Weekend Edition Nº35 by eulawlive

Nº35

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2020

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Allan Rosas

FIVE BOOKS WORTH REMEMBERING Luigi Malferrari and Alessandro Spina

A VIRTUAL COURT IN LUXEMBOURG? THE ISSUES OF DIGITAL TECHNOLOGIES AND WEBSTREAMING FOR HEARINGS BEFORE THE CJEU

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Five Books Worth Remembering Allan Rosas

between states; in war individuals are enemies wholly by chance, not as men, not even as citizens, but only as soldiers’. And ‘as soon as they lay down their arms and surrender, they cease to be either enemies or instruments of the enemy; they become simply men once more, and no one has any longer the right to take their lives’ (3). It is interesting to note that Rousseau purports to base these observations on an idea of custom (can we even speak of customary law?): ‘This principle conforms to the established rules of all times and to the constant practice of every political society’ (4). But he also said that his principles on the nature of war and respect for non-combatants were ‘derived from the nature of things’ and were ‘based on reason’ (5). These ideas were taken up in decrees issued by the French National Assembly relating to respect for prisoners of war (6).

Selecting ve books that have somehow left a mark on my thinking and writing is tricky. I chose to go somewhat beyond law books and so the two rst books that came to mind could be associated with political philosophy and political economy rather than law in the strict sense. My rst acquaintance with Jean-Jacques Rousseau (1712-1778) was during history lessons at secondary school. I remembered becoming somehow attracted to his solitary personality but without really understanding the meaning and relevance of his writings. There was no direct study of his texts, only a paragraph or so in the school textbook. My next meeting with Rousseau came when I started to work on my doctoral thesis on prisoners of war (2). I soon learned that some passages from his Contrat social (1762) were generally considered a milestone in the development of the law of war (later to be referred to as the law of armed conicts or international humanitarian law). In his refuting of the legitimacy of slavery, Rousseau argued that slavery could not be founded on the so-called right to kill the vanquished, as such a ‘right’ could not be derived from the state of war. ‘War, then, is not a relation between men, but

1. Dr.Jur., Dr.Jur. h.c., Dr.Pol.Sc. h.c., Visiting Professor, College of Europe; former Judge of the European Court of Justice (2002-2019), Principal Legal Adviser and later Deputy Director-General, Legal Service, European Commission (1995-2002), Professor of Law, University of Turku (19781981) and Åbo Akademi University (1981-1995). 2. A. Rosas, The Legal Status of Prisoners of War: A Study in International Humanitarian Law Applicable in Armed Conicts (Helsinki, Finnish Academy of Science and Letters, 1976; reprint, Turku, Institute for Human Rights of the Åbo Akademi University, 2005). 3. J. J. Rousseau, The Social Contract, English translation by Maurice Cranston (London, Penguin Books, 1968), pp 56-57 (Book I, ch 4). 4. Ibid, p 56. 5. Ibid, p 57. 6. Rosas (n 1), pp 61-63.

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that he was the favourite source of reference for Robespierre, in the latter’s misuse of the ‘will of the people’ as an instrument of repression and terror, while those who favoured something we would today call constitutional or liberal democracy rather tended to side with the philosophers of the Enlightenment (9).

More generally, while it would stretch the imagination a bit too far to call Rousseau a positivist, what else is the crystallization of the general will than the law in force? That said, issues of legitimacy and natural law are very much present in the Contrat social, which presents as a whole a bewildering and multifaceted discussion of how, in the search for a legitimate and sure principle of government, ‘justice’ and ‘utility’ can be brought together (7). It would take us too far to analyse more fully this remarkable book, so difcult to digest and understand, let alone to comment on Rousseau’s other writings, such as Émile (8).

Second, for someone like me taking an interest in the law of war, it is to be regretted that Rousseau kept to his promise not to complement the Contrat social by a study of public international law, including the ‘rights of war and conquest’. With a surprising While it would stretch (perhaps ironic?) touch of Let me only make two the imagination a bit modesty, he noted that ‘all short observations: First of all, I nd it quite overtoo far to call Rousseau this would represent a new subject too vast for my weak blown to consider Rousa positivist, what else vision’ and that ‘I ought alseau as a prelude to Robesways to keep my eyes xed pierre (1758-1794) and is the crystallization of on matters more within my Stalin. The famous lines in the general will than range’ (10). Particularly inteContrat social on forcing resting would have been to citizens to be free is an exthe law in force? get more of his views on the planation, based on Rousrelationship between the law seau’s conception of freeof war (ius in bello) and the dom, of how citizens comright to resort to war and the concept of a just pelled to respect the law could still be free: war (ius ad bellum). What we do know is that ‘whoever refuses to obey the general will with regard to the idea of a perpetual peace, shall be constrained to do so by the whole advanced, inter alia, by Abbé de St-Pierre body, which means nothing other than that (1658-743) (whose manuscript Rousseau rehe shall be forced to be free’. That said, Rousluctantly agreed to edit), he was a realist, beseau, although being vehemently opposed to lieving that the princes would not agree to a tyranny and oppression, did not develop a limitation of their quest for external contheory of human rights, nor was he a typical quest and internal domination. Things could philosopher of the Enlightenment. It is true

7. Rousseau (n 2), p 49 (Book I, Introduction). 8. J. J. Rousseau, Oeuvres complètes I – V (Paris, Éditions Gallimard, 1959-1995). 9. See, eg J. Israel, Revolutionary Ideas: An Intellectual History of the French Revolution from the Rights of Man to Robespierre (Princeton, Princeton University Press, 2014). 10. Rousseau (n 2), p 187 (Book IV, ch 9).

