of residence" by "habitual residence". He also remarked the influence of an official's nationality showing through when that official writes the original text. For example, the English define all the terms in the first article of a text , a tendency that the other officials have followed. Mr Wathelet also spoke of linguistic complications arising from the "lack of good will on the part of Member States" to come to an agreement, so that political agreements are "sometimes voluntarily ambiguous". He went on to cite the case of four linguistic versions which speak of "excise and VAT", and four others of excise "or" VAT. Not to mention the two-speed Europe, the Court's "nightmare": the Schengen agreements do not have the same value in all Member States, the United Kingdom and Ireland only being bound "when they want to be".
Italians including the French which was the language of three of the six founding countries. "With enlargement, we will speak about it again", he said predicting other difficulties as well. Up till now the European Community has integrated between them similar legal systems from the different countries, which is now not the case and in May 2004, for the first time, the majority of judges will not be new: ten of the judges coming from the 10 new Member States and three new judges were sworn in on 6 October 2003, thirteen judges out of twenty five.
The Court is a little known institution, admitted participants at the meeting, with one of them even quoting an Italian Minister who said to a Member of the Court: "how is it going in The Hague", we know well that it is in Luxembourg: Editor's note). Melchior Wathelet said that "citizens now know that thanks to European law they can go to their insurance fund for reimbursements for spectacles bought in another country or obtain a student grant". In conclusion, "But the best known institutions are the most criticised". Therefore, "in order to live happier, live hidden". All publicity is not necessarily good" (reference, according to observers the policy of the former President of the Court, Gil Rodriguez Iglesias, who aimed to look after the image of the Court in the eyes of the outside world, a policy that not everyone could have approved at the institution).