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The second 2020 issue of RabelsZ is now available online. It features two essays as well as the contributions to a Symposium on career paths into legal academia held at the Max Institute in June 2019:

Lord Hodge, The Scope of Judicial Law-Making in the Common Law Tradition, pp. 211 et seq

Judge-made law is an independent source of law in common law systems. To jurists brought up in legal systemswhich have codified law, this is one of the striking features of the common law tradition. Instead of interpreting a code to develop the law, common law judges develop the law which their predecessors have made. While statute law nowimpinges on many areas of private law, large tracts of our private law remain predominantly the product of judicialdecisions. [In this contribution] I wish to discuss some of the areas of private law which have been and remainpredominantly judge-made and the limits in the common law tradition on judicial law-making.

Markus G. Puder, Law and Language in Action. Transformative Experiences Associated with Translating the Louisiana Civil Code into German, pp. 228 et seq

In the course of translating the Louisiana Civil Code into German I had to overcome the unique challenges posed bythe source text and the receptor text. Beyond the translation issues stemming from its own bilingual origins, theLouisiana Civil Code codifies mixed law in unprecedented ways. Different but no less challenging conditionssurrounded the destination text, as distinct species of legal German exist. In addition to the legal German of Germany, these include the legal German of Austria and Switzerland. Resolving these challenges required tailored translationapproaches within the spectrum of source text and receptor text orientation. My article discusses the challenges I encountered and the decisions taken in response. It concludes with final thoughts on my experiences as legal translator and legal comparativist.

 

SYMPOSIUM: Career Paths into Legal Academia

Reinhard Zimmermann, Akademische Karrierewege für Juristen im Vergleich. Einführung in das Symposium (Career Paths into Legal Academia Compared. Introduction to the Symposium), pp. 264 et seq.

By highlighting characteristic aspects of an academic career in the United States, the present contribution attempts toprovide an interesting contrast to the career paths into legal academia available in the countries on which thesymposium, held in the Hamburg Max Planck Institute in June 2019, focuses. The countries considered in thesymposium are Germany and Austria, France, Italy, England and Scotland, and Japan. Here, too, we find considerable differences which both shape different legal cultures and are shaped by them.

Walter Doralt, Akademische Karrierewege für Juristen in Deutschland und Österreich (Career Paths into Legal Academia in Germany and Austria), pp. 268 et seq.

Seen from a distance, it is often presumed that career paths in law and legal education in Austria and Germany arevery similar. This assumption is also widely held in Germany (with regards to Austria). Some similarities do indeedexist. However, many aspects during the university education are surprisingly different in both countries. Equally, thisis true for subsequent career stages in academia. This article analyses the common points and differences.

Dorothée Perrouin-Verbe & Samuel Fulli-Lemaire, Career Paths into Legal Academia in France, pp. 299 et seq.

It is likely that a description of the way university careers unfold in France, at least as far as law is concerned, will surprise even seasoned observers of the academic world. Not everything, naturally, will appear outlandish: that the single most important precondition is having a PhD thesis is perhaps to be expected for a civilian jurisdiction; that the overall system is centralized will not astonish those that have come into even superficial contact with the country. But the extent of that centralization, the sheer number of unwritten rules, the relative lack of importance attributed to publications and the specificities of the agrégation, the competitive exam which serves as the main point of entry into the body of law professors, as well as the acceleration it is designed to provide to young academics’ careers, may surprise some readers.

Francesco Paolo Patti, Career Paths into Legal Academia in Italy, pp. 324-350 (27)

The present contribution aims to explain the relevant steps in the Italian academic career path and its most relevant traits. It is divided in three parts. The first contains a brief outline of the Italian legal framework on universityrecruitment and its evolution over the last forty years. The various structures are presented in a synthesised and simplified way, with the purpose of indicating the rationales underlying the different reforms. After having sketched out the playing field, the article describes a typical Italian academic career and points out the unique aspects of each stepon the long path of academia, from university graduation to the call as full professor. Finally, the paper outlinesfundamental features of the Italian academic social environment, which are essential to understand how the rules on university recruitment actually work in practice. Needless to say, the last part is the most important one. In addressingthe subject matter, it is not possible to limit the treatment to a description of the rules and their rationales as there areseveral non-written rules belonging to the Italian academic tradition that need to be presented in order to understanduniversity recruitment in actual practice. Aspects discussed in the present contribution concern especially the field of private law.