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uence on the economy). The concepts of family, private property and the state are nothing eternal and they change over time, in line with changing technological and economic realities. And a propos the discussion about Rousseau’s approach to human rights, the last pages of Engel’s book can in my view be seen as a window towards social democracy rather than Marxist-Leninist and Stalinist interpretations.

change ‘one day’ if it became possible to create a confederation of sovereign peoples and their republics (11). I have dwelled on Rousseau and Contrat social as for me, this is the most important reference. I can be much briefer with regard to the four other books to be considered. The next book on my list is not a law book either, although, as is the case with Contrat social, it is relevant for an understanding of the development of the law. Friedrich Engels (18201895) was Karl Marx’s (1818-1883) companion but had his own prole, including with his book, partly based on studies by Lewis H. Morgan, on the origin of the family, private property and the state (Der Ursprung der Familie, des Privateigenthums und des Staats), which appeared in 1884. During my student years, I bumped into a Finnish translation of this anthropological and politicophilosophical study and was abbergasted by the radicalism of the main thesis (12). While the book probably contains some errors and doubtful conclusions, as pointed out by later anthropologists and others, it became an important source for my understanding of the development of law and legal institutions: They are driven by material conditions rather than the other way around (which is not to deny that law may, to a certain extent, have an in-

After this dose of ‘dialectical materialism’ the time was ripe for some pure law. The remedy, of course, was Hans Kelsen’s (1881-

I remember thinking that if you place yourself ‘inside’ the legal system, the Pure Theory of Law had something essential to tell us

1973) Pure Theory of Law (Reine Rechtslehre), initially published in 1934 but as a rewritten second edition in 1960. I was invited to study it as a textbook, as part of my LLM studies. This was a Finnish translation which my Professor of Legal Theory, Otto Brusiin (1906-1973) branded as very weak (13). He ne-

11. In this respect, Rousseau could be said to have preceded Kant, I. Kant, Zum ewigen Frieden. Ein philosophischer Entwurf (Königsberg, Friedrich Nicolovius, 1795). See A. Rosas, ’J. J. Rousseau and the Law of Armed Force’ in O Engdahl and P Wrange (eds), Law at War: The Law as it Was and the Law as it Should Be. Liber Amicorum Ove Bring (Leiden, Martinus Nijhoff, 2008), p 219 at pp 227-228. 12. F. Engels, Perheen, yksityisomaisuuden ja valtion alkuperä – Lewis H Morganin tutkimusten perusteella (Moskova, Kustannusliike Edistys, 1970).

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‘ascending’ (‘apologetic’) argument based on concreteness (State behaviour). It has probably contributed to a growing scepticism on my part about the relevance of inter-state public international law. While it is not dead (15), the so-called international legal order is quite fragile, as recent developments tend to demonstrate.

vertheless taught us that while Kelsen was brilliant, Brusiin himself favoured a more anthropological and sociological approach to law. I remember thinking that if you place yourself ‘inside’ the legal system, the Pure Theory of Law had something essential to tell us. That said, I was more inclined to follow my teacher in that law cannot be understood outside its societal context (not that Kelsen would necessarily have objected to that explanation, either).

What to do if you lose faith in traditional public international law? For me, the international protection of human rights offered a certain escape route, probably as there is in this eld a close relationship between universal, regional and national norms and mechanisms (at national level and today also with EU level branded fundamental rights) and this constellation gets you closer to constitutional and administrative law (16). Another route, which in fact proved quite resilient, was offered by European law, and EU law in particular. Numerous are the publications I could cite which have helped me on this path. I have chosen to name a book which from a Finnish perspective was almost

As noted above, my doctoral studies brought me to public international law and the law of armed conict in p a r t i c u l a r. Thus it should come as no surprise that my fourth choice will be from this discipline. My favourite, then, would be my compatriot Martti Koskenniemi’s doctoral thesis From Apology to Utopia (14). This by now classical book is a brilliant demonstration of how international lawyers constantly oscillate between a ‘descending’ normative (and thus ‘utopian’) argument and an

13. H. Kelsen, Puhdas oikeusoppi (Porvoo, Werner Söderström, 1968). 14. M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Helsinki: Finnish Lawyers’ Publishing Company, 1989). 15. A. Rosas, ’The Death of International Law?’ 20 (2009) Finnish Yearbook of International Law (Oxford, Hart Publishing, 2011), p 215. 16. To mention but one publication which brings out the interaction between these levels see T. S. Orlin, A. Rosas and M. Scheinin (eds), The Jurisprudence of Human Rights Law: A Comparative Interpretative Approach (Turku/Åbo, Institute for Human Rights, Åbo Akademi University, 2000).

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Another route, which in fact proved quite resilient, was offered by European law, and EU law in particular

avant-garde: My Turku colleague and friend Kari Joutsamo’s (19462001) doctoral thesis on the preliminary ruling mechanism (17). It is quite remarkable that the book appeared in 1979, thus 16 years before Finnish accession to the EU and at a time when joining the EU was in this country not even thinking about the unthinkable. This book, together with a number of subsequent publications of the same author, consolidated his position as the rst leading EU law expert in Finland. In a book, published in his honour after his untimely death in 2001, the inscription reads: ‘[he] brought European law to Finland’ (18). We are many who have tried to follow him on this path.

