The Framework for Judicial Cooperation in the European Union: Unpacking the Ethical, Legal and Institutional Dimensions of 'Judicial Culture'

• Author: Elaine Mak, Niels Graaf, Erin Jackson
• Position: Professor of Jurisprudence at Utrecht University, NL/PhD candidates at Utrecht University, NL
• Pages: 24-44

Elaine Mak, Niels Graaf and Erin Jackson, ‘The Framework for Judicial

Cooperation in the European Union: Unpacking the Ethical, Legal and Institutional

Dimensions of ‘Judicial Culture’’ (2018) 34(1) Utrecht Journal of International

and European Law pp. 24-44, DOI: https://doi.org/10.5334/ujiel.452

UTRECHT JOURNAL OF

INTERN

ATIONAL AND EUROPEAN LA

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RESEARCH ARTICLE

The Framework for Judicial Cooperation in the

European Union: Unpacking the Ethical, Legal and

Institutional Dimensions of ‘Judicial Culture’

Elaine Mak*

, Niels Graaf† and Erin Jackson†

Possibilities and constraints for achieving legal unity in the context of the European Union

(EU) manifest themselves in multiple and illustrative ways in the development of cooperation

between judges in EU Member States. For example, recent discussions on judicial independence

in Hungary and Poland underline that we are still quite far removed from the realisation of a

shared European normative basis for judicial functioning, that is: a shared ‘judicial culture’.

These discussions simultaneously emphasise the importance of such a basis for the realisation

of the ideal of the ‘rule of law’. As a stepping stone for future interdisciplinary legal research,

this article provides a theoretical analysis of the concept of ‘judicial culture’ and three of its

core dimensions (ethical, legal, institutional), which has not been available in legal scholarship

so far. Our analysis demonstrates that by carefully establishing in which types of sources we

can locate the respective dimensions, and by designing a methodology for analysing these

sources, scholars can analyse judicial cultures in a more in-depth and systematic manner. In this

way, specic conceptual ‘lenses’ become available for the collection of relevant information and

empirical data, for the theoretical analysis and comparison of these results and eventually for

a normative assessment of the possibility and desirability of convergence of judicial cultures.

From this perspective, this analysis aims to contribute to further insight into questions on legal

unity and its realisation in a context of diverging social pressures.

Keywords: judicial culture; European Union; judicial ethics; judicial trust; judicial role perceptions;

legal unity

I. Introduction

Political measures taken against judges in Hungary and Poland in recent years have drawn criticism from

European governmental and judicial bodies – such as the European Commission, the Court of Justice of

the European Union (CJEU) and the European Court of Human Rights (ECtHR) – as well as from groups

of national actors from different Member States of the European Union (EU) – such as European judicial

networks. As an example, the ‘rule of law crisis’ in Hungary led to the dismissal of Justice András Baka,

who had expressed criticism on intended judicial reforms, from his position as President of the Supreme

Court (Kúria) in 2012. This dismissal was later held by the ECtHR to violate Article 6 paragraph 1 and Arti-

cle 10 of the European Convention on Human Rights.1 Baka also received support from his peers in the

Network of Presidents of the Supreme Courts of the EU, of which he was the elected President at the time

of the termination of his judicial mandate.2 This example clearly underlines that the guarantee of judicial

* Professor of Jurisprudence at Utrecht University, NL. Contact: e.mak@uu.nl.

† PhD candidates at Utrecht University, NL.

1 Baka v. Hungary [2016] EHRC 2014/177.

2 Simone Benvenuti, ‘Building a Common Judicial Culture in the European Union through Judicial Networks’ (2013), paper

presented at the Conference the RC09 2013 Interim Meeting on ‘The Changing Nature of Judicial Power in Supranational, Federal,

and Domestic systems’, 22–24 July 2013, Dublin, 1–47, 18. 1/Building_a_Common_Judi-

cial_Culture_in_the_European_Union_through_Judicial_Networks> accessed 23 March 2018.