Andrew Sweeney. Career Paths into Legal Academia in Scotland, pp. 351 et seq.

This contribution deals with the smallest country represented at the symposium. Its size, however, is not the solefeature that distinguishes Scotland from the others. As a legal system, Scotland sits exactly neither with theContinental systems (represented here by Germany, France and Italy), nor with England. It is, instead, often describedas a mixed legal system, sharing features with both Civilian and Common-law systems. […] This [contribution] focusesprimarily on the position in Scotland. But much of what is discussed will be equally applicable to an English academic, and it is easy to overstate the differences between the two jurisdictions. Where interesting differences exist betweenthe two jurisdictions, an attempt has been made to point them out. […] Space constraints restrict the assessment to a select few of the myriad of subjects which the topic of academic career paths could include, and some of thoseselected are permitted only a cursory glance. Particular focus is given to a career in private law, and it must be bornein mind that differences – sometimes significant ones – exist in other areas such as criminology, legal theory and legal history.

Harald Baum, Akademische Karrierewege für Juristen in Japan (Career Paths into Legal Academia in Japan), pp. 374 et seq.

The landscape for an academic legal career in Japan shows some striking differences from its German counterpart. While in Germany a large number of qualified young academics struggle to secure a university posting, Japanese lawfaculties presently face difficulties in filling free positions. A second major difference is the way in which an academiccareer is achieved. In Japan, in-house, tenure-track careers are the norm whereas, at least up until now, they are a rare exception in Germany, where it is highly unusual to be appointed by the university where one has obtained his orher academic qualification. Accordingly, a change of universities in the course of an academic career is rare in Japan while in Germany the opposite is true. Japanese law faculties are entirely free to determine the qualificationsnecessary for an academic promotion. A second monograph, like the German »Habilitation«, is unknown in Japan. A PhD thesis, however, is increasingly common. The typical academic career starts after four years of undergraduatestudies, followed by a two-year period of study at graduate level or, alternatively, two years of training at a law school. Thereafter, a three-year doctoral programme has nowadays become the norm. This is followed by employment as an assistant, and in the event that the candidate’s qualifications are seen as sufficient, by a promotion to the position of associate professor. The latter is a member of the faculty and employment is no longerlimited in terms of duration. The final step is promotion to full professorship at the average age of 36 to 40.

Commission / Pologne
Principes du droit communautaire
La Pologne doit suspendre immédiatement l’application des dispositions nationales relatives aux compétences de la chambre disciplinaire de la Cour suprême au regard des affaires disciplinaires concernant les juges

A late-ish flag to keep an eye on Greenpeace’s class-action suit filed in the Austrian courts to have the Austrian tax breaks on air traffic (tax exemption on kerosene fuel for domestic flights and a VAT exemption on international flights) lifted. It is certain to engage the Chicago Convention and the European implementation of same. The argument is inter alia that the non-exemption for rail is a form of State Aid to the airlines. I wrote on the issues in 2016, featuring T-351/02 Deutsche Bahh, arguing that the CJEU could have forced the issue then. What would be most excellent would be for the Austrian courts to refer to Luxembourg so as the CJEU may revisit the issue 14 years on from the judgment of the then Court of First Instance, in a world were many look a lot less forgivingly at the exemptions’ implications for internalising negative environmental externalities.

Geert.

EU environmental law (with Leonie Reins), Edward Elgar, 2018.

 

BREAKING: first ever climate change case directly targeting aviation emissions, as @GreenpeaceAT asks Austria's Constitutional Court to repeal laws offering tax credits on plane fuel, alleging violation of international human rights law, Articles 2/8 ECHR.https://t.co/Bmozqd8M3b pic.twitter.com/B0p1MKGrh5

— Sam Varvastian (@SamVarvastian) February 20, 2020

 

The raising of a problem child

The creation of the European Patent Court has been fraught with difficulties. After Spain and Italy had impeded its establishment for linguistic concerns, it was embedded in 2013 in an international treaty, the Agreement on a European Patent Court. In March 2017, the German Parliament (Bundestag) passed a law ratifying the Agreement. A mere 35 of its more than 600 members were present at the vote.

