Unlocking the doors of the European Court of Justice: Insights from the ABBL/EBF Conference

Key Insights from the Conference’s Opening Remarks:

1. Emphasizing Open Dialogue: The conference’s opening underlined the significance of fostering an environment of active and open conversation. Attendees were encouraged to actively engage in discussions by posing questions and actively participating in the discourse.
2. Respect for Confidentiality: To promote unrestricted idea exchange, the conference adhered to the Chatham House rules, safeguarding the privacy of contributions.
3. EU Directive Transposition: A practical case study was presented to illustrate the intricacies of translating. EU directives into national law. The increasing number of preliminary ruling requests reflects the EU’s growth both geographically and thematically.
4. Challenges Confronted by Member States: A noticeable trend was noted where EU member states were often caught unprepared by Court of Justice decisions, even in the face of potential legal repercussions. This trend coincides with a reduction in member state involvement in preliminary ruling procedures when they are not directly impacted.
5. Role of the EU Commission: The European Commission’s pivotal role in offering comments on each preliminary ruling request was highlighted. However, the Commission grapples with logistical challenges due to the EU’s linguistic diversity and the multifaceted nature of its policy areas.
6. Incorporating Stakeholder Input: The necessity for involving a broader array of stakeholders in preliminary ruling procedures was a prominent theme. The notion of “Better Decisions” was introduced to enhance participation and foster well-informed judgments.
7. Transparency and Constructive Dialogue: The conference underscored the critical importance of a transparent dialogue between EU institutions and civil society, aligning with the principles outlined in the Treaty on European Union.

This introductory segment of the conference, presented by Dr. Mathias Otto, Chairman of the Legal Committee of the European Banking Federation, set the stage for a deeper exploration of the challenges and prospects within the ever-evolving EU legal landscape, marking a significant stride towards more informed and inclusive decision-making within the EU.

Is access to the European Court of Justice for bystanders in preliminary ruling necessary and how would the interests of the parties to the case be taken into account?

• Moderator: Mr Piotr Galazka, Director of Representation Office in Brussels of Polish Bank Association
• Mr Daniel Dittert, Head of Unit at the Court of Justice of the European Union
• Dr. Kathleen Gutman, Référendaire, Chambers of Advocate General Ćapeta, Court of Justice of the European Union
• Prof. Dr. Jens-Hinrich Binder, LL.M. (London), Eberhard-Karls-Universitaet Tuebingen, Germany
• Ms. Pamela Hansson, Partner at Kastell, Stockholm, Sweden

The panel discussion revolved around the question of whether access to the European Court of Justice (ECJ) for bystanders in preliminary rulings was necessary and how the interests of the parties to the case would be taken into account. Here are the key points discussed in the panel:

• Routes to Contribute to Proceedings: The panel noted that in direct actions, direct intervention was possible with a generous approach by the ECJ. However, preliminary rulings were different as they arose from specific proceedings in national courts. Therefore, they deserved a separate approach, highlighting the need for a distinct consideration of this issue.
• Terminology and Role Clarification: There was a need to clarify the terminology used to describe individuals or entities seeking access, such as interveners, interested third parties, bystanders, or amicus curiae. Additionally, the role these parties would play in the proceedings needed to be defined more explicitly.
• Desirability of Access: The panel discussed differing views on the desirability of allowing bystanders access to the ECJ in preliminary rulings. Some participants saw it as an opportunity to enhance transparency and promote a better culture of discourse. Others viewed it as a potential burden or intrusion into the proceedings.
• Representation of Public Interest: Consideration was given to the extent to which public interest was already represented in the current rules through Member States, the European Commission, EU agencies, and the Advocate General. This raised questions about the necessity of additional avenues for public participation.
• Impact on Duration and Language: Panelists discussed the potential impact of allowing bystanders on the duration of proceedings and language issues. Increased participation could lead to longer proceedings, and language barriers might need to be addressed.
• Pros of Allowing Access: The panel noted some potential benefits of allowing bystanders in preliminary rulings, such as enhancing transparency, gaining broader acceptance of judgments, and fostering a better culture of discourse and discussion.

In summary, this panel addressed a complex issue that touched on the balance between transparency and efficiency in the legal process. It highlighted the need for clarity in terminology, consideration of the interests of the parties involved, and the potential pros and cons of allowing bystanders access to the ECJ in preliminary rulings.

How could access for bystanders be offered: self-invitation or invitation-only?

• Moderator: Ms. Doris Zingl LLM, Head of Legal Department, Austrian Banking Association
• Prof. Dr. Séverine Menetrey, Professor at the University of Luxembourg
• Mr. Marc Mossé, Senior Counsel at August Debouzy, Paris, France
• Prof. Dr. Friedl Weiss, LL.M. (Cambridge), Professor ret. at the Department of European, International Law and Comparative Law, University of Vienna Austria

The panel discussion centered on how access for bystanders could be provided, either through self-invitation or invitation-only mechanisms. Here are the key points discussed in the panel:

• EU’s Rule of Law Foundation: The panel recognized the European Union’s foundation on the rule of law, which has evolved through legal processes, with the European Court of Justice (ECJ) playing a crucial role in this evolution.
• Amicus Curiae Focus: Amicus curiae entities were noted to be primarily interested in the legal principles established after a judgment, rather than the specific case itself.
• Distinguishing Unsolicited Comments: Participants discussed the need to distinguish between soliciting information and unsolicited comments, raising questions about the purpose of such contributions and who benefits from them.
• Transparency vs. Discreet Inroads: The debate covered the balance between transparency in contributions and the potential for discreet, selective avenues, often referred to as “porte étroite.”
• Risk of Overwhelming the Court: Concerns were raised about the possibility of inundating the court with irrelevant or excessive contributions, which could undermine the purpose of such access.
• Risk of Misguided Contributions: The panel recognized the risk of well-intentioned but misguided contributions, often referred to as “false friends.”
• Value of Non-Lawyers: There was a discussion about the value of allowing non-lawyers, such as scientists or lay judges, to contribute, bringing fresh perspectives and expertise to the process.
• Criteria for Admissibility: The need to define criteria for the admissibility of contributions, which may often be non-legal but helpful in properly applying the relevant legal rules, was emphasized. These criteria could include new perspectives, scientific insights, and impact assessments.
• Culture and Attitude: The panel considered the culture and attitude required for constructive contributions, including a willingness to question one’s own views and accept the possibility that other arguments might be valid. The question of whether dissenting opinions should be allowed was also raised.

In summary, this panel delved into the complex issue of how to facilitate access for bystanders and the challenges and considerations associated with self-invitation versus invitation-only mechanisms. It highlighted the need for careful criteria, transparency, and the potential value of diverse contributions, while also recognizing the risks of overwhelming the court and misguided contributions.

In his closing remarks, Dr. Mathias Otto, Chairman of the Legal Committee of the European Banking Federation, reflected on the event’s open-minded debates and discussions. He drew a parallel with the spirit of ancient Greek marketplaces, emphasizing the exchange of arguments and the quest for better insights. Dr. Otto underscored the event’s aim to bring the European Court of Justice (ECJ) closer to society, enhancing its reputation and acceptance. The panels explored diverse perspectives on the necessity and challenges of offering access to bystanders in legal proceedings. Overall, the event celebrated the value of disciplined rhetoric and open dialogue, essential for the continued development of the European legal landscape.