Mak et al 25

independence of judges in European States no longer is purely a matter of national concern.3 At the same

time, it clarifies that national interpretations of and the de facto respect for the principle of ‘judicial inde-

pendence’ vary in connection with views and traditions on the judicial function that have developed over

time in national legal orders. Therefore, it seems that we are still quite far removed from the realisation of

a shared European normative basis for judicial functioning – or using another term, which will be clarified

in this article: a shared ‘judicial culture’. Realising such a normative basis is important, as it would serve the

achievement of legal unity in conflict resolution, law enforcement and the protection of rights in the EU

as well as cooperation between judges in EU Member States on the basis of “mutual confidence and trust”.4

What these developments in Poland and Hungary share, therefore, is that they direct attention to the fol-

lowing question: can a ‘European judicial culture’ between Member States of the EU be achieved? This, in

turn, leads on to the question of how we might measure a ‘judicial culture’: what does this concept mean

and how can we contextualise it with regard to judicial systems in the EU?

Before embarking on our theoretical analysis, we will first sketch the factual background of cultural

aspects that emerge in relation to the evolving judicial cooperation in the EU. This preliminary investigation

clarifies the importance of judicial cultures in the EU and introduces our research design for answering the

above mentioned research questions (II.). The analysis in this article then addresses the meaning of the con-

cept of ‘judicial culture’ as a theoretical notion (III.). Next, we analyse the contextualisation of this concept

with regard to judicial systems in the EU, focusing on the three main dimensions of judicial culture that

emerge from our theoretical analysis: ethical, legal and institutional (IV.). Finally, some concluding remarks

are made regarding the added value of this conceptual framework for future research on judicial systems in

the EU and their possible alignment (V.).

II. Why Judicial Culture Matters

The above mentioned questions tie in with the European Commission’s agenda for judicial cooperation. The

ambition to strive for a shared judicial culture was first articulated in April 2010 by Viviane Reding, then

Vice-President of the European Commission responsible for Justice, Fundamental Rights and Citizenship.

Reding underlined the necessity for further alignment between judicial systems after the entry into force

of the Lisbon Treaty (2009).5 This Treaty has increased the EU’s competences regarding judicial coopera-

tion in civil and criminal matters (Title V of the Treaty on the Functioning of the European Union) and has

given legal force to the Charter of Fundamental Rights of the EU (2000). In this context, the objectives of

providing effective legal remedies and human rights protection in the EU create a strong impetus for align-

ment of national judicial values and procedures. The current Commissioner, Věra Jourová, has adopted this

agenda and focuses on the enhancement of mutual trust between the judiciaries of Member States through

European judicial training and improved access to information.6

More unity between European judicial systems is also promoted from another direction. Beside the ‘top-

down’ developments from the European Commission, we can identify a ‘bottom-up’ tendency of alignment

between the judicial systems of EU Member States. Aspects of these systems have converged under the

effects of European legal integration and globalisation of laws and legal systems. On the one hand, EU har-

monisation has occurred with regard to substantive laws and procedures and institutional aspects of judicial

organisation.7 On the other hand, judiciaries in Europe have aligned their interpretations of legal con-

cepts and their working methods to a certain degree through the institutional dynamics of ‘transnational8

3 The Court of Justice of the EU has confirmed that the guarantee of judicial independence falls within the sphere of EU law as a require-

ment to ensure effective judicial protection. Case C-64/16 Associacao Sindical dos Juizes Portugueses [2018] ECLI:EU:C:2018:117.

4 European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic

and Social Committee and the Committee of the Regions Building trust in EU-wide justice: a new dimension to European judicial

training (13 September 2011) 2. riServ/LexUriServ.do?uri=COM:2011:0551:FIN:EN:PDF> accessed

23 March 2018.

5 Viviane Reding, ‘A European Law Institute: An Important Milestone for an Ever Closer Union of Law, Rights and Justice’ (2010)

speech European University Institute, 10 April 2010 accessed 23

March 2018.

6 Věra Jourová, ‘Answers to European Parliament Questionnaire’ (2014).

cwt/files/commissioner_ep_hearings/jourova-reply_en.pdf> accessed 23 March 2018.

7 Concerning judicial organisation, see for example the ‘Copenhagen criteria’ for accession to the EU by new Member States (2003)

accessed 23 March 2018.

8 This article uses the following terminology in connection with legal interaction beyond national borders: ‘international’ for the

binding obligations of States under treaties developed in the framework of international organisations; ‘supranational’ for the sui

generis legal order of the European Union; ‘transnational’ for interaction between (actors in) different legal orders on a voluntary

basis, e.g. concerning the exchange of ideas and ‘best practices’.