A patent lawyer with a constitutional hunch

Patent lawyer Dr Ingve Björn Stjerna from Düsseldorf was unhappy. He saw his right of democratic representation, protected under Art 38 of the German Constitution (Grundgesetz), being violated. That is why he brought a constitutional complaint against the law by which the German Parliament had consented to the Agreement.

A court concerned about German sovereignty

The German Constitutional Court (Bundesverfassungsgericht) affirmed the complaint. It declared the German act assenting the Agreement to be void. In the view of the majority of the Justices, the procedure in which the law had not been adopted was defective. The act would require the consent by at least two thirds of all members of Parliament and of the Federal Council (Bundesrat), which is necessary normally only for amendments to the text of the Constitution (Art 79(2) German Constitution).

The rationale of this ruling was the following: In the Court’s view, the act ratifying the Agreement on the European Patent Court materially alters the German Constitution. By creating a new international court, Germany would transfer sovereign powers, which it would find impossible to regain later. As a result, German citizens would no longer be able to influence the exercise of the state powers through their vote. Hence their right of being democratically represented would be violated.

A dissenting opinion concerned about European integration

The decision was rendered by a 5 to 3 majority. In a dissenting opinion, the minority criticised the Court for having overstretched the right of democratic representation (Art 38 of the German Constitution). The latter would not be put into question by a merely formal mistake in the legislative procedure. Furthermore, the dissenters warned that the position taken by the majority would endanger further European integration, which enjoys constitutional status in Germany.

Assessment

It is remarkable that the Constitutional Court requires a majority of two thirds of the Parliament for the act ratifying the Agreement on a European Patent Act. Can it really be said that this act amounts to a change of the German Constitution? Doubts are in order.

The court also conveniently ignores that judges are not elected representatives. It is therefore strange to invoke the right of democratic representation to invalidate such a law.

Even more peculiar, from an outsider’s view, must seem the fact that a single person can trigger the constitutional review of a legislative act based on merely formal errors. This creates opportunities for putting spanners in the work of the legislative procedure.

The German Constitutional Court’s emphasis on sovereignty is odd and throws a spanner in the works of further European integration. There seems to be an agenda behind this. Mind you that this is the same chamber of the Court that has repeatedly questioned the legality of monetary policy measures by the European Central Bank.

Fortunately, most other Member States do not have courts with similar far-reaching powers and extreme positions. But already, some – like Hungary – are starting to imitate Germany and endow their Constitutional Courts with powers to control the EU and its institutions. If more were to follow that path, this would surely be the end of European integration.

The Upshot

The decision by the Constitutional Court does not make the creation of the European Patent Court impossible. The German Parliament and the Federal Council have to vote for the law once more with two thirds of their members. However, precious time will be lost again.

Access to justice in times of corona

When COVID-19 makes the case for greater digitalisation of justice

Written by Emma van Gelder, Xandra Kramer and Erlis Themeli, with thanks to Georgia Antonopoulou, Alexandre Biard and Betül Kas (Erasmus University Rotterdam, ERC-Co project ‘Building EU civil justice: challenges of procedural innovations – bridging access to justice’)

The disruption of society has naturally also affected our justice system. While there is no total lockdown in The Netherlands, as of 16 March people working in non-vital sectors are required to stay at home, schools and universities are closed, and events and social gatherings are forbidden. These measures also meant that courts in the Netherlands had to restrict their daily activities. All courts were closed on 17 March and will stay closed in any case until 28 April 2020. This means that most court proceedings are postponed for the time being. To proceed with continuing obligations and proceedings, thereby ensuring ongoing access to justice, judiciaries around the world are increasingly adopting various forms of technology in their court procedures.

This blogpost sets out the Dutch approach of the judiciary to the COVID-19 crisis, and highlights some global examples of other approaches.

