Are You Networked Yet on Dialogues in European Judicial Networks

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This arcle is published in a peer-reviewed secon of the Utrecht Law Review

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Are You Networked Yet?

On Dialogues in European Judicial Networks

Monica ClaesMaartje de Visser*

hp://www.utrechtlawreview.org | Volume 8, Issue 2 (May) 2012 | URN:NBN:NL:UI:10-1-101443 |

1. Introduction

It is axiomatic that judges in dierent jurisdictions look dierent and behave dierently: 1 training,stang, jurisdiction, powers, impact and stature dier a great deal. Nevertheless, judges relate betteror more naturally to their brethren in other countries than to other domestic bodies or institutions,which they do not want to intrude in judicial business. Tis is especially so or those judges sharing acommon position or role in their legal system.2 Tis is captured by the idea o transnational judicialcommunities: judges rom dierent legal systems share common belies, values and a sel-perceptionand understanding o their role in the legal system and in society.3 Judges may share a common interestin the intrinsic value o legal concepts and in the quality o the legal argument and so transnationaldialogues may also ow naturally.4

Doctrine has caught on. In recent years, there have been articles dealing with various modalitieso such transnational dialogues. Some authors have written about judicial communities and inormal,occasional contacts between judiciaries.5 Others have explored the virtual or indirect transnationaldialogue through case law,6 with part o the literature documenting how such dialogues take place

* Monica Claes, Professor of European and Comparave Constuonal Law at the Department of Internaonal and European Law,

Maastricht University (the Netherlands), e-mail:[email protected]. Maartje de Visser, Assistant Professor at the De-

partment of Internaonal and European Law, Maastricht University (the Netherlands), e-mail: [email protected].

We wish to thank the parcipants in the Hiil Highest Courts network for their helpful comments and suggesons. This contribuon is part

of ongoing research within the European and Naonal Constuonal Law (EuNaCon) project, funded by the ERC.

This study was facilitated by the Hague Instute for the Internaonalisaon of Law (HiiL), in its capacity as partner in a Consorumwith Utrecht University, University of Cambridge and University of Bologna, through the sponsoring of the research project tled The

Changing Role of Highest Courts in an Internaonalising World.

1 J. Bell,Judiciaries within Europe: A Comparave Review, 2006, p. 1.

2 A. Rosas, Methods of Interpretaon Judicial Dialogue, in C. Baudenbacher & E. Busek (eds.), The Role of Internaonal Courts, 2008,

p. 187.

3 To be clear, we are talking here about judicial communies across legal systems, while not denying that judicial communies also exist

within legal systems and even within a single court.

4 See C. Timmermans, The European Unions Judicial System, 2004 Common Market Law Review41, pp. 393, 399.

5 Typically, judges themselves take the iniave to enter into contact with one another, but consider also the part played by academia in

organizing judicial dialogues. Arguably the most well-known of these is the Global Constuonalism Seminar, held annually at Yale Law

School, which brings together a select number of eminent judges from around the world for a four-day intensive seminar on topics of

common interest; see (last visited 8 March 2012).

6 B. Markesinis & J. Fedtke, Engaging with Foreign Law, 2009; B. Markesinis & J. Fedtke, The Judge as Comparast, 2005 Tulane Law

Review80, p. 11; C. McCrudden, A Common Law on Human Rights? Transnaonal Judicial Conversaons on Constuonal Rights,

2000 Oxford Journal of Legal Studies 20, p. 499; A.-M. Slaughter, A Global Community of Courts, 2003 Harvard Internaonal Law Journal

41, p. 191; A.-M. Slaughter, Judicial Globalizaon, 2000 Virginia Journal of Internaonal Law40, p. 1103; A.-M. Slaughter, A Typology ofTransjudicial Communicaons, 1994 University of Richmond Law Review29, p. 99.
http://www.utrechtlawreview.org/mailto:[email protected]:[email protected]:[email protected]://www.law.yale.edu/academics/globalconstitutionalismseminar.htmhttp://www.law.yale.edu/academics/globalconstitutionalismseminar.htmmailto:[email protected]:[email protected]://www.utrechtlawreview.org/http://creativecommons.org/licenses/by/3.0/


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Monica Claes & Maartje de Visser

between the CJEU and the European Court o Human Rights,7 between national courts and the CJEU, orbetween European and international courts.8

In this article, another modality or judicial dialogue is examined: we ocus on the practical workingso more or less institutionalized horizontalEuropean networks. Te results o this examination are usedto reect on what the rise o judicial networks may mean or the conceptualization o the workingrelationship between the CJEU and national courts in the European Union, and or the conceptualiza-tion o the European legal order as a composite legal order itsel.

Te article is organized in the ollowing manner. Section 2 explores the meaning o three centralconcepts: network, dialogue and constitutional pluralism. Clarity as to how these notions are under-stood is important or both empirical and normative reasons. Section 3 surveys the landscape o existinghorizontal European networks, that is, transnational networks which bring together judges who are moreor less at the same level and have similar unctions in their respective legal systems. Te rst part o thesection explores who participates in the networks and how and to what end dialogues are conductedwithin these orums. Te second part o this section discusses the incentives or judges to participate innetworks. In Section 4, the normative implications o judicial networks or the more vertical relation-ship between national judiciaries and the CJEU are considered.

2. Some defnitional issues

Tis section considers the denition o three core concepts that will be used in the remainder o thispaper, namely network, dialogue and constitutional pluralism. Tese will be discussed sequentially.

Networks are a well-established part o the social sciences vernacular. anja Brzel has oered theollowing general denition:

a set o relatively stable relationships which are o non-hierarchical and interdependent naturelinking a variety o actors, who share common interests with regard to a policy and whoexchange resources to pursue these shared interests, acknowledging that cooperation is the bestway to achieve common goals.9

For social scientists, networks are employed as an analytical tool to describe why and how cooperationor interaction between various actors takes place. Tus, within the context o the EU, we observe thatsome authors have characterized the European Union itsel as a network orm o organization, a systemo governance without government whereby ongoing negotiations take place in policy networksmade up o public and private actors at dierent levels.10 Others have used networks to explain theworkings o European institutions such as the Commission.11 Tey ocus on the relationship betweenthe Commission and national and transnational interest groups in various policy areas and the inuenceo these sectoral networks on policy outcomes and changes in European policy-making. Yet other social

7 See e.g. L. Scheeck, Compeon, Conict and Cooperaon between European Courts and the Diplomacy of Supranaonal Judicial

Networks, GARNET Working Paper 23/07.8 Consider e.g. N. Lavranos, The CJEUs Relaonship with Other Internaonal Courts and Tribunals, 6 September 2010, available at

(last visited 8 March 2012).

9 T. Brzel, Whats So Special About Policy Networks? An Exploraon of the Concept and Its Usefulness in Studying European Governance,

1997 European Integraon online Papers No. 16, p. 1 and T Brzel, Organizing Babylon On the Dierent Concepons of Policy Networks,

1998 Public Administraon 76, pp. 253, 254.

10 A. Bressand & K. Nicolaidis, Regional integraon in a network world economy and W. Wallace, Introducon: The Dynamics of Euro-

pean Integraon, in W. Wallace (ed.), The Dynamics of European Integraon, 1990; R. Keohane & S. Homann, Instuonal Change

in Europe in the 1980s, in R. Keohane & S. Homann (eds.), The New European Community: Decisionmaking and Instuonal Change ,

1991; L. Metcalfe, Aprs 1992: la Commission pourra-t-elle grer lEurope?, 1992 Revue Franaise dAdministraon Publique 63, p. 401;

K. Ladeur, Towards a Legal Theory of Supranaonality The Validity of the Network Concept, 1997 European Law Journal3, p. 33.