17. K. Joutsamo, The Role of Preliminary Rulings in the European Communities (Helsinki, Academia Scientiarum Fennica, 1979). 18. Yritys eurooppalaisessa oikeusyhteisössä. In Memoriam Kari Joutsamo 28.11.1946 – 17.1.2001 (Turku, Faculty of Law of the University of Turku, 2002).

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A virtual court in Luxembourg? The issues of digital technologies and webstreaming for hearings before the CJEU 1

Luigi Malferrari and Alessandro Spina

new trends (new is cool!) and the cautious reaction to what is new, unknown and thus questionable. By taking a more neutral viewThe debate about the use of digital technolopoint, our focus will be rather on how digital gies for oral hearings before the Court of Justechnologies should be used. In this reectice of the EU (CJEU) has been long in the tion, we will be reminded (3) making. Physical restrictions that any new technology is not a due to the COVID-19 pande‘take-or-leave-it’, but rather a mic have pushed even further tool that can and must be shathe reliance on digital tools to ped according to the ends purHow should digital enable remote participation in sued. Therefore, what are these the hearings. Moreover, the technologies be ends in the procedures before web-streaming of CJEU heaused at the CJEU? the CJEU? And how should therings, either live or as recorded se technologies be moulded acles available on the internet, cordingly? has been recently proposed more vocally (2). On the other The judicial process and hand, there is also a natural resistance against the introduction of new techits objectives nologies that would bring radical changes to the way in which hearings are held as this It is not by accident that it is called the Court would ultimately have an impact on the adof Justice of the EU. Its mission is to bring ministration of justice. We will try to navigajustice (4), and that is one of the main reasons te between the unconditional enthusiasm for why European integration has been broadly

Introduction

1. Both authors are members of the Legal Service of the European Commission and lecturers at various universities in Europe. They can be reached at malferrari@gmx.net and alessandro.spina@protonmail.com. The views expressed in this article are solely those of the authors and do not necessarily reect the ofcial position of any Institution. The present article partly builds on Luigi Malferrari, Corona-Krise und EuGH: mündliche Verhandlungen aus der Ferne und in Streaming?, EuZW 2020, 393. 2. See for example A. Alemanno and N. Petit 3. The idea that technologies are not ‘neutral’ but necessarily embody values and political choices is a well-established concept in Science and Technology Studies (STS): a seminal contribution is: L. Winner, Daedalus, Vol.109, Number 1 Modern Technology: Problem or Opportunity? MIT Press, 1980, pag. 121-136. 4. Cf. Commission v Poland (“rule of law”), C-192/18, EU:C:2019:924, paras. 105 et seq.

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a successful undertaking (5). Justice is of course not an uncontroversial concept. For the purposes of the present article it sufces to consider that justice builds substantially on the concept of process (stemming from the Latin processus, from the verb procedere: to advance, to appear, to proceed). That concept entails in particular the effective right of defence and due process. Procedural rules for the written and oral part of the judicial proceedings are laid down to specify the principles underlying the judicial process, such as effectiveness of defence, parity of arms, good administration of justice, publicity of the process, and serenity of Judges must the debate.

plays a public role (6). However, publicity correctly understood - does not entail that all aspects of the judicial process are accessible to anybody at any time: the limitations to the principle of publicity aim precisely to preserve the parties’ equality and the judges’ impartiality in the process (7).

It must be stressed that the equality of parties and impartiality of judges are principles so fundamental for the judicial activity (8) that they are entrenched into the very architecture and real life of courtrooms. The fact that judges are seated at an equal distance from the parties in the courtroom is a tangible remain expression of their being super partes: despite the digital detached from the e ra and the pseudoTransparency is not a democratic mantra of closeparties in order to synonym for publicity ness to citizens, judges must – and none of them is remain, and to remain detached from the an absolute value parties in order to remain, appear, impartial. and to appear, impartial (9). The publicity of the proImpartiality of judges cess is, of course, one of means that the judges’ perthe principles underlying ception of the parties must the judicial process. That not be biased in any way (10): for example, principle pursues the interest of good admithe obligation (in principle) for legal counsel nistration of justice. Moreover, seen from to wear a gown is a (positive) antithe perspective of an individual’s right to transparency mechanism, used to conceal know, coverage of the judicial proceedings the differences between the parties for the by the media is protected by virtue of the judges’ eye and render the parties equivalent freedom of expression, which in turn also in the judges’ perception. 5. J. H. H. Weiler, The European Court, national courts and references for preliminary rulings – The paradox of success: A revisionist view of Article 177 EEC, in: Schermers H. G. et al. (ed.), Article 177 EEC: Experiences and Problems, 1987, pages 366 et seq.; W. Mattli and A.-M. Slaughter, The Role of National Courts in the Process of European Integration: Accounting for Judicial Preference and Constraints, in: A.-M. Slaughter, A. et al. (ed.), The European Court and National Courts - Doctrine and Jurisprudence, 1998, pages 253 et seq.; D. Kelemen, The Court of Justice of the European Union in the Twenty-First Century, Law and contemporary problems, 2016, pages 117 et seq. (118) 6. See Anna K. Bernzen, Gerichtssaalberichterstattung, 2020, pages 11 et seq. and 97 et seq. 7. Cf. Bernzen, cit Cf. also R. Susskind, Online Courts and the Future of Justice, 2019, page 204. 8. See Ordre des barreaux francophone et germanophone C- 543/14, p. 40-41. 9. See, to this effect, Minister for Justice and Equality, C-216/18 PPU, para. 66. See also Piero Calamandrei, Elogio dei giudici scritto da un avvocato (Ponte alle Grazie, 2nd edition, June 1999), pag. 341-342. 10. See ex multis Commission v Poland, Case C-192/18, ECLI:EU:C:2019:924, paras. 110-111.