COVID-19’s disrupting effect to the functioning of the court system

COVID-19 caused a sudden lockdown of courts. Court hearings are delayed, resulting in complaints that the backlog in the judiciary will grow, and attorneys have urged for more cases to be processed. Against the background of the health safety measures by the RIVM (National Institute for Public Health and the Environment), the public is temporarily no longer allowed to attend the few court hearings that still do take place. The lockdown of courts and offices emphasises the need for remote access to courts and better communication between courts and their constituents.

The adoption of a General Regulation during the COVID-19 crisis

The Dutch Judiciary has taken steps to respond to these problems by adopting a general regulation on case-handling by the Judiciary during the COVID-19 period. This general regulation was the result of the proposal for temporary emergency COVID-19 legislation (spoedwetgeving COVID-19 Justitie en Veiligheid ), proposed by the Minister of Legal Protection, Sander Dekker, and by the Minister of Justice and Security, Ferdinand Grapperhaus. This proposal for legislation allows communication that normally is prescribed to take place physically, to take place through electronic means, such as audio or video livestream. Moreover, it enables annual general meetings to be held online or a testament by a notary to be signed online.

The Dutch Judiciary has created general rules on case-handling by the Judiciary during the COVID-19 period. The starting point of this regulation is that the courts will continue to deal with urgent cases, which are divided into serious urgent cases and other urgent cases. Urgent cases include certain hearings in criminal cases, insolvency cases, and family cases, particularly those concerning child protection. Judges work with digital files and have secured remote access from home. Law firms are also expected to have their staff working from home whenever possible, though not all law firms are closed.

The General Regulation deals among others with the attendance of courtroom hearings (Para. 1, sub 1.1 General Regulation), the use of secure email (Para. 1, sub 1.2 General Regulation) and closed hearings (Para. 1, sub 1.3 General Regulation). In principle oral hearings with the physical attendance of the parties will not take place during the COVID-19 period, unless the judge decides otherwise. Both serious and other urgent cases will take place as much as possible in writing or through telephone (video) connection. If the judge decides that an oral hearing with physical presence of the parties should take place, the guidelines of the RIVM are taken into account. Where possible, livestreaming will be used. Procedural guidelines that allow documents and messages to be sent through post or fax, can be sent via a safe email channel of the Judiciary.

Positive side-effects

Often, radical innovations are dictated by crisis. A positive side effect of the current health crisis is that it may boost the digitisation of the judiciary that has been severely hampered in the Netherlands (see our blogpost on EUCP; more extensively: Xandra Kramer, Erlis Themeli and Emma van Gelder, e-Justice in the Netherlands: The Rocky Road to Digitised Justice, 2018). To enable the functioning of the General Regulation, the IT department of the judiciary has extended the facilities for a telephone and video connection between the judiciary and external parties. Another side-effect boosting digitisation in the Dutch Judiciary regards the introduction of secure email to be used by parties and for filing procedural documents and communicating messages as of 9 April 2020. Several safeguards are required for the use of email, regarding the subject of the email and the capacity of the attachments to the email. Regarding signatures, no digital signature is prescribed, but a ‘wet’ signature scanned and uploaded through PDF (see para. 1.2.4 under 6 of the General Ruling). The moment of receipt of the e-mail within the secured email system of the Judiciary counts as the time of receipt (see para. 1.2.5 of the General Regulation).

Perhaps the most important side effect of this crisis would be the experience with these implemented facilities. Using remote access to courts, secure emails, video conferencing and other electronic means for a protracted period will provide the Ministry of Justice and Security important lessons on how to better utilize these. Video conferencing is of course not new in the Netherlands, but it is not used at a wide scale, particularly not in civil cases.

Challenges

While these side-effects must be praised, in reality there are a number of challenges caused by this ‘sudden’ shift towards digitisation that cannot be neglected. The lack of face-to-face contact results in an absence or lesser extent of non-verbal cues such as body language, tone of voice, facial expression. Especially in family law cases – often involving emotional discussions – this may prove a challenge and can risk miscommunication. Another challenge relates to the identification of parties; if e-mail is used, it can be difficult to ensure that the documents are also received by the correct person. In the Netherlands, judicial officers play an important role in securing the correct service of documents. Another challenge – although less relevant in the Dutch context – relates to vulnerable users having no or limited access to the internet or having minimum skills with digital technology. The absence of an offline channel forms a challenge for access to justice in certain cases.