11 L. Metcalfe, The European Commission as a Network Organizaon, 1996 Publius: The Journal of Federalism 26, p. 43; W. Wessels,

Comitology: Fusion in Acon Polico-administrave Trends in the EU System, 1998 Journal of European Public Policy5, p. 209,

cf. Joerges and Neyers depicon of comitology commiees as a forum for deliberave polics in which all parcipants engage in the

search for the common good, C. Joerges & J. Neyer, From Intergovernmental Bargaining to Deliberave Polical Processes: The Cons-

tuonalizaon of Comitology, 1997 European Law Journal3, p. 273. This would apply in parcular for those commiees that represent

economic and social interests and/or are composed of experts. Similar claims could arguably be made for the Council, in parcular itsCOREPER, the Economic and Social Commiee or agencies, in parcular those with naonal focus or reference points.
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Are You Networked Yet? On Dialogues in European Judicial Networks

scientists employ networks to chart the impact o European policy-making on the national structures othe Member States. For instance, Beate Kohler-Koch argues that the State, just like the EU, is becominga networked orm o governance: it is transormed rom actor into arena by a shif rom hierarchical,state-centred coordination to non-hierarchical sel-coordination o public and private actors across alllevels o government.12 Finally, the interest in networks is not conned to the particular context o theEuropean Union: as Anne-Marie Slaughter has poignantly argued in A New World Order,13 much oglobal governance is conducted through purely transnational networks o governmental ocials, andtransjudicial communications and global networks o courts are very much included.14

Networks in the social science sense are thus primarily an explanatory concept they are used tomake sense o real-lie events, with a particular ocus on explaining how and why actors work togetherand what relational norms govern their dealings. Consequently, the networks that social scientists writeabout ofen tend to be rather inormal structures, exhibiting a low degree o institutionalization. Tetransnational judicial communities mentioned in the introduction to this paper can be considered to benetworks in the way that the social sciences use that concept.

More recently, the law has also taken an interest in networks. For both law and social science,the core eature o a network is the same: the existence o a series o interlocking and non-hierarchi-cal relationships between the various actors. Both disciplines also use networks in an instrumentalist

ashion. Te way they do so, however, diers. Social science relies on the network concept to relate andinterpret a social reality. Conversely, the law designs structures that it ofen also expressly reers to asnetworks in which the relevant actors are connected through a series o interrelated legal rights andobligations. Te law thus actively creates networks that exhibit a higher degree o institutionalizationthan the social science version.

It should be clear, then, that the social science and the legal approaches are not mutually exclusive.Indeed, and applied to the idea o judicial dialogues, ormal judicial networks (especially those set upby the judiciaries themselves) commonly build on pre-existing judicial communities and these judicialcommunities are in turn reinorced by the well-unctioning o these ormal networks. In the end, therelationships between the network participants will no longer be grounded only in ormal legal rulesthat mandate interaction, but also based on inormal connections, which themselves are grounded in the

mutual trust and the development o common behavioural standards so typical o judicial communities.Reecting on the concept o dialogue, we now consider some insights rom the broader theory o

institutional dialogue as developed in Canada15 in the context o constitutional conversations betweencourts and legislatures, by authors like Peter Hogg,16 Allison Bushell,17 Kent Roach18 and Luc remblay.19According to this theory, courts and legislatures in Canada participate in a dialogue regarding thedetermination o the proper balance between constitutional principles and public policies and, thereore,there is good reason to think o judicial review as democratically legitimate. Te dialogue paradigm isthus used as a middle way between judicial supremacy on the one hand, and legislative supremacy on theother. It is an ongoing dialogue because the judiciary does not necessarily have the last word with respectto constitutional matters and policies; the legislature would almost always have the power to reverse,

12 B. Kohler-Koch, The Strength of Weakness. The Transformaon of Governance in the EU in S. Gustavsson & L. Lewin (eds.), The Futureof the Naon State, 1996, p. 169.

13 A.-M. Slaughter,A New World Order, 2004.

14 See references cited at note 6, supra.

15 The dialogue paradigm is obviously used elsewhere as well, see amongst many others C. Bateup, The Dialogic Promise. Assessing the

Normave Potenal of Theories of Constuonal Dialogue, 2006 Brooklyn LawReview71, p. 1109; S. Gardbaum, The New Common-

wealth Model of Constuonalism, 2001AmericanJournal of Comparave Law49, p. 707; A. Barak, A Judge on Judging: The Role of a

Supreme Court in a Democracy, 2002 Harvard Law Review116, pp. 16, 133-136; R. Clayton, Judicial Deference and Democrac Dialogue:

The Legimacy of Judicial Intervenon under the Human Rights Act 1998, 2004 Public Law33; A.M. Bickel, The Least Dangerous Branch:

The Supreme Court at the Bar of Polics, 1986; L. Fischer, Constuonal Dialogues: Interpretaon as Polical Process, 1988; M. Tushnet,

Judicial Acvism or Restraint in a Secon 33 World, 2003 University of Toronto Law Journal53, p. 89.

16 P. Hogg & A. Thornton in P.W. Hogg & A.A. Bushell, The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of

Rights Isnt Such A Bad Thing Aer All), 1997 Osgoode Hall LawJournal35, p. 75.

17 Ibid.

18 K. Roach, Dialogic Judicial Review and Its Crics, 2004 Supreme Court Law Review23, p. 49, K. Roach, Dialogue or Deance: Legislave

Reversal of Supreme Court Decisions in Canada and the United States, 2006 Internaonal Journal of Constuonal Law4, p. 347.

19 L. Tremblay, The Legimacy of Judicial Review: The Limits of Dialogue between Courts and Legislatures, 2005 Internaonal Journal ofConstuonal Law3, p.617.


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modiy, or make void a judicial decision nulliying legislation. Judicial review, accordingly, is not a vetoon the politics o the nation, but rather the beginning o a dialogue as to how best to reconcile individualrights with the accomplishment o social and economic policies or the benet o the community as awhole.

In the same context, Luc remblay has made a useul distinction between dialogue as conversationand dialogue as deliberation, in order to indicate the limits o the theory o institutional dialogue.20 Highlycritical o the use o the dialogue paradigm to sustain the democratic legitimacy o judicial review,remblay points to the need to pay more attention to the nature o the dialogue, in order or the concept tohave any real meaning in the discussion. It is a useul distinction to be made also in the context o judicialdialogue in the context o the relationship between the European Court o Justice and national courts.According to remblay, in a general sense, a dialogue assumes that two or more persons, recognized asequal partners, exchange words, ideas, opinions, eelings, emotions, intentions, desires, judgments, andexperiences together within a shared space o inter-subjective meanings.21 Now, dialogue as conversationimplies a conversation with no real goal in mind, no specic purpose. Tere is equality, no hierarchybetween the participants, a ree exchange o ideas and each o the participants may take something homerom the conversation, but the aim is not to achieve a common goal, a decision, or even agreement. Itassumes that partners encounter each other in a shared world through a common language and common

grammar. Tis presupposes some orm o cooperation. An example o this orm o dialogue is the caseo the casual evening at home, where one invites riends or drinks and dinner and one riend mentionsthat she is taking up tango dancing and will rent a villa in uscany. Tis provokes new interests in mymind. I too may consider tango dancing (would that be something or me?) and going to uscany or thesummer. But there is nothing which and no one who says that I should do so because she is going to. AndI may decide to take up Italian lessons and go to Spain or the summer. Dialogue as deliberation is very dierent: it is aimed at a specic purpose. It aims at reaching a com-mon agreement, at solving problems collectively and determining collectively which opinion or solutionis right or best. Conditions or such dialogue are threeold. First, the participants must recognize eachother as equal partners, and are equally entitled to put orward their views, to make proposals, to deendparticular options and to take part in the nal decision. No hierarchy must coner in advance on one or

more o the participants the authority to settle the disagreements. Second, deliberative dialogues mustconsist in a process o rational persuasion, not coercion, with all partners being open to critical analysiso their views, and none imposing their views on the others. Tird, this type o dialogue aims at achievingan end result, and hence participants must justiy their positions, in order to deend their position andconvince the others. O course, there are situations where no agreement can be ound, and partnersmust agree to disagree, or compromise. Tese three conditions could be termed equality, rationality andreasoned agreement.