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and commented on in the social media. However, the full availability on the internet of oral hearings would entail not only a quantitative but also a qualitative change in the administration of justice: the oral hearing would partly ‘leave’ the courtroom and join the world of ‘likes’ and automated trolling. That may at least indirectly lead to a much stronger inuence on the bench’s and the parties’ way of participating in the oral hearings. In particular given the possibility to manipulate social media (13), the risk of undue inuence on justice is real and present.

In judicial procedure, there is a ne balance between transparency and the protection of other legitimate interests such as those related to the parties’ fundamental rights and the good administration of justice (11). In some parts of the procedure, transparency must be minimised or even reduced to zero because otherwise there will be a risk to judges’ independence and the good administration of justice. By the same token, the discussion on how to make publicly available on the internet the oral part of judicial proceedings must not only take the advantages into account, but also the risk for the judicial independence and for the law being the compass of judges’ decisions. Publicity and transparency in judicial proceedings are not necessarily positive per se, in particular in the galloping electronic era where the social media increasingly dominate the social, economic, cultural and political discourse (12). It is true that since members of the bench and their clerks live in the current world, their behaviour may already now be partly shaped and inuenced by how ‘their’ cases are followed

Technology must be moulded according to the values pursued in the judicial process – not vice versa In light of the foregoing, whereas automatic and unconditional caution is unwise, an unqualied and hasty embracing of the new technologies and fashions seems equally unwarranted. It is rather a fair reconciliation of the different interests at stake that must shape the debate.

The oral hearing would partly ‘leave’ the courtroom and join the world of ‘likes’ and automated trolling.

11. For example, under Article 35 of the Statute of the CJEU, deliberations ‘shall be and remain secret’. 12. M. Kianička, Streaming of hearings: a tough call for the Court of Justice, Weekend Edition No. 13, EU Law Live, 2020. 13. See ex multis Christopher Wylie, Mindf*ck, Random House, 2019.

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The current debate has sometimes revolved Oral hearings from a distance around the question of whether CJEU hearings should be streamed, or whether oral It should thus be ascertained when and under hearings from a distance should be allowed. which conditions CJEU oral hearings That framework of the debate seems to be bishould take place online rather in person and nary and to imply the tacit acceptance of the how to assess the interactions in those choices made by software architects. For hybrid procedures in which some parties apexample, as regards oral hearings heard repear before the CJEU physically and others motely, the software features can enable sionline. The possibility for remote oral heamultaneous visibility of all the parties attenrings before national courts is laid down, in ding a hearing or the limited visibility of the certain cases and under certain conditions, speaking party or judge. Different platforms in EU legislation itself (14). The CJEU has set may provide a very wide spectrum of public up the possibility of virtual access to a hearing: for oral hearings for some parexample, it could range ties during the COVID-19 from exclusively audio accrisis (15). It has made use of cess by streaming, to only a dedicated own software, A more afﬂuent party what is being said in the so that control of users’ data courtroom, to access to remains in the hands of the with technological images either from a staCJEU’s administration (unsuperiority may tilt tic camera or dynamic calike the use of third-party meras and edited images commercial software that the parity of arms (which would make the would enable the service streaming of a hearing siproviders to manage trafc milar to a cinematograpdata). hic movie). Should the practice of virThe choice is not simply of a technological tual oral hearings be extended beyond the nature. In fact, any technology (or software COVID-19 crisis to normal times? It is true platform) always embeds value-laden choithat at least for some parties personal preces. But the question is about the kind of techsence may be impractical in non-emergency nology and the conditions of use that are times as well; problems linked to the conright for a digital transformation of judicial nection stability and the effectiveness of mulhearings with a view to pursuing justice in tilingual interpretation may probably be solthe light of democratic values and by taking ved satisfactorily in the long-run (16). Howeinto account the existing risks. ver, at least in normal times a physical oral hearing has several clear advantages from the viewpoint of the proper administration

14. M. Kianička, Streaming of hearings: a tough call for the Court of Justice, Weekend Edition No. 13, EU Law Live, 2020. 15. M. Kianička, Hearings 1.1: remote appearance before the Court of Justice, Weekend Edition No. 20, EU Law Live, 2020. 16. Cf. Susskind, cit., in particular pages 25 et seq.