The exclusion of public attendance during a court hearing, challenges the principles of a public hearing and transparency. To counter these challenges, attendance of maximum of three journalists is still allowed, and more decisions are published on the website of the judiciary (rechtspraak.nl). For example, the website of the administrative law department (Afdeling Bestuursrechstpraak) of the Council of State, states that decisions are temporarily published online and posted on their internal website and rechtspraak.nl.

Also, across the Dutch borders, examples of challenges are found. For example, small criminal cases in France – such as ‘immediate appearances’ (comparution immédiate), rarely allow for online hearings or other forms of digitalisation.

In Germany, since 2013 § 128a ZPO (German Civil Procedure Code) gives the possibility of using video-conferences for the oral negotiation and the hearing of evidence in civil litigation. Although all German states have equipped their judiciaries with the necessary technology, they are not widely used in practice. The current approach to face the corona crisis consists rather of the postponement of non-urgent proceedings. However, first signs towards a stronger move of the digitization of justice appears to be driven by the judiciary of Nord-Rhine-Westphalia.

Other global developments

Similar approaches to the COVID-19 crisis can be seen around the globe.

For instance, the UK has adopted the Coronavirus Act 2020 (hereinafter: Act). Regarding provisions on digitisation, Point 53 and 54 of the Act enshrine the expansion of the availability of live links in criminal proceedings and in other criminal hearings. Furthermore, point 55 and 56 of the Act rule that public participation in proceedings will be conducted by video or audio, and live links are used in magistrates’ court appeals for requirements or restrictions imposed on a potentially infectious person. The Economist, quotes in a paper of 4 April 2020, that before the COVID-19 crisis, about 200 cases a day were being heard at least partially via conference-call and video link in the UK. By March 31st this number had increased to around 1800 cases.

Richard Susskind, launched a new website at the outset of the corona crisis, in order to create a platform to share experiences of ‘remote’ alternatives to traditional court hearings. The website provides an overview of interesting developments on a global level. In any event, Susskind can be delighted as he has noted a sudden spike of sales of his recent book ‘Online courts and the future of justice’.

In Italy, the Court of Cassation uses video technology to decide appeal cases. It required an adaption of the procedural rules to allow video connection for the judges unable to travel due to the COVID-19 crisis.

In Canada, some courts are encouraging counsel and the public to use alternative dispute resolution forms in order to reduce delays now that many court hearings are postponed for the time being. The use of technology in out-of-court dispute resolution is more widespread and accepted, resulting in various forms of online dispute resolution (ODR). For example, in the COVID-19 period, ODR procedures offer benefits of virtual hearings centralizing disputes regardless of geographical distances between parties, paperless processes, flexibility and convenience enabling parties to participate from their own home computer. Positive side-effects are cost and time reductions as online procedures eliminate inter alia travel costs. In any case, the Covid-19 crisis may lead to a ‘wake-up’ call among lawyers and parties to consider the ability of ODR/ADR as a viable option of dispute resolution.

In Colombia, on 19 March new procedural rules were enacted to allow for virtual conferences and videoconferencing in Colombian Courts.

In Brazil, Brazilian courts work with the Cisco system enabling videoconference for court proceedings.

Also in Kenya, digitalisation is welcomed, as a Kenyan Judge has used Zoom for remote hearings and is now planning to oversee more than 20 court hearings over video link, including verdicts, rulings on appeals as well as applications.

Conclusion

It remains to be seen if the rapid uptake of digitisation will continue after the COVID-19 crisis comes to an end. In any case, the present health crisis shows the ability to implement emergency legislation and of the judiciary to amend a vast array of procedures in a short period of time.