O course, expertise and voice may vary rom one partner to the other, and each may have a dierentrole to play in the deliberation. Yet, in order to be able even to talk about a deliberative conversation,the three conditions o equality, rationality and reasoned agreement are crucial, otherwise the dialogueremains merely conversational. o be sure, there is nothing wrong with conversational dialogues: they

can be very pleasant and, as already said, they can lead to common results (albeit not aimed or). Butthey should not be conused with deliberative dialogues. It is this kind o deliberative dialogue conductedunder the three conditions just mentioned which, according to remblay, has special normative valueand legitimating orce, and which can support the view that judicial review is democratically legitimateas part o a dialogue between courts and legislatures.

Tere is o course something misleading deceptive about presenting the two prototypes o dialogueas set out by Luc remblay, since there are many other types o dialogue between these two prototypes.His approach seems to presuppose a certain positive quality to all dialogue and thereby disregards inter-actions that are unpleasant or downright antagonistic. He also omits the extreme case where there is areusal to even engage in a dialogue.

20 Ibid.21 Ibid., p. 630.


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Leaving that point aside and instead moving rom dialogues between courts and legislatures to thosebetween just courts, it is urthermore debatable whether the courts involved in the European judicialdialogues are truly equal partners. In theory, there is equality with a division o labour: interpretationor the CJEU and application or the national courts. In practice however, a vertical relationship hasdeveloped between the two, with the national courts being bound by the CJEUs case law (unless theymake a new reerence), the distinction between interpretation and application being blurred, and theCJEU developing as a primus inter pares and behaving as such (the oracle o Luxembourg). Bearingthose caveats in mind, let us take a closer look at the types o dialogue between national courts and theCJEU.22

Te traditional ormal avenue or dialogue between the national courts and the CJEU is the prelimi-nary reerence procedure ound in Article 267 FEU.23 Yet, it can be argued that there is no realdialoguegoing on when applying the standards just described: the national court reers a question and is then

virtually removed rom the procedure beore the CJEU; there is no urther conversation,24 much lessdeliberation. Te national courts steps in again only afer the CJEU has given its response to the questionasked. Furthermore, answers rom the CJEU are known to be sometimes volatile and unpredictable:at times restricted to the case at hand and almost doing the work o the national court, at other timesgeneral and almost laconic, ofen open-ended. Tere are plenty o examples where the answer o the

CJEU was not helpul (not only or the case at hand but also or uture cases).25 Very ew national courtsmake the eort o making a new reerence in the same case where the answer has not been helpul.In other words, they do not engage in a true dialogue with the CJEU. Finally, the dialogue throughthe preliminary reerence procedure is easy to avoid or the national courts, by simply not making thereerence. It is well known or instance, that quite a ew constitutional courts and other highest courts donot make reerences to Luxembourg, but rather encourage the engagement o the ordinary courts withthe CJEU. Te German and Austrian constitutional courts have even made it a constitutional obligationor their highest ordinary courts to reer questions to the CJEU, 26 the inringement o which will leadto the quashing o the decision made by the court not making the reerence, and the sending o thatdecision back or that court to make a reerence.

Beside the preliminary reerence procedure, dialogues between the national courts and the CJEU

have been mostly implicit, inormal and indirect. Tey can, or instance, be conducted through case law.A national court may cite CJEU case law, thereby indicating that it accepts and ollows the CJEU, butthere is no real exchange o opinions, and no deliberation.27 Te CJEU or its part never makes reerenceto the case law o the national courts o the Member States. Te CJEU may have good reasons not to enterinto an explicit and detailed debate with each and every national court making the reerence in each andevery case, and it may be wise to omit it in all cases. But more importantly, the CJEU has no say overnational law: it does not interpret or apply national law, and would be acting beyond the province o itsown mandate i it did. Te necessary bi-directional element, essential or any type o dialogue, is absent.

When they disagree with the CJEU, national courts will mostly be less explicit, and restrict them-selves to sending dark signals to the CJEU. Tis too can hardly be called a dialogue, but rather consists

22 For a more elaborate discussion of the relaonship between the CJEU and naonal courts, also with a focus on the role played by judicial

networks, see M. Claes & M. de Visser, Courts United? On European Judicial Networks, in B. De Wie & A. Vauchez (eds.), The European

Legal Field, forthcoming.

23 Generally on the preliminary reference procedure see P. Craig & G. de Brca, EU Law: Text, Cases and Materials, 2008, ch. 13; S. Weatherill,

Cases and Materials on EU Law, 2007, ch. 7.

24 The CJEU can, however, ask the referring court for further claricaon (Art. 104(5) Rules of Procedure). The CJEU Informaon Note on

references from naonal courts for a preliminary ruling, OJ C 143, 11.6.2005, p. 1 contains the following explanaons: The order for

reference and the relevant documents (including, where applicable, the case le or a copy of the case le) are to be sent by the naonal

court directly to the Court of Jusce, by registered post () [at 29]. The Court Registry will stay in contact with the naonal court unl a

ruling is given, and will send it copies of the procedural documents [at 30]. The Court will send its ruling to the naonal court. It would

welcome informaon from the naonal court on the acon taken upon its ruling in the naonal proceedings and, where appropriate, a

copy of the naonal courts nal decision [at 31].

25 See e.g. Joined Cases C-383/06 to C-385/06, Vereniging Naonaal Overlegorgaan Sociale Werkvoorziening e.a. tegen Minister van Sociale

Zaken en Werkgelegenheid en Algemene Direce voor de Arbeidsvoorziening,[2008] ECR I-1561.

26 BverfG 73, 399 (1986) Solange II; Verfassungsgericht, decision B 3067/95 of 30 September 1996.27 But not all naonal courts will do so, depending on naonal legal culture and tradions.


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in positing a diktat versus the other courts diktat.28 Tese messages are most ofen heard at times oreaty change, when they are concerned with the system as such and do not address concrete cases.Examples in point are theMaastricht Urteil29 and the recent Lisbon Urteil,30 or the decision o the FrenchConstitutional Council (Conseil constitutionnel) on the Constitutional reaty.31 Te CJEU, or its part,sometimes does the same, and engages with the national courts by sending signals or even by holdingits silence.32 However, these silent judgments, as they have been labelled, are dicult to interpret andhardly qualiy as an open exchange o views. Silent dialogues may cause conusion, not only or thoseparticipating in them, but also or the wider audience o these courts, namely parties, Member States,institutions and the general public.