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For those cases where it is decided that a digiof justice. For example, the technological sutal CJEU oral hearing is in the interest of jusperiority of one party (in particular if aftice, the use of third-party platforms such as uent) over the others may tilt the parity of Zoom or Webex would be questionable. arms; that risk is, by contrast, reduced in Whereas the CJEU has not used any of thophysical hearings. Even if the less afuent se, the EFTA-Court has done so. That is proparty may well yield to the proposition to hablematic. First, the technical features of thove a digital oral hearing with a view to minise platforms are aimed at maximising trafc mising short-run costs, proper justice should data (and the relative commercial value) of not always be at the parties’ disposal; mothose private companies owning and runreover, alternative solutions (such as a fully ning them. Second, it is legally doubtful effective nancial aid) are available to nonwhether the use of an essential public serviafuent individuals. Another issue is linked ce enabling access to justice can be based on to the fact that there is an obligation for rethe terms and conditions of presentation by indepenuse of technology (and their dent counsel before the data collection practices) imCJEU: (17) could the compliance with that obliga- It is legally doubtful whether posed by private companies (19). tion become more difaccess to justice can be cult if the oral hearing taAs noted above, a different kes place digitally and based on the terms and and more appropriate path thus it is impossible for conditions imposed by has been followed by the judges to observe all the CJEU, which has so far details of counsel’s behaprivate companies like used its own dedicated platviour? The parties are furtZoom and Webex. form for remote participahermore unable to obsertion in oral hearings. Even ve the Judges’ (save for in the case of a dedicated the president’s) and the tool, technology must be moulded in such a Advocate-General’s behaviour (18). It is also way that the values and objectives underlto be ascertained which changes must be maying the judicial process are furthered and de to procedural rules created for in-person are not put at risk. Therefore, the question is hearings as some of them may be ill-suited as follows: which features should technolofor virtual hearings (given for example the gical tools possess in order to be used for the additional difculties related to zoom fatioral hearings held remotely? It is necessary gue and a decrease in attention). to stress here again that it is not a purely tech-

17. Article 19(5) of the Statute of the Court of Justice. 18. Marc-André Gaudissart, La Cour de justice de l’Union européenne face à la crise sanitaire, Revue des Affaires Européennes, N° 1/2020, p. 97-107 (106). 19. L. Kirchner, How Fair is Zoom Justice?, published on the online media outlet Markup on 09/06/2020 available here 20. This question is directly linked to the far bigger ethical and legal issues of the fact that in the cyberspace “code is law”: L. Lessig, Code and other laws of the cyberspace, Basic Books, New York, 1999.

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nical question, but rather a policy one (20). In fact, the devil is in the technological detail: think of how during the corona crisis the technology used for digital meetings of the EU Council of Ministers (allowing a plurality of hidden listeners in the background) has rendered the debate among ministers arguably less frank and less effective.

Using digital technologies to further the dialogue between Courts: making the videos of CJEU oral hearings available to national courts? In addition to the question of digital (namely remote) oral hearings, the possibility of online availability of CJEU oral hearings should be considered in this context. Live streaming, which some advocate, entails the risk that the public (possibly guided by organised interest groups or States) too intrusively enters into the head and heart of judges called to interpret and apply the law, the observance of which must be ensured by the CJEU and national judges (Article 19 TEU). This risk is especially present during the oral hearing: the serenity of the process, the legal (and not political) nature of the debate and the independence of judges would otherwise run the risk of being impaired. That is why live broadcasting of oral hearings of the CJEU has not been practiced (21). Indeed, a general interest and/or an individual’s right is directly or indirectly always at stake in a judicial proceeding (regardless of the formal label or the subject matter). The freedom of expression for interested individuals and jour-

nalists should not be used to circumvent the prohibition of recording and live broadcasting of CJEU oral hearings. During CJEU oral hearings, journalists or other guests in the EU courtroom are not allowed to use electronic telecommunications devices; that would prevent tweeting or live-blogging. In fact, even when journalists and public visitors are located in an additional court room in which the CJEU oral hearing is broadcast live, electronic telecommunications devices (22) are still not allowed to be used and therefore the live-tweeting should in principle not be possible. However, live-tweeting of CJEU hearings has been quietly taking place. Given that the current regime is not particularly clear and coherent, an organic and detailed regulation of the matter would be advisable. Then it is fair to ask whether the videos of CJEU oral hearings should be available after – and certainly not before – the judgment is published on the website of the CJEU, by following the practice used by the European Court of Human Rights (ECtHR) and the US Supreme Court. The possibility to adopt such a feature also for hearings before the Luxembourg court should not be discarded a priori. At the same time, the pros and cons of that practice should be weighed and in any event not be transposed telle quelle. For example, given the special role and position of the CJEU vis-a-vis national judges in the framework of preliminary reference procedure, one possibility would perhaps be to make the recordings of the oral hearings available to judicial authorities that are supposed

21. As regards the regulation in Germany see Bernzen, cit., pages 88-96. 22. There are restrictions as to the use of mobile phones during hearings ‘in order to avoid interference with the interpretation equipment’. 23. The authors are indebted to Friedrich Erlbacher, Legal advisor in the Legal Service of the Commission acting in his private capacity, for the latter idea.

