A Few Questions Raised by the New EU Judicial Training Strategy
All the recent studies I am aware of on the application in practice of the EU private international law instruments claim that legal practitioners are not aware of the regulations/directives, or do not know how to apply them. They conclude there is a need for training.
Having been a University professor for now some years, my first spontaneous reaction to such assertion is always inward-looking: we (lecturers, professors) are being told that what is done at the Universities is not enough. Indeed, it would be naïve to believe law schools alone produce PIL experts. However, I can’t help wondering where higher education stands in the Commission’s pursuit of the “correct and uniform application of EU law” which should “built mutual trust in cross-border judicial proceedings, thus helping to develop the EU area of justice”.
The quotes belong to the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Ensuring justice in the EU — a European judicial training strategy for 2021-2024, published in December 2020, which explains the focus and scope of training in EU law for the years to come: the rule of law (upholding fundamental rights), upscaling the digitalisation of justice (prepare justice professionals to embrace digitalisation and the use of artificial intelligence ), keeping pace with developing EU law. A strategy addressed to judges, but this time also to other stakeholders: mediators, legal interpreters and translators, court experts, court staff, lawyers, even probation officers.
Higher education is not mentioned once. It does not necessarily mean that the Commission has not it in mind. Surely there are other initiatives one could find digging further. And then, most probably there are also issues of competence; the responsibility of educating future professionals lies primarily with the Member States (which is why the Bologna process will, in my view, never achieve its ultimate goal).
Be it as it may: for PIL fans in general (ie., beyond the University crowd) there is in the Communication a further fact to worry about. Cross-border cooperation is expressly mentioned and reference made to key EU instruments for cross-border judicial cooperation, at p. 3:
European judicial training should enable justice practitioners to see the role of EU law in their daily practice, give it full effect and secure the respect of rights and obligations stemming from EU law in national judicial proceedings. It is also important that they keep up to date with the development of EU law. Any new legislation and CJEU case-law developments necessitate training if they are to have the intended effects and justice professionals are to have the requisite knowledge and skills. In particular, this applies to the key EU instruments for cross-border judicial cooperation.”
Great, except that thereafter only cross-border cooperation in criminal matters is referred to.
Has the Commission forgotten judicial training regarding the EU regulations in civil and commercial matters? What does this absence entail in terms of funding of training activities?
A look into the website of the European Judicial Training Network shows how little place is left for European private international law and procedural law. Until June there is no activity planned on any of our core topics. In June, there will be a seminar on “Cross-border civil cases” (program not available yet; which kind of cases are meant is therefore not clear); and another one entitled “Jurisdiction, recognition, enforcement of judgments and determination of the applicable law under Regulation 1215/2012 (sic). The new Insolvency Regulation 848/2015”. Nothing else afterwards.
Of course, the EJTN is not the only training service provider. Three other well-known ones are the Academy of European Law (ERA), the European Institute of Public Administration (EIPA), and the European University Institute (EUI). In addition, the Justice Programme of the European Union supports as well national projects, such as FRICoRE. It may be that one or some of those offer seminars covering cross-border cooperation in civil and commercial matters. After consulting the program at the ERA until June, I am not too optimistic, though: there are many interesting activities, but only two relate directly to “our” topics.
In addition, I am not sure about what it means to be a “service provider”, in terms of how much of the training is publicly funded and how much attendants have to pay themselves; if I am not wrong, the seminars and workshops of the EJTN are for free, while the rest are not. On the side of the training experts there is probably not much difference: at least in our field colleagues are called to teach both by the EJTN and by the other providers; hence the quality of the training should be the same. But access to training is definitely not.
The European judicial training strategy of the Commission for the years to come foresees as well the launch of the European Training Platform (ETP), defined as “a search tool put at the service of legal practitioners and justice professionals who want to train themselves on any practice area of EU law or related matters”. It is too early to have an opinion on the platform. However, as of today, it is not a promise of open-access, neither to the courses nor to the materials. According to the information on the website, “The training providers inform potential trainees about the training activities they organise everywhere in the EU and in different languages.” So, at first sight the ETP will just be a repository of activities planned and undertaken by the four institutions indicated above. Not much of a step further regarding access to training.
On a less pessimistic note, it is true that the message goes on saying “The European Commission contributes to the platform with ready-to-use training materials or handbooks produced notably thanks to EU financial support”. And later in the webpage one can read “You will find many training courses on EU law advertised on the European Training Platform as well as training material for self-learning”. Maybe this means that training packages and publications will at some point be available to all stakeholders as in a public library. To be seen but… let’s hope.
Many thanks, Marta. You’ve hit the nail on its head: All the efforts that go into the various texts on European Private International Law are in vain if judges ignore them. In the past, ERA did a very good job in imparting knowledge about the subject to judges. I have had the opportunity to teach the latest developments on the Brussels Ibis Regulation to Austrian and Finish judges in ERA colloquia. If I am not mistaken, the judges did not have to pay themselves, but the cost was borne by their respective Member State. Sad that the focus seems to have shifted to other topics.
Thanks for your reaction, Matthias.
It’s not only sad but a matter of concern. Another example of possible neglect: cooperation in criminal matters is addressed in the context of Brexit; judicial cooperation in civil matters is not.
To my mind, a good indicator of the need to train judges in PIL instruments is the fact that references for preliminary rulings keep on being sent to the CJEU. The number is not low. And, what is more, it should be read correctly: many courts/judges with doubts do not trust themselves to ask the Luxembourg Court (which is also telling about the need to be trained… but maybe a topic for a different post).
Thank you Marta for bringing this up. I agree with you that sometimes the judicial cooperation in civil matters seems to be left on the side.
From an academic perspective and following Bologna reform, in many countries PIL has become an elective which students avoid to some extent because of its complexity and because of the perception it is a difficult topic. So, there is the tendency to choose something perceived as ‘easier’. But maybe not all is lost, from time to time there are also some small satisfactions, students writing back to mention how useful PIL lectures have been for their present legal work. So, maybe it is hope for better trained PIL practitioners in the future. The PAX Moot competition is, I hope, an additional tool for attracting students to this area and get them interested in PIL.
Training or continuous training of professionals and judges is also important. The diversity of courses and quality varies. Maybe the new European Training Platform will help make various materials and courses visible to a larger public of interested professionals. This can potentially offer practitioners who are not able to afford the courses offered by well-known organisations some good alternatives. For the EJTN there should be also a training on PIL instruments in April.
My perception is that it may be to a certain extent easier (to be read also cheaper or potentially free) for judges to access the courses offered by various organisations. For lawyers, it may be a bit more challenging. As a Romanian lawyer, although ERA courses were always notified to us at the level of the law firm, the issue was always about how expensive they were. This made it difficult for younger professionals to access them, even at big law firms. There is still some improvement to be done in this area.