Te judicial dialogue between the CJEU and national courts is also conducted through theextrajudicial writing o judges, advocates general and their clerks who at the same time may be proessorsand legal scholars.33 Members o the CJEU have or instance been active in spreading the message othe autonomous nature o EU law, the constitutionalisation o the reaties (through the case law o theCJEU on which they themselves served) and the development o the CJEU into a constitutional court.Tey have insisted that the relationship o the CJEU with national courts is one o cooperation, and thatthe method o European law, despite the European legal orders autonomy, is comparative methodology,anchoring European law in the European legal traditions, and building on an existing ius commune.34 Te

message is clear: the primacy o EU law and the nal authority o the CJEU do not present a threat tonational constitutions and national courts, since the CJEU will base the general principles o Europeanlaw on the common traditions o the Member States and the national courts are invited to participate.National court judges too have deended the position o their courts in extrajudicial writing, explainingand deending the position o their courts.35

Finally, dialogue among courts operates through those courts personnel, through the people whooperate the system, people o esh and blood. Members o national courts visit the CJEU in Luxembourgand vice versa, and judges meet at academic conerences. Te European Court o Human Rights organisessymposiums, known as Dialogues between Judges, on a yearly basis, at the occasion o the opening o the

judicial year in January, when it invites leading judicial gures rom across Europe to attend a seminaron issues o common interest.36 Tese personal encounters between European and national judges oster

trust and respect between the respective courts, oer an occasion to clariy and discuss their case law andallow or an exchange o ideas on legal issues o common interest.37

28 As rightly suggested by B. De Wie in The Closest Thing to a Constuonal Conversaon in Europe: the Semi-Permanent Treaty Revision

Process, in P. Beaumont et al. (eds.), Convergence & Divergence in European Public Law, 2002.

29 89 BVerfG 155 (1993).

30 2 BVerfG 2/08, 2 BVerfG 5/08, 2 BVerfG 1010/08, 2 BVerfG 1022/08, 2 BVerfG 1259/08 and 2 BVerfG 182/09 (2009).

31 Decision No. 2004-505 DC of 19 November 2004.

32 D. Sarmiento, The Silent Lamb and the Deaf Wolves. Discursive Pluralism, Preliminary References and Empty Judgments in a Brave New

World, paper presented at the conference Constuonal Pluralism in the EU and Beyond, Oxford, 20-21 March 2009.

33 Consider for instance O. Due, A Constuonal Court for the European Communies and F. Jacobs, Is the Court of Jusce of the European

Communies a Constuonal Court?, in D. Curn & D. OKeee (eds.), Constuonal Adjudicaon in European Community and Naonal

Law: Essays for the Hon. Mr Jusce TF OHiggins, 1992; R. Lecourt, Quel eut t le droit des communauts sans les arrts de 1963 et

1964?, in Mlanges Jean Boulouis: lEurope et le Droit, 1991; A. Donner, The Constuonal Powers of the Court of Jusce of the EuropeanCommunies, 1974 Common Market Law Review11, p. 127; G. Rodriguez Iglesias, Zur Verfassung der Europischen Gemeinscha,

1996 Europische Grundrechte-Zeitschri23, p. 125; G. Slynn, The Court of Jusce of the European Communies, 1984 Internaonal

and Comparave Law Quarterly33, p. 409; G. Mancini, The Making of a Constuon for Europe, 1989 Common Market Law Review

26, p. 595; F. Schockweiler, Die richterliche Kontrollfunkon: Umfang und Grenzen in Bezug auf den Europischen Gerichtshof, 1995

Europarecht 30, p. 191. Further: E. Stein, Lawyers, judges and the making of a transnaonal Constuon, 1981 American Journal

Internaonal Law73, p. 1; H. Schepel & R. Wesseling, The Legal Community: Judges, Lawyers, Ocials and Clerks in the Wring of

Europe, 1997 European Law Journal3, p. 165.

34 K. Lenaerts & J. Guerrez-Fons, The Constuonal Allocaon of Powers and General Principles of EU Law, 2010 Common Market Law

Review47, p. 1629.

35 P. Kirchho, The Balance of Powers between Naonal and European Instuons, 1999 European Law Journal3, p. 225; A.Vosskuhle,

Mullevel cooperaon of the European Constuonal Courts: Der Europische Verfassungsgerichtsverbund, 2010 European Constu-

onal Law Review6, p. 175.

36 These Dialogues between Judges are reported on the website of the European Court of Human Rights, (last visited 8 March 2012).

37 This is also nicely illustrated in the speech of President J.P. Costa of the European Court of Human Rights on the occasion of a visit to the

Russian Federaon, Le rle des autorits naonales, notamment judiciaires, et le futur de la protecon des droits de lhomme en Europe,available on the website of the Court.
http://a.vosskuhle/http://www.echr.coe.int/ECHR/EN/Header/Reportshttp://www.echr.coe.int/ECHR/EN/Header/Reportshttp://www.echr.coe.int/ECHR/EN/Header/Reportshttp://www.echr.coe.int/ECHR/EN/Header/Reportshttp://a.vosskuhle/


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o conclude this point on dialogue and overlooking the various channels or dialogue and measuringthem against the standards proposed by Luc remblay, it would seem that the traditional narrative basedon judicial dialogue must be put in perspective. Te preliminary reerence procedure and case law, theormal and ocial channels o communication available to courts, seem to score relatively low when seenin the light o the standards o both conversational and deliberative dialogue. Tese channels o com-munication hardly qualiy as real dialogues they seem more like a series o monologues. Extrajudicialexchanges, both in writing and via personal contacts, score much higher as they allow or a ree exchangeo ideas and arguments on a more equal ooting and even give room or deliberation on common issues.

Finally, it is important to bear in mind the conceptual context against which these judicial dialoguestake place, which we would describe as the rise o the concept oconstitutional pluralism. Legal thinkingabout the relationship between the European and national legal orders has changed undamentally, andis no longer set in terms o dichotomy, hierarchy, conict and (cold) war.38 Rather, the ocus these daysis on common principles, on the development o a common constitutional space, combined with mutualrespect or identity and diversity o the constituent parts.39 Tere is a clear move away rom hierarchyto heterachy, rom conict to mutual respect and deerence, and the seeds are sown or a real dialogue.Te insistence o the German Constitutional Court (Bundesverassungsgericht), in itsMaastricht Urteil,on its relationship o cooperation (Kooperationsverhaltnis) with the Court o Justice, was perceived by

commentators as insincere, because the debate was still set in terms o nal authority and hierarchy. Tedialogue paradigm does not really work in such an environment.

oday, the conceptual ramework has changed, and it has remarkably done so alongside the riseand all o the Constitutional reaty. Te reaty has ailed and aded, but the concept o constitutionalpluralism is still with us today, and it oers a much better setting or a ertile dialogue. Te turn toconstitutional pluralism, which provides an alternative to conclusiveness and nality o one legal orderover the other in the absence o consensus over the ultimate authority, allows or the development o areal dialogue between the courts. At the same time, it is exactly this dialogue between the national andEuropean courts which conrms and enhances pluralist conceptions o the European Union constitu-tional order.

3. Mapping the feld

Having laid the conceptual groundwork, this section seeks to provide an overview o horizontal Europeannetworks, that is to say transnational networks which bring together judges who are more or less at thesame level and have similar unctions in their respective legal systems. Te world o judicial networks isever expanding, leaving writers with the somewhat daunting task o devising ways to present this realityto the unknown reader. One approach would be to proceed chronologically. Alternatively, it is possibleto think o distinctions that could be made between networks depending on, or instance, whether theyare more general or specialist in nature. We have chosen to discard these options and instead make useo our simple questions that paint the most accurate picture o the operation o judicial networks andtheir impact in actual lie. First, or what aims have these networks been set up? Second, how do networks

go about achieving these aims how do dialogues take place? Tird, what topics are considered suitableor judicial dialogue? Fourth, why do judges decide to create and participate in transnational networks?We cannot pretend to be exhaustive in covering all the judicial networks currently in existence in thissection, i only because the prolieration o networks is taking place at an increasingly rapid pace. Weshall thereore ocus primarily on the most well-established and the most active networks. 40

38 Examples of that approach are J.H.H. Weiler, The Reformulaon of European Constuonalism, 1997Journal of Common Market Studies

35, p. 97; D.R. Phelan, Revolt or Revoluon: The Constuonal Boundaries of the European Community, 1997.