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to apply EU law. An option that could possibly be further explored is that the hearing in preliminary ruling cases is broadcast not online but only to dedicated premises of national courts, equipped with secured facilities co-managed by the Court of Justice and national courts. This could allow parties to plead their case from, say Milan, Athens or Warsaw instead of having to travel to Luxembourg (23). The access for national courts would enhance the quality of cooperation that takes place between the CJEU and national judges pursuant to Article 267 TFEU (preliminary reference procedure). In particular national judges would have the opportunity to better understand the (sometimes scanty) reasoning in the CJEU judgments. They would also have a stronger feeling of belonging to the judicial network provided for under Article 19 TEU. The understanding of infringement judgments and annulment proceedings would also be enhanced: it is after all for all national authorities, including the judges, to ensure compliance with EU law as spelt out by the CJEU in any type of procedure. The dedicated application to be used for that purpose should of course protect the personal data of individuals and also sufciently protect the independence of CJEU members (Judges and Advocates-General). Of course, budgetary constraints and the multi-linguistic character of CJEU oral hearings must be weighed in. It is an open question whether the same or similar accessibility to oral hearings should be given to any interested individual. There are many ofcial languages of the EU that are

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very different from one another. Usually only few of them are available in a given oral hearing and the fact that not all the 24 ofcial languages are available for most of the oral hearings raises difcult budgetary, technical and political issues. The example of other courts is not per se conclusive and in any event relevant differences exist vis-à-vis the CJEU. Given that their mandate is limited to six years and can be renewed, the CJEU members are in an objectively different position to ECtHR judges (whose mandate cannot be renewed) and US Supreme court judges (appointed ad vitam). Increasing public availability of CJEU oral hearings is one of the meritorious goals that must be pursued; however it is not necessarily to be achieved by exposing judicial hearings to the risks ensuing from the unregulated and disproportionate use of new digital technologies. Is a more balanced approach to make an intelligent use of new digital capabilities possible? The answer depends inter alia on the technology, its features and a greater understanding of their impact on the famous ‘serenity’ of judicial proceedings. It is true that compliance with specic rules should be built into the software application to be used. On the other hand, technologies should not be liable to transform the nature of the legal debates taking place during judicial hearings as they are necessary to accomplish justice and avoid transforming the courtroom into theatrical arenas in which the spectators’ ‘likes’ weigh in and legal debates are turned into demagogic propaganda. To avoid the banalisation of legal debates which often concern very technical issues, the risk of ‘facebookisation’ of the judicial activity in the EU should be taken seriously: with thumbs up

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Parties could tend to favour smart-sounding soundbites rather than objective and reasoned arguments.

for one party (which implicitly also entails thumbs down for the other party or for a judge), full internet availability may well carry too many dangers for the democratic values of effective judicial protection and due process before the judgment and even where the oral hearing is made available only after the judgment. In fact, the bench could be tempted to give up asking certain questions which are based on the law but underlie politically unpalatable propositions. Parties could tend to favour smart-sounding soundbites rather than objective and reasoned arguments.

Conclusion The current debate on the use of digital technologies for providing remote participation in CJEU hearings and internet availability has received greater public attention because of the COVID-19 pandemic. However, it is rather the already existing and ever increasing digitalisation of our life that has made this debate unavoidable. Digitalisation presents a positive chance for preserving and enhancing justice in a more and better integrated Europe based on the rule of law. The values pursued in the judicial process must be set out clearly and then the adequate rules and digital tools for remote participation in oral hearings must be shaped accordingly. Not vice versa. When we discuss the digitalisation of judicial proceedings, we should

24. Cf. M. KianiÄ?ka, Streaming of hearings: a tough call for the Court of Justice, Weekend Edition No. 13, EU Law Live, 2020.

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not forget also their sociological aspects: the judicial process in the democratic European tradition is characterised by formalisation through rituals and formalities (24). The ritual character of the oral part of the judicial proceedings has important behavioural consequences. For example, the law is spoken by the judges in the people’s or the polity’s name and by following a specic procedure and formula. Furthermore, the authority of judges is underlined by their architectural higher position in the courtroom (a tradition spanning from the Roman basilica to modern courts). We need to think about the ‘digital architecture’ of the future virtual courtrooms by focusing and preserving those values that have been passed on through centuries of legal civilization. At the same time, the administration of justice should benet from new technologies. To that effect, dedicated public tools should be developed by the CJEU, publicrun and properly regulated. Practical and regulatory challenges lie ahead for the CJEU as regards remote participation in oral hearings. It is with more caution that it should tackle the question of whether and, if so, under which conditions videos of CJEU oral hearings should be made available to the broad public.

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News Highlights Week 26 October to 30 October 2020

Council conclusions on pandemicrelated contingency plan for freight transport Monday 26 October

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The Council of the European Union has adopted conclusions calling on the Commission to ‘swiftly’ draw up a COVID-19 related contingency plan to coordinate freight transport rules at EU-level and provide clear guidelines.

EU sanctions concerning the Republic of Guinea renewed Monday 26 October

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Sanctions against 67 persons and entities concerning the Republic of Guinea, imposed by the EU in October 2010 under CFSP Decision 2010/638, have been renewed until 27 October 2021 by the now published CFSP Decision 2020/1556.

Council agrees on European Climate Law proposal but rejects Commission delegated acts

Boeing case: WTO Dispute Settlement Body formally authorises EU countermeasures against United States

Monday 26 October

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The Council of the EU reached an agreement on a partial general approach on the proposed European Climate Law. The Council however amended the part of the original proposal which would have allowed the Commission to adopt delegated acts.

The Dispute Settlement Body of the World Trade Organization formally authorised the EU to increase its duties on exports from the US worth up to 4 billion dollars, in response to illegal subsidies granted by the US to the American aircraft maker Boeing.

Facebook-case concerning standing of consumer associations to challenge GDPR breaches: preliminary question published

Pending case on compatibility with EU law of French legislation on data retention for market abuse investigations

Monday 26 October

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A preliminary ruling request was published concerning legal proceedings brought by Facebook Ireland Limited against a German consumer federation association, raising issues of standing when the data subject has not specically alleged an infringement, (Facebook Ireland Limited C-319/20).

