 If I can call the meeting to order, as you all know, our speaker today is Karen Banks, who is one in a long line of distinguished Irish citizens who have done great work in the European Commission. Karen is presently Deputy Director General of the Legal Service of the European Commission and prior to that was director responsible for running the agri-fish team at the Legal Service but she has a long track record of working in a lot of different areas with competition law, social law, intellectual property law and external relations of EU law. I'm glad to be able to say she's a graduate of the institution in which I teach, the law school in University College Dublin but she also has a master's degree from LSE as well and indeed worked as a solicitor in general practice before joining the Commission. In her address to us today Karen is going to do a number of things to look at how EU law can affect national rules concerning the judiciary and the administration of justice at national level, discuss how EU law relies on national justice systems. She is going to also outline how fundamental rights embedded in cross-border legislation can have profound implications for national justice systems. Now I understand as usual the initial address will be on the record but the Q&A session afterwards is under the Chatham House Rules which obviously means that you can use the information but not attribute it. Could I just remind everyone as well to switch your phones to silent if you haven't done so already. In fact I'm going to do that immediately myself as soon as I stop talking and if you want to tweet use the handle at IIEA as well and we'll keep going I think. We have until two so we'll go until then and we'll draw to a sharp close at that stage so everyone can get back to their places at that stage. So Karen, the floor is yours. Good afternoon and very happy to be here. I am to speak to you this afternoon about the implications of EU law for national justice systems and the point that one has to begin with is the principle that EU law relies on national court structures and procedural rules to ensure its effective application. So you have to see if you like the substance of EU law being filtered down towards the citizen or the companies or whoever is going to be affected by the EU rule through the national procedural rules and there are many judgments of the court of justice in which it has insisted on that idea. Of course that is subject to one or two qualifications related to the effectiveness of EU law so if you have a national procedural rule that would make it too difficult to get access to your EU law right that may have to be modulated a bit and there is of course the requirement of equivalence so you can't have national procedural rules that are harder to get over so to speak in relation to EU law rights than they would be in relation to the equivalent national rights. Similarly it must be possible for interim relief to be granted where that would be necessary in order for your long term legal action to arrive to its purpose. There have been quite a few questions about time limits laid down in national law for the bringing of actions and again in general these are fine as long as they are no less favourable than they would be in a purely national situation and don't render practically impossible or excessively difficult the access to the right based on EU law. The nature of EU law may cause occasional interferences with national rules. You have to think for instance about article 267 so the possibility for national courts to refer questions of the interpretation or validity of EU law to the court of justice and the fact that the court is very keen on the idea that lower courts should feel themselves just as free as superior courts to make such references so whenever it comes across an obstacle in national law that would prevent or make it very difficult for a lower court to make a reference the court is fairly severe on those. Then coming closer to an Irish case there is of course the case law on the obligation for national courts to dis-apply any national rule which would be contrary to a directly applicable EU rule and therefore that implies that any court which is competent to hear a case based on EU law has to have the faculty to dis-apply an incompatible national rule. And some of you may have heard of case C378 of 17 the Minister of Justice and Equality and the Commissioner for the Gardish Johanna against the Workplace Relations Commission this was a reference from the Supreme Court. In the background was an alleged age discrimination to candidates to join the Gardi said that they had been discriminated against because of their age and the case was brought before the Workplace Relations Commission. The point was that in order for them to win they were going to have to get a national rule dis-applied they were going to rely on their EU right not to be discriminated against and the question was whether the Workplace Relations Commission was competent to dis-apply national law. Under purely national law it wouldn't have been it didn't qualify as a court in meaning of the Constitution. And the Supreme Court which made I found a very persuasive reference tried to persuade the Court of Justice that after all the people in question could have brought their action before the High Court if they had anticipated the fact that the national rule might need to be dis-applied but the court said no no no no any court before which such a case can come has to be able itself immediately and without having to stop the case and allow it to go to another court it has to be able to do whatever it needs to do in order to make the EU law right effective and that implies being able to dis-apply a rule of national law. So there you have a direct interference with a rule of national law and a requirement that it yield to the primacy and effectiveness of EU law. The area of judicial and police cooperation touches of course on sensitive areas of national competence and you might expect a good deal of interference with national rules in this area but as the word cooperation implies in reality in general this area is really dealing with the interaction of separate systems and the mechanisms to make that cooperation possible largely leaving intact the structures and rules on either side. Judicial cooperation is essentially based on the principle of mutual recognition. On the civil side I think there is generally little interference with national procedural law. There are exceptions of course for instance where an instrument creates a completely new EU wide procedure like the European enforcement order for uncontested claims that lays down procedural minimum standards in order to explain how the system is intended to work. For instance there are rules about the service on the debtor, the information that has to be provided to him and so on. Other cases arise where the system being introduced will only work if certain minimum rules are introduced. There is for instance regulation 2019 1111 on recognition and enforcement in matrimonial matters. Generally speaking it's based on national procedural rules but there is an article, article 24 relating to child abduction cases which lays down a six week time limit in principle there are a few possibilities of extending it but in principle a six week time limit both for the first instance and the appeal courts to deal with the