39 See Arts. 6(3) and 4(2) TEU.

40 Networks created under the aegis of the Council of Europe, such as the Consultave Council of European Judges, will not be considered in

this paper. See generally A. Potocki, Les Rseaux Juridiconnels en Europe, in C Baudenbacher et al. (eds.), Liber Amicorum en lhonneurde/ in honour of Bo Vesterdorf, 2007, p. 141.


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Aims of judicial networks

When considering the aims pursued by judicial networks, it is helpul to maintain a broad distinctionbetween those created by the European legislature and those set up at the instigation o the judges them-selves. Starting with the ormer, three prominent examples are the European Judicial Network, Eurojustand the European Judicial Network in Civil and Commercial Matters.

Te European Judicial Network (EJN)41

has its origins in Joint Action 98/428/JHA.42

Its aim is toacilitate judicial cooperation in the ght against serious crimes such as corruption, drug-tracking orterrorism. o that eect, Member States are called upon to appoint contact points to the EJN rom amongthe central authorities responsible or international cooperation as well as the judicial and prosecutingauthorities active in this eld.43 Tese contact points act as intermediaries between the competentlocal authorities by enabling direct transnational contacts where appropriate; providing inormationconcerning the judicial and procedural system o other Member States; and oering practical assistancein preparing and implementing requests or cross-border judicial assistance (such as the execution o aEuropean Arrest Warrant).44

Established in 2002, the mandate o Eurojust45 is to enhance cooperation between the competentauthorities responsible or investigation and prosecution o cross-border and organized crime.46 It com-prises one national member per state which may, but need not, be a judge: a Member State can alsosend a prosecutor or a policy ocer as its representative.47 More precisely, Eurojusts objectives are tostimulate and improve the coordination between the competent authorities o the Member States; toimprove cooperation between these authorities by acilitating the execution o international mutual legalassistance and the implementation o extradition requests; and to oer other support that will render theinvestigations and prosecutions by the competent authorities more eective.48

As can be inerred rom its name, the European Judicial Network in Civil and Commercial Matters(EJNCCM)49 is charged with acilitating judicial cooperation between the Member States in civil andcommercial matters.50 It must do so, in particular, through the development o two detailed inormationsystems: one intended or internal use by its members and the other available to the public at large as auseul point o reerence when individuals become embroiled in litigation with a cross-border impact. 51Te EJNCCMs members all into our categories: contact points designated by the Member States;

central bodies active in this eld pursuant to Community or international legal instruments; liaisonmagistrates; and other judicial authorities involved in transnational cooperation in civil and commercialmatters.52 Te contact points will assist the other members in ensuring sound cross-border cooperationinter alia by supplying them with the inormation needed to prepare operable requests or cooperation;seeking solutions to diculties arising on the occasion o a request or judicial cooperation; and acilitat-ing coordination o the processing o such requests.53

41 (last visited 8 March 2012).

42 Joint Acon of 29 June 1998 adopted by the Council on the basis of Arcle K.3 of the Treaty on European Union, on the creaon of a

European Judicial Network, OJ L191, 7.7.1998, p. 4.

43

Ibid., Art. 1.44 Ibid., Art. 4.


46 Council Decision 2002/187/JHA of 28 February 2002 seng up Eurojust with a view to reinforcing the ght against serious crime, OJ L 63,

6.3.2002, p. 1. Art. 4 species that Eurojust has competence in respect of all types of crimes that fall within Europols remit of jurisdic-

on and in relaon to computer crimes, fraud and corrupon, money laundering, environmental crimes and parcipaon in a criminal

organizaon.

47 Ibid., Art. 2.

48 Ibid., Art. 3.


50 Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial maers, OJ L 174,

27.6.2001, p. 35. See also Proposal for a decision of the European Parliament and of the Council amending Council Decision 2001/470/

EC establishing a European Judicial Network in civil and commercial maers COM(2008) 380 nal.

51 Council Decision 2001/470/EC, supra note 50, Arts. 3, 14 and 15. The public website oers informaon on the state of the law in the

Member States and at Community level in relaon to inter alia legal aid, access to the courts, procedural me limits, interim measures,

simplied and accelerated procedures and compensaon to crime vicms.

52 Ibid., Art. 2.53 Ibid., Art. 5.
http://www.ejn-crimjust.europa.eu/ejnhttp://www.ejn-crimjust.europa.eu/ejnhttp://eurojust.europa.eu/index.htmhttp://eurojust.europa.eu/index.htmhttp://ec.europa.eu/civiljustice/index_en.htmhttp://ec.europa.eu/civiljustice/index_en.htmhttp://ec.europa.eu/civiljustice/index_en.htmhttp://eurojust.europa.eu/index.htmhttp://www.ejn-crimjust.europa.eu/ejn


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In sum, we see that the networks set up by the European legislature aim to acilitate and enhancejudicial cooperation in the relevant eld, in order to improve the unctioning o the European judicialsystem, and to increase mutual trust, which is necessary or systems o mutual recognition to work.Networks which are created by the judiciaries themselves, start rom pre-existing mutual trust and amutual (sel-)perception among participants o belonging to the same transnational judicial community.Te mandates o these networks vary.

First, there are networks that seek to improve knowledge o other legal systems. For example, theNetwork o the Presidents o the Supreme Judicial Courts o the EU (NPSJC)54 aims to oster debate andpromote knowledge o other legal systems among its members, so as to promote and develop a commonlegal culture.55 Te European Judges and Prosecutors Association (EJPA),56 established in March 2004by trainee judges and prosecutors rom the French National Judiciary School, similarly aspires to de-

velop the knowledge o its members o the legal systems o the Member States to enable meaningullegal cooperation on a daily basis.57 Finally, there is the Association o European Administrative Judges(AEAJ).58 An apex organization grouping national associations o administrative courts,59 the AEAJencourages improvements in the availability o legal redress or individuals vis--vis public authoritiesand promotes the legality o administrative acts, while respecting the legal cultures in the various nationallegal systems. As such, this network contributes to the dissemination o inormation on legal redress in

administrative matters by means o an extensive exchange o pertinent case law and legislation.Second, a signicant number o European networks have been set up with the aim o sharing

practical experiences and promoting the exchange o ideas. Such exchanges can relate to substantive aswell as institutional issues and may be carried out with a view to establishing best practices or a commonlegal culture. A good example is the Association o the Councils o State and Supreme AdministrativeJurisdictions o the European Union.60 Tis network was established in 199861 to provide its members withpractical know-how on exercising their national mandate, with special attention to matters concerningEuropean law.62 Te Conerence o European Constitutional Courts (CECC)63 is another example o anetwork whose principal unction is to share experiences. Te CECC brings together judicial bodiesthat exercise constitutional jurisdiction,64 in particular reviewing the conormity o legislation with theconstitution, and it is charged with providing its members with savoir-aire as regards constitutional

practice and case law in relation to selected themes.65 A more recent example is the Association oEuropean Competition Law Judges (AECLJ).66 Established in 2001, the AECLJ groups together national

54 (last visited 8 March 2012). The inaugural conference was held on 10 March 2004 in Paris, at the

Cour de cassaon with nancial support from the European Commission (under the AGIS programme, which ran from 2003 unl 2006

and sought to help police, the judiciary and professionals from the EU Member States and candidate countries cooperate in criminal

maers and the ght against crime).

55 See Newsleer No. 6, July 2008, available at the Networks website.


57 Art. 2 of the statute of the European Judges and Prosecutors Associaon.


59 Statutes of the AEAJ, Art. 2.


61 It should be noted, however, that there has been a much longer tradion of regular meengs. The rst meeng, between the Belgian andItalian Councils of State, was held in 1964, and the rst colloquium involving the then six members of the EC took place in 1968. Since

then, colloquiums have been held biennially, on various themes of common interest, somemes, but not always, relang to European

issues. The CJEU joined in later.