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Tuesday 27 October

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Two requests for a preliminary ruling were published, concerning the interpretation of several provisions of the Market Abuse Directive 2003/6 and Market Abuse Regulation 596/2014 when applied to the retention of connection data of market operators under investigation.

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ECtHR: Turkish courts breached freedom of expression of MP in defamation matter concerning President Erdogan Tuesday 27 October

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The European Court of Human Rights ruled in Kılıçdaroğlu v. Turkey that Turkish courts breached an MP’s freedom of expression by ordering compensation for tarnishing the reputation of the Turkish President Erdo an in two speeches delivered in 2012.

AG Pikamäe: existence and scope of ‘right to remain silent’ in market abuse administrative proceedings that can lead to criminal sanctions Tuesday 27 October

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Advocate General Pikamäe in DB v Consob (C-481/19) advised that the Market Abuse Directive and Regulation can be interpreted in line with the ‘right to remain silent’, the scope of which corresponds to ECtHR law, in administrative proceedings that can lead to criminal sanctions.

Standing of competitors in annulment actions against Commission State aid decisions adopted under Article 108(2) TFEU: AG Szpunar’s Opinion Wednesday 27 October

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Advocate General Szpunar delivered his Opinion in Deutsche Lufthansa v Commission (C-453/19 P), assessing the rules on the admissibility of actions brought by competitors against Commission State aid decisions adopted following the formal investigation procedure provided for in Article 108(2) TFEU.

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Commission issues Recommendation to Member States on Energy Poverty Tuesday 27 October

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A Commission Recommendation was issued on energy poverty (2020/1563) containing specic suggestions for Member States to tackle energy poverty and advice on allocation of public funds and use of EU funding programmes to that end.

Commission launches public consultation on sustainable corporate governance Tuesday 27 October

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The European Commission launched a public consultation on corporate governance, as it is preparing draft legislation to boost sustainability and human rights commitments in this eld. The consultation is open to all relevant stakeholders until 8 February 2021.

Judicial dialogue in the ECHR context: German Bundesverfassungsgericht joins Superior Courts Network Wednesday 28 October

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The German Federal Constitutional Court (Bundesverfassungsgericht) joined the Superior Courts Network of the European Court of Human Rights, bringing its membership to 93 courts, from 40 States.

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Court of Justice rules that trafﬁc policing costs can not be taken into account to calculate toll rates applied on motorways for heavy goods vehicles

Does EU law prevent national rules banning teaching in a language different other than the national ofﬁcial language? Preliminary question published

Wednesday 28 October

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The Court of Justice ruled in BY, CZ v Bundesrepublik Deutschland (C-321/19) that trafc policing costs cannot be used to calculate toll rates for heavy goods under Article 7(9) of Directive 1999/62, and that the provision could have direct effect. A minor overrun of costs based on incorrect calculation would lead to a breach of the Directive.

Ofcial publication was made of a request for a preliminary ruling (C-391/20) from the Latvian Constitutional Court (Satversmes tiesa) on the compatibility with EU law of Latvian rules imposing Latvian as the only language in Latvian higher education institutions.

Commission’s proposed steps to deal with resurgence of COVID-19 outbreaks

Court of Justice rejects appeal by Pirelli on cartel ﬁne

Wednesday 28 October

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The European Commission issued a Communication on additional measures that it considers ought to be taken in response to the increased spread of the COVID-19 outbreak. Steps cover reduction of tax and customs burdens, ensuring the free ow of goods, and on testing, contact tracing, quarantines and a vaccine.

General Court annuls restrictive measures on Tunisia concerning nephew of former President Ben Ali Wednesday 28 October

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The General Court has handed down its judgment in Ben Ali v Council (T-151/18), annulling several restrictive measures regarding the situation in Tunisia with regard to Mr Slim Ben Tijani Ben Haj Hamda Ben Ali, nephew of the former deposed President.

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Wednesday 28 October

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The Court of Justice rejected the appeal brought in Pirelli & Co. v Commission (C-611/18 P) seeking to set aside part of the General Court’s ruling in T-455/14, based on grounds alleging the infringement of provisions of Regulation 1/2003, general principles, and an error of law in the duty to state reasons.

General Court dismisses former Court of Justice judge’s claim against Court of Justice for non-compliance with access to judgments ruling Thursday 29 October

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The General Court dismissed the action of a former judge at the Court of Justice relating to a partially successful claim for access to documents concerning the former President of the Court of Justice’s exchange with German Ministers. He alleged the Court of Justice overrestrictively implemented the judgment to be executed (Dehousse v Court of Justice, T-857/19).

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Single Customs Window Regulation: new proposal from Commission to digitalise and create a single customs clearance point Thursday 29 October

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The European Commission proposed a Regulation establishing an EU Single Window Environment for Customs that would streamline customs controls for various authorities involved in goods clearance, allowing them to easily exchange electronic information submitted by traders and only once.

Directive on Minimum Wages proposed by European Commission Thursday 29 October

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Glyphosate appeal case brought by Associazione GranoSalus dismissed by Court of Justice Thursday 29 October

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The appeal of an Italian association of wheat producers and consumers seeking the annulment of the General Court’s ruling T-125/18 based on standing and admissibility was dismissed by the Court of Justice in Associazione GranoSalus v European Commission (C-313/19 P).