Dans deux messages aux parties du 30 mars, les institutions juridictionnelles européennes ont détaillé les mesures procédurales prises en raison de la pandémie liée au coronavirus. 

en lire plus

Pour lutter contre le vol des avions à vide, appelés vol fantôme, l’Union européenne a adopté le 30 mars un règlement modifiant les règles concernant l’attribution des créneaux horaires dans les aéroports de l’Union. 

en lire plus

Sánchez-Bordona AG issued his opinion in C‑343/19 Verein für Konsumenteninformation v Volkswagen last Thursday. He relies heavily of course on CJEU authority almost all of which is reviewed on the blog – with Tibor Trans making a star appearance given its recent nature as well as its focus, like in Volkswagen, on financial damage.

Not long after, yesterday, the High Court in England in [2020] EWHC 783 (QB) held on a first preliminary issue in the class action suit pending there. Matthias Weller has already reviewed that judgment here. In that judgment, a lex causae argument on the binding authority of a German public body’s decision was advanced by claimants in subsidiary fashion. This was not entertained by the High Court for it had already found a binding effect on other grounds. Incidentally, the nature and timing of the High Court’s ruling suggest that there is no contestation of jurisdiction being brought forward by Volkswagen – I am enquiring with counsel in the case.

Returning to CJEU C-343/19, though: Raphael de Barros Fritz has analysis here and I am happy to refer, for timing for the release of my own ponderings on the Opinion suffered from a Friday afternoon call on injunctive relief and jurisdiction. A few additional notes of interest and subject to further pondering:

Firstly, the AG is too kind when he suggests that the Brussels Convention had left open the (now) Article 7(2) question. The Court’s locus damni /locus delicti commissi distinction was not at all required by then Article 5(3). Much as the distinction may have been clear to make in the Bier case itself, it was not at all advanced by the text of the Brussels Convention. Many of us have been pointing out the fallacy, including Cruz Villalon AG in his Opinion in Pez Hejduk, case C-441/13 which I reviewed here and Szpunar AG in his Opinion in Universal Music reviewed here. As Sánchez-Bordona AG points out in Volkswagen, the distinction has become a paradigm (at 2); ‘obstinance’ might also be a good word for it. The result of the CJEU refusing formally to reverse its Bier distinction, means itself and the national courts have been having to conjure up all sorts of distinguishing to respect both the Handlungsort /Erfolgort distinction, and the predictability of Brussels Ia as well as the need to interpret special jurisdictional rules restrictively.

Raphael makes a most valiant effort to do justice to the AG’s attempt at systemisation, yet the reality remains that most certainly on the locus damni front, the ever unclearer distinction between direct and indirect aka ‘ricochet’ damage is a Valhalla for reverse engineering – and we have not even thrown Lazar into the mix.

The AG suggests that not only the first purchasers of the vehicle may be direct victims, but also downstream purchasers of second-hand vehicles, however in each case constrained (if I understand the Opinion properly) to those purchasers, first or not, where the loss of value of the vehicles did not become a reality until the manipulation of the engines was made public: at 41; ‘ The loss of value of the vehicles did not become a reality until the manipulation of the engines was made public. In some instances, the applicants may be end users who obtained the vehicle from another, previous buyer; however, the latter did not experience any loss because, at that time, the damage was latent and was not disclosed until later when it affected the then owner. Therefore, it is not possible to describe the damage as being passed on from the original buyers to successive buyers.’

Further, given that the location of the vehicle is unforeseeable, the Advocate General considers that the place where the damage occurred is the place where that transaction was concluded, pursuant to which the product became part of the assets of the person concerned and caused the damage. However even for these cases other elements (per Universal Music) will have to be shown to avoid forum shopping and for these other elements, the AG suggests in particular a minimum contacts rule such as in US conflict of laws: at 75: ‘the defendant’s intention to sell its vehicles in the Member State whose jurisdiction is in issue (and, as far as possible, in certain districts within that State).’

On locus delicti commissi, the AG suggests at 34 that the event giving rise to the damage in this case consists of the installation, during the vehicle manufacturing process, of software which alters the vehicle’s emissions data. I do not think that is the only possible Handlungsort: other events in the Dieselgate chain arguably may qualify as Handlungsort, too: the executive decision to go ahead with the program, for instance. Or the regulatory steps (including type approval under EU law such as discussed in [2020] EWHC 783 (QB), above; or other steps required under EU or national law) needed to market the product in the country.

The last words on this Opinion have far from been said.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2.7