62 Art. 3 Statutes of the Associaon.

63 (last visited 8 March 2012). See also (last visited 8 March 2012).

Note the name conference instead of associaon or network commonly used by other networks. This is probably due to the specic

role of these courts, and aims to stress their connuing independence and neutrality. The French Conseil constuonnel, the Belgian Cour

constuonnelle as well as the Bulgarian and Czech constuonal courts are also members of the Associaon des Cours Constuon-

nelles ayant en Partage lUsage du Franais, see (last visited 8 March 2012).

64 Art. 6 Statute of the CECC. Membership is not limited to courts of the EU Member States. The same Arcle also spulates the various

documents that must accompany an applicaon for membership. Required are the legal instruments governing the establishment and

composion of the applicant instuon as well as the appointment and status of its judges; texts stang the nature and scope of the

jurisdicon as well as documents that demonstrate jurisdicon actually exercised.

65 Art. 3 Statute of the CECC.

66 Other specialist networks pursuing similar aims include the EU Forum of Judges for the Environment, the European Associaon of Labour

Court Judges, the European Associaon of Judges, Magistrats europens pour la Dmocrae et les Liberts, the Forum des juges com-merciaux europens and the Groupement Europen des Magistrats pour la Mdiaon.
http://www.network-presidents.eu/http://www.amue-ejpa.org/index.php?lang=ukhttp://www.amue-ejpa.org/index.php?lang=ukhttp://www.aeaj.org/http://www.aeaj.org/http://www.juradmin.eu/en/home_en.htmlhttp://www.juradmin.eu/en/home_en.htmlhttp://www.confcoconsteu.org/http://www.confcoconsteu.org/http://www.lrkt.lt/conference.htmlhttp://www.accpuf.org/http://www.accpuf.org/http://www.lrkt.lt/conference.htmlhttp://www.confcoconsteu.org/http://www.juradmin.eu/en/home_en.htmlhttp://www.aeaj.org/http://www.amue-ejpa.org/index.php?lang=ukhttp://www.network-presidents.eu/


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judges working in the area o European competition law.67 It provides them with a vehicle or exchangingviews and experiences, which should culminate in best practices or the swif and correct application oEuropean competition rules. A nal network worthy o mention here is the European Judicial rainingNetwork (EJN).68 While not so much in the business o actually exchanging inormation, the EJNcarries out important groundwork or successul transnational dialogues by designing programmes andmethods or judicial training that oster cross-border judicial cooperation and mutual learning.

Tird, there are also networks that aim to advance the interests o their members at the national and/or European level. Tus, the AEAJ is not only involved in improving knowledge o other legal systems,another o its objectives is to promote the proessional interests o administrative judges at national andEuropean level vis--vis the institutions o the European Union and the Council o Europe.69 Te samecan be said about the NPSJC. In addition to disseminating inormation about the legal systems o theMember States, this network urther sees itsel as providing a orum through which European Institutionsare given an opportunity to request the opinions o Supreme Courts.70 Also included in this categoryis the European Network o Councils or the Judiciary (ENCJ).71 Te ENCJ is not strictly speaking a

judicial network, as it is not composed o judges but o national institutions which are independent othe legislative and the executive and which must support the judiciary in the independent delivery o

justice.72 It has accorded itsel the task o acting as a mediator between the European institutions and the

national judiciaries. It is also available to provide expertise, experience and suggestions to the EU institu-tions within the European area o reedom, security and justice.

How do dialogues take place?

Te preceding discussion has cast some light on the types o mandates o judicial networks. Tis subsec-tion takes the logical next step and explains how the networks go about achieving their aims.

A rst common approach is the organization o regular ace-to-ace meetings. For instance, theEJN and the EJNCCM both organize periodic meetings between the contact points during which theyare urther acquainted with the particularities o each contact points legal system and debate how toovercome remaining practical and legal obstacles to judicial cooperation.73 Consider urther the CECC:its statute stipulates that it must hold triennial specialized congresses or members to actually share

experiences as regards constitutional practice and jurisprudence in relation to a particular theme.74Other networks that requently organize conerences, symposia and seminars are the Association o theCouncils o State and Supreme Administrative Jurisdictions o the European Union, the NPSJC, the EJPAand the AECLJ. Finally, some networks also provide their members with the possibility o conductingstages or training. o give an example, in 2010 the Association o the Councils o State and SupremeAdministrative Jurisdictions o the European Union organized a working visit o two weeks or 12 judgesto a court o another Member State. Te invited judges participated ully in the daily activities o the hostinstitution: they attended hearings, deliberated on the verdict and assisted in writing the nal judgment.At the end o the training, the participating judges wrote a report about their visit. Stages are ofen carriedout under the auspices o the EJN, which has moreover been given exclusive responsibility by the EUinstitutions or implementing the Exchange Programme or judicial authorities.

67 The English Compeon Appeal Tribunal (CAT) played a leading role in establishing the AECLJ (and has also provided its secretariat) and

it is thus no surprise that the president of the CAT, Sir Christopher Bellamy, was elected as the Associaons rst president. He was suc-

ceeded by Joachim Bornkamm of the German Bundesgerichtshofin 2005.


69 Art. 1 Statutes.

70 As explained under the heading Presentaon of the network on its own website, (last visited

8 March 2012).


72 Art. 6 Statutes of the internaonal not-for-prot associaon European Network of Councils for the Judiciary. As not all EU Member States

have these instuons there are thus fewer ENCJ members than there are Member States. That said, for those countries that do not have

a council for the judiciary, their Ministry of Jusce can parcipate in the work of the ENCJ as an observer.

73 Joint Acon of 29 June 1998, supra note 42, Art. 5 and Council Decision 2001/470/EC, supra note 50, Art. 10.

74 Art. 3 Statutes. Constuonal courts have also gathered at the invitaon of one constuonal court, outside the framework of the

triennial congresses. By way of example, the president of the Italian Corte costuzionale invited the presidents to discuss in Rome the

relaonship between European and naonal law, Corte Costuzionale, Dirio Comunitario Europeo e Dirio Nazionale: A del seminariointernazionale, Roma 14-15 luglio 1995, 1997.
http://www.ejtn.net/enhttp://www.ejtn.net/enhttp://www.network-presidents.eu/http://www.encj.eu/http://www.encj.eu/http://www.encj.eu/http://www.network-presidents.eu/http://www.ejtn.net/en


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Te second approach to judicial interaction relies on the use o sophisticated I acilities. o be clear,this way o communication can be, and ofen is, combined with ace-to-ace meetings. Te Associationo the Councils o State and Supreme Administrative Jurisdictions o the European Union arguably hasthe most elaborate inormation system, which comprises three components. Te DEC-NA databank isa reely accessible, searchable database which holds les on around 20,000 national decisions, translatedinto English to enhance their useulness or consultation and reerence purposes.75 Each le contains basicinormation regarding the case (such as the names o the parties, applicable legal provisions and relevantdoctrinal works) as well as an analysis which claries the aim o the judgment. Te second component isthe JURIFAS rapid inormation system or case law, which contains preliminary reerences, the CJEUsreply and the nal decision by the national court as well as other national decisions applying Europeanlaw. Te inormation contained in JURIFAS is entered into it directly by the Associations members,with the General Secretariat responsible or translations o descriptions and summaries. Tis databasetoo is reely accessible to the public in French and English. In addition to these public components,the Association in early 2005 set up an intranet, which allows member courts both judges and sta to enter into direct contact and ask concrete questions. Tis mode o interaction enjoys considerablepopularity: according to the Associations website, by 1 November 2010, 234 members had registered andhad posted 467 messages on 155 discussion topics. Another network that ought to be mentioned in this

respect is the NPSJC, which has developed a common portal o case law that allows its members (includ-ing the CJEU) to search all the national case law databases. An online translation tool greatly enhancesthe usability o the portal. Te general public has access to the lite version o this portal, which unortu-nately excludes translations o the available judgments. Other orms o I-based interaction employed by

various networks include their website (which ofen contains a special closed-o section or members),regular newsletters, chatting lists and the EJPA even has its own blog!76