Council and Parliament reach agreement on revised Trade Enforcement Regulation

The Commission issued a proposal for an EU Directive to ensure that workers are entitled to adequate minimum wages by setting out a framework, which it sees as necessary for the positive social impact and reduction of wage inequality, and fair competition for employers.

Thursday 29 October

ECtHR: States not party to the European Convention on Human Rights cannot bring cases before the ECtHR

Court of Justice dismisses appeal against decision by EMA granting third party access in the course of a marketing authorisation application

Thursday 29 October

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The European Court of Human Rights declared Democratic Republic of the Congo v. Belgium (no. 16554/19) inadmissible. Only High Contracting Parties, private persons, groups of individuals or nongovernmental organisations have standing under Articles 33 (inter-State cases) and 34 (individual applications).

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The European Parliament and Council of the EU reached an agreement on the revision of Regulation 654/2014, concerning the exercise of the EU’s rights for the application and enforcement of international trade rules. The Commission would be able to take action when dispute settlement procedures are blocked.

Thursday 29 October

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In C-576/19 P, the Court of Justice conrmed a decision of the European Medicines Agency granting a third party access to a document containing information submitted to EMA in the context of an application for marketing authorisation for ‘Ocaliva’, which has been approved for use in the US.

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AG Campos Sánchez-Bordona: exclusion of broadcasting-related contracts from former public procurement applies only to contracts awarded by broadcasters Thursday 29 October

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The AG’s Opinion for Czech Republic v Commission (C-862/19 P) advises that the Court of Justice dismiss the appeal brought by the Czech Republic against the General Court’s judgment in T-629/17, conrming that EU public procurement rules are applicable to broadcasting-related contracts awarded by public authorities.

Advocate General Tanchev: support granted by Italian deposit guarantee scheme to a private bank does not amount to State aid Thursday 29 October

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Advocate General Tanchev delivered his Opinion in Commission v Italy (C-425/19 P), advising that the Court dismiss the appeal against the General Court’s judgment in T-98/16, T-196/16 and T-198/16, which found that the measures adopted by an Italian consortium of banks for the benet of one of its members did not constitute State aid.

General Court’s interim measures in Fa- European Council and Commission on cebook v Commission: access to docu- EU-Canada relations: alignment of apments containing sensitive personal da- proaches ta temporarily possible under strict Friday 30 October READ MORE ON EU LAW LIVE conditions Thursday 29 October

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The President of the General Court issued two orders for interim measures in Facebook Ireland v Commission (T-451/20 R and T-452/20 R), in the context of two pending actions for annulment brought by Facebook against the Commission’s Data Access Decision C(2020) 3011 nal of 4 May 2020.

A meeting was held yesterday between the Presidents of the European Council and European Commission and the Canadian Prime Minister showing an alignment of approaches of the EU and Canada on international cooperation, ghting the pandemic, and green and digital shifts in economic recovery.

Schrems II: European Data Protection Supervisor’s Strategy published

Commission Recommendation on COVID-19 testing strategies published

Friday 30 October

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The EDPS issued a strategic document which aims at monitoring the compliance of EU institutions and bodies so that ‘ongoing and future international transfers are carried out in accordance with CJEU ruling Schrems II (C-311/18)EU data protection law’, in particular Regulation 2018/1725, and the EU Charter of Fundamental Rights.

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Commission Recommendation 2020/1595 on COVID19 testing strategies, including the use of rapid antigen tests, was ofcially published. Adopted on 28 October 2020, the Recommendation sets out guidance for Member States regarding key elements to be considered for national, regional, or local testing strategies.

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European Court of Auditors: recruitment procedures of EU personnel should be reﬁned Friday 30 October

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The ECA published a Special Report entitled ‘The European Personnel Selection Ofce: time to adapt the selection process to changing recruitment needs’, concluding that the European Personnel Selection Ofce (EPSO) should reconsider how it selects new recruits for the EU civil service.

Insights, Analyses & Op-Eds Testarossa judgment does not leave Ferrari red-faced By William Bull

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Op-Ed on the recent Court of Justice judgment in Testarossa (joined cases C-720/18 and C-721/18), concerning the requirement for trade mark proprietors to make genuine use of their trademarks if they are to remain valid. William Bull explains the meaning and implications of this ruling, putting it into the context of the previous case law on the matter.

Spanish Supreme Court judgment on ‘incentive effect’ of a regional aid measure under the General Block Exemption Regulation and the importance of cooperating with the EU institutions By Juan Jorge Piernas López

Analysis on a recent judgment of the Spanish Supreme Court annulling a Spanish administrative decision based on a breach of EU law. The author critically assesses the Spanish Supreme Court’s decision to rule on the case without discussing the potential application of the Eesti Pagar case law to the case under review, and without providing reasons for not requesting a preliminary ruling under Article 267 TFEU.

Library - Book Review Floris de Witte

By Maciej Krogel

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Re:generation Europe. Ten Proposals for Another Europe Maciej Krogel reviews the latest book of Floris de Witte, which attempts to lay a normative foundation for the reframing of the EU. The book imagines a project that could absorb the social and political potential of EU citizens, and is based on the premise that the Union needs to be reframed so that it can both avoid collapse and benet from the involvement of Europeans born after 1980.

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