It should nally be mentioned that there is (much) collaboration between the EU institutions andnetworks created by the judiciaries. Tis can take the orm o providing nancial support. Tus, theCommission regularly co-nances the conerences, seminars and training projects organized by theAECLJ. Alternatively, the networks maintain regular contact with the institutions and ask or theirparticipation in their activities. For instance, the Association o the Councils o State and Supreme

Administrative Jurisdictions o the European Union is involved with the European Parliament, in par-ticular the Committee on Citizens Rights, Justice and Home Aairs, and with the Commission, aboveall with the Commissioners or Justice and the Legal Service. Tis collaboration is mutually benecialor both parties: the quantity, quality and pertinence o the work carried out by the networks will beenhanced and the EU institutions are aced with a ew representative interlocutors (as opposed to myriadnational courts) and kept inormed about the current challenges acing national courts in dispensing

justice.

What topics are discussed with peers?

Te answer to the question posed in the heading could be what topics are not?. Indeed, a very widevariety o issues is considered suitable or dialogue among courts. Understandably, judges like to share

thoughts about institutional and organizational issues with judicial independence and ensuring ecientand high quality justice ranking particularly high on this agenda. For instance, the 2011 congress o theCECC dealt with the general theme constitutional justice: unctions and relationships with other publicauthorities and among the topics that were discussed was the resolution o organic disputes by this typeo court and the enorcement o judgments rendered. Similarly, the NPSJC dedicated its 2008 colloquiumto the motivation o judgments and precedents and during their 2010 gathering the judges ocused theirattention on practical aspects o independence o justice.77 Since we are discussing European judicial

75 It should further be noted that the CJEU Documentaon Service and the Oce for Ocial Publicaons have acknowledged the high

quality of the DEC-NAT databank and have agreed to link this databank with the larger EUR-LEX database. Research is also being carried

out to assess the viability of connecng the DEC-NAT to all relevant naonal databases and vice versa.


77 The quesonnaire which was sent to all parcipants and served as a basis for discussion can be inspected in the networks newsleer ofJune 2009, available at the networks website.
http://www.amue-ejpa.org/blog/index.phphttp://www.amue-ejpa.org/blog/index.phphttp://www.amue-ejpa.org/blog/index.php


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networks, it is also not surprising that judicial dialogue requently concerns general topics o EU law. Acase in point is the Association o the Councils o State and Supreme Administrative Jurisdictions o theEuropean Union, whose colloquia have addressed such topics as the transposition o EU directives intonational legislation (1996), preliminary reerences to the European Court o Justice (2002), the quality oEuropean legislation and its implementation and application in the national legal order (2004) and theconsequences o incompatibility with EU law or nal administrative decisions and judgments (2008).Lastly, meetings o judges are increasingly used to discuss salient substantive questions. Tis happens inparticular in the more specialist networks, with the AECLJ or instance dedicating their 2008 conerenceto abuse o a dominant position contrary to Article 102 FEU. Tat said, the more generalist networksdo not shy away rom dealing with such questions either. Tus, the NPSJC hosted a conerence on theconsequences o the Europeanization o private law and the Association o the Councils o State andSupreme Administrative Jurisdictions o the European Union held a colloquium in 2006 on nationalroad planning and European environmental legislation: a case study.

Incentives to participate in judicial networks

Te preceding subsections have all taken as their starting point the act that judges cooperate with eachother in judicial networks and have inquired into the practicalities o this cooperation. In this section,we will take a step back and identiy a number o the incentives that (may) prompt judges to participatein transnational networks in the rst place. Te reasons that led to transnational judicial interactionmay go some way towards explaining the success (or lack thereo) o networks. We may expect judicialattitudes to dier depending on whether there is a strongly elt practical need or sharing experiences andexchanging inormation or whether the network has been put in place primarily because judges did notwant to be lef behind in the ace o other courts uniting. Further, the topics considered suitable or judicialdialogues are in large part decided with reerence to the incentives o judges to participate in networks.wo more general comments ought to be borne in mind. First, obviously, the reasons or engaging in

judicial dialogues are not (necessarily) shared among all network members, or among networks or thatmatter. Second, networks including the judicial variety tend to be dynamic structures. As networksevolve, so too may the incentives to join them: the motives that spurred on the ounding network

members may not be the same as those that persuade latecomers to apply or membership.It is possible to maintain a broad distinction between what we shall call practical incentives and

authority incentives. It will be common, however, or judges to be inuenced by a mix o both.Practical incentives are concerned with the pressures o globalization or the actors involved in the

judicial business. Participating in networks is not so much a matter o choice but o necessity to makesure judges are still able to get the job done properly in a changing environment. Te internationalizednature o litigation makes knowledge about other legal systems a prerequisite to being able to dispense

justice in an individual case. Tese considerations take on an extra dimension within the EU, with itsquest to establish a truly internal market and the ever-expanding reach o EU rules. Judges dealing withcommercial law, administrative law, consumer law and increasingly also civil and criminal law need tocooperate with out-o-state counterparts simply to make principles such as mutual recognition work.

As we have seen, this is precisely the reason or the European legislature to take the lead in establishingjudicial networks, as happened or instance with the creation o the EJN and its role in the execution othe European Arrest Warrant.

Authority incentives denote membership o judicial networks or the purposes o borrow-ing or enhancing the participating courts authority and legitimacy. Tis can take a number o orms.Judges may be motivated by a desire to exercise judicial leadership in a changing institutional setting.In particular,courts that enjoy a certain status within their national legal order could be interested incarrying over this domestic stature and position and perhaps even exporting domestic solutions into the international arena. Tis strategy acquires added prominence or judges involved in networksthat expressly seek to cooperate with the European institutions: there may be opportunities to inuencethe European agenda in accordance with domestic interests. Alternatively, judges may perceive network

membership as a helpul tool in strengthening their legitimacy vis--vis various interlocutors. Tey thenuse their participation in a transnational network to build credibility and authority outside their own


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legal system, which is subsequently imported back into that national system. For instance, within thecontext o EU law the principles o direct eect and supremacy have increased the prominence andrelevance o ordinary courts. Highest courts may perceive this as a threat to their authority and resortto judicial networking with peers in other Member States to reinorce their domestic reputation andstanding within the domestic legal order.78 Alternatively, courts could be motivated to enhance theirposition in relation to the executive and the legislature. Tis incentive may or instance persuade courtsin emerging democracies to nd strength in numbers to deend their newly acquired independence.Separation o powers considerations have also inuenced the creation o the CECC: it is in the nature othe work o its members that relationships with the other branches may be tense or politically chargedand awareness o how other courts have dealt with similar challenges may be reassuring. Finally, judges notably those in countries in transition may take part in judicial networks or reasons o internationalproling and credibility: participation is then an instrument to reassure oreign investors that the coun-try adheres to the rule o law and that property rights, legitimate expectations and the like will receiveproper judicial protection.

Some practical actors should also be mentioned that, incentives aside, are relevant in explaining thecreation and success o networks. A rst such actor is language: the networks discussed in the previoussubsections all conduct (the majority o) their activities in English, meaning that or a judge to eectively

participate in, and benet rom, those networks she or he must be procient in English. Tis explains the(continued) existence o judicial networks with a language, as opposed to more unctional, dimension:theAssociation des Cours Constitutionnelles ayant en Partage lUsage du Franais, bringing together con-stitutional courts rom French-speaking jurisdictions around the world, is just one example.79 Secondly,we should remember that judges are also citizens and, as such, representatives o their countries. Tiscan give rise to a more political dialogue, whereby the conversations that take place are not just aboutquality o legal reasoning, but about what judges want or instance, advocating a certain way o deal-ing with a legal issue. A third actor is the prominence o personalities. Specic persons may play aleadership role in a network, or instance because they are personally convinced o, and committed to,the benets o transnational judicial collaboration or because they are great judicial minds, thinking oinnovative solutions to both old and novel issues. Having such personalities on board may challenge the

traditional hegemony o courts in the larger Member States: big personalities rom small Member Statescan become leaders instead o ollowers.80 Consider or instance the proposal o the Association o theCouncils o State and Supreme Administrative Jurisdictions o the European Union or revision o thepreliminary reerence procedure: the whole process was instigated by the Dutch Council o State whichgalvanized the other members not a court rom a country one would normally expect to take the lead.One element to consider is o course what happens once these personalities leave the network and welimit ourselves here to observing that there is a clear need or empirical work in this respect.

4. Europe as network? Some normative implications

What does the rise o horizontal judicial networks mean or the European judicial order, in particular the

working relationship between the CJEU and the national courts?A rst point relates to the network concept rom the perspective o (constitutional) lawyers. As

explained in Section 2, the concept o network has been used to describe and understand a chang-ing legal reality, and is popular in political science. Tis in part may explain its transition to the legaleld. However, the popularity o networking ofen makes lawyers eel uneasy, and this is all the morethe case when it concerns judicial networks. Judges, in our constitutional traditions, speak through the

78 In this respect, consider coherence as a legimang factor as well: if naonal judicial decisions are seen to t into a broader transnaonal

seng and case law, this too could result in an increase in legimacy.

79 The language factor may gain in relevance if there is also a shared legal tradion. Think for instance of the interacons between courts

in common law jurisdicons (notably those belonging to the Commonwealth) and the central role played by the Privy Council in forging

a judicial community among them.

80 In this sense, networks may also have an eect on the pracce of cing judgments from other courts (the dialogue through case law) by

making smaller jurisdicons that one might not normally refer to more interesng because they expound the more smulang judicialvisions or ideas.


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judgments they render. Tey hide their personality behind their robes, and are not considered to be ledby personal belies and convictions. Tey must be independent and derive their authority and legiti-macy only rom the law they pronounce. Te network notion is perceived to oend against traditionalnotions o judicial independence, legal order, hierarchy, ultimate authority and uniormity. Moreover,the networking phenomenon raises undamental practical questions regarding enorcement and compli-ance o best practices agreed within a network: are mutual trust and social processes really sucient inthis respect? And perhaps even more important, how do we eel about judges using networks to developbest or common practices? In sum, networks require a change in legal thinking. In this respect, Ost andKerchove, amongst others, speak o a paradigm shif.81 Within the EU, and in relation to judicial dia-logues more particularly, the constitutional pluralism discourse helps to make this transition, given itsinsistence on moving away rom nal authority (and the combative relationship this entails) to a morenon-hierarchical (and cooperative) approach.

Second, we should note that networks thus require a paradigm shif, yet at the same time they arealso the catalyst or this paradigm shif. Judicial networks oer alternative avenues or dialogue, whichmay support the ormal legal channels such as the preliminary reerence procedure and the traditionaldialogue through case law. Misunderstandings and blockages in those dialogues may be mitigated in thenetworks. Tey oer judges the opportunity to discuss ace to ace, without having to take account o the

other participants in the wider legal debate (such as governments, legislatures and other stakeholders),using the law and legal principles as their common language. Networks, we submit, contribute to buildingmutual respect between courts rom dierent legal orders, and can be used as a orum or deliberation,an advantage that the traditional channels or dialogue do not oer. It is only under conditions o mutualrespect and open conversation that a pluralist conception o the European constitution can ourish.Tere is, however, also something deeply disturbing in this banal nding: the law needs structure, orderand coherence, and courts are usually cast as the guardians o that order.

Networks thus have the potential to increase the dialogic qualities o the relationship between theEuropean and the national courts. At the same time, they may aect the balance within that relationship.We have already pointed out how judges rom smaller Member States may become leaders in the dialogue like in the example o the Dutch Council o State and the proposal to revise the workings o the prelimi-

nary reerence procedure. Interestingly, another network (the NPSJC) joined the discussion. Teir initia-tive was taken over at a late stage by the CJEU, which hosted a symposium with members o both net-works to discuss the proposals at the premises o the Court in Luxembourg in March 2009. Te positiono the CJEU in these judicial networks and its engaging with them will be o great importance in this newenvironment where national courts are adopting a proactive approach in debating their relationship withthe CJEU. Te CJEU is a member o the Association o the Councils o State and Supreme AdministrativeJurisdictions o the European Union and participates in many activities o this and other networks. Yet,there seems to be room or improvement when considering the CJEUs activities. It is important or theCJEU to be seen to be actively engaging with the national courts, supporting bottom-up initiatives andto be taking the lead where necessary. Tis is all the more so when it concerns the European legal orderand the European judicial system itsel. ake or instance its communication strategy. Te March 2009

symposium, mentioned earlier in this paragraph, is announced on the Courts website,82

but one looks invain or a press release or more substantial document detailing what was discussed and what was decidedon. Leaving aside the dialogue with national judges through the preliminary reerence procedure, theCJEU has mainly engaged with its national counterparts through its website (or instance the Refetsthat provide overviews o recent national and international case law, legislation and some articles). Inthis respect, consider the dialogues among courts organized by the European Court o Human Rights,as alluded to earlier, or a somewhat dierent approach.83 Te Strasbourg court has an annual dialogue

81 F. Ost & M. van de Kerchove, De la pyramide au reseau? Pour une theorie dialecque du droit, 2002. See also L.F.M. Besselink,A Compos-

ite European Constuon, 2007.

82 Press release No. 24/09 of 24 March 2009.

83 In addion to the European Court of Human Rights, also consider the work of the European Commission for Democracy through Law (the

Venice Commission) in craing judicial dialogues and forging relaonships between courts in dierent countries on a variety of topics,see (last visited 8 March 2012).
http://www.venice.coe.int/site/main/Presentation_E.asphttp://www.venice.coe.int/site/main/Presentation_E.asp


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between judges on a particular theme, which is launched at the opening o the judicial year in January,with judges rom all o the Contracting States gathering in person.84 Te CJEUs communication strategymay well require adaptation to the new dialogic environment and the context o pluralism.

84 In 2010, the theme was The Convenon is Yours. See: (last visited 8 March 2012).
http://www.echr.coe.int/NR/rdonlyres/3F410EB0-4980-4562-98F1-B30641C337A5/0/DIALOGUE_2010_EN.pdfhttp://www.echr.coe.int/NR/rdonlyres/3F410EB0-4980-4562-98F1-B30641C337A5/0/DIALOGUE_2010_EN.pdfhttp://www.echr.coe.int/NR/rdonlyres/3F410EB0-4980-4562-98F1-B30641C337A5/0/DIALOGUE_2010_EN.pdfhttp://www.echr.coe.int/NR/rdonlyres/3F410EB0-4980-4562-98F1-B30641C337A5/0/DIALOGUE_2010_EN.pdf

Are You Networked Yet on Dialogues in European Judicial Networks

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