matter. That was apparently very controversial in the council of ministers because for some member states the very idea of imposing a deadline by when a court has to have done its work was regarded as outrageous. On the criminal side there are a number of instruments on procedural safeguards for suspects and accused persons and on the rights for victims of crime. Those of course must be incorporated in national law so there you have a direct impact. An example would be right to information in relation to your right to a lawyer or about right to legal aid or the right to remain silent. There has been a clarification from the court that these kind of rules apply also in purely internal situations so although the legal basis for the adoption of these rules talks about the need to enable cross border prosecutions for instance to happen that doesn't mean that the rules once adopted are not also applicable in purely internal litigation. The idea being that the way the cross border situation will be facilitated will be by judges on both sides having familiarity and knowing that the rules on the other side are very similar to the rules with which he or she is familiar. There are other instruments based on mutual recognition for instance the European arrest warrant and this is council framework decision 2002 584 and here a certain number of basic rights are laid down but this is essentially a cooperation mechanism between judges on both sides. However it has to be read in the light of fundamental rights considerations which have proved as this instrument has been worked to be very important and to impose quite some burden on judges who have to operate the system. One question which arose in an Irish case a case called Lannigan is how long can someone be held in custody after the European arrest warrant has been applied for but before a decision has been taken. Mr. Lannigan who was wanted in the north on I think terrorism related charges and had been in jail almost one and a half years before the first hearing happened in front of the high court and between various delays partly caused by him because of course he kept raising objections and saying if he was sent to jail in Northern Ireland his life would be in danger and so on. So two and a half years past before the referral to the court of justice and as you can imagine another couple of years past between one thing and another so he was a long time in jail and the maximum is meant to be three months. So he of course cheekily applied for release on the basis that his fundamental rights were being breached article six of the charter on fundamental rights which deals with liberty and security of person and so this tricky question came before the court. The Irish court asked do I have to release him? Have his fundamental rights been reached to an extent that I can no longer hold him but the court said no no no no automatic freeing please. The judge for judge has to weigh on the one hand the justification for the delays all the circumstances that can allow you to think that it was inevitable that these delays would occur against the fundamental right of an individual not to be unjustifiably deprived of his liberty and again poor judge if he or she finally decides to release the accused he has to take the measures necessary to ensure that there will be no upsconding so good luck. The second issue of fundamental rights which has arisen here relates to conditions in the prisons of the requesting state. There have been a number of cases about this so you have here the need to read the EAW in the light of article four of the charter which deals with inhuman and degrading treatment concept with which Irish people are I think familiar we all have that in our minds from our law studies. The court says that such a breach so a breach of this right the right not to be subjected to inhuman or degrading treatment cannot result may not be allowed to result from the execution of European arrest warrant. However so that means that a judge who is asked to execute such a warrant to send someone to a country where he's alleged that the prison conditions are pretty dreadful has a very severe constraint on his or her mind as to whether they can execute this. However the judge also has to take great care in reaching a conclusion which would prevent the execution of the warrant. First of all you need to have objective reliable and specific information which is properly updated allowing you to conclude that there is a general problem relating to the prison conditions in the issuing member state. In that respect the judge has to look at judgments of international courts judgments of the courts of the issuing member state reports of bodies of the UN or of the Council of Europe and so on. So this is the first mental exercise that has to be gone through and even if he or she is then satisfied that there is a structural problem the question then becomes in the second step whether this is really likely to be the fate of the individual if they are sent back will they go to a jail in which the conditions are that bad and in order to find this out the executing judge has to ask questions of the issuing judicial authority. The court has put one little element of mercy for the judge into its most recent judgment it's not necessary to look at the conditions in all prisons to which this person might ever be sent because that was what a German court had asked. They put forward multifarious questions in great detail asking about the exact square meterage of the cell and did you have to take account of the furniture and all the rest of it and amongst other things and it's a reasonable question on an intellectual level. Do I look just at the jail where they tell me he's going to be sent or do I also think about all the places where he might be sent in the course of his jail career. So the court said no you don't have to do that you just have to look at the prisons where it would be intended to send this person but there is as I say a great deal of detail that has to be looked into and bearing in mind that the court has said that there can be no balancing of a breach of Article 4 with the requirements for the efficient working of the European arrest warrant mechanism or with considerations of judicial cooperation. This again is a pretty heavy exercise that the unfortunate executing judge has to go through. A third issue is that of a fair trial and the independence of the judge who is likely to hear the case of the person if they're sent back to the requesting member state. Here I think we can say that the leading case is again a case that came from Ireland, the case of LM where the High Court here was being asked to send someone back to Poland and at the time the commission had produced a recent opinion based on Article 71 of the treaty which is a rule of law mechanism in which we had elaborated all the unpleasant things that were going on in relation to putting pressure on judges in Poland and of course it was not difficult for the High Court to see at least at the general structural level that there was clearly a risk to judicial independence and the argument was ably made in front of the court that if Mr. Chelmer because the court has now decided to anonymize but we know his name was Mr. Chelmer. If he was sent back to Poland he would risk being tried by a non-independent court. So the court of justice was then asked well what do I do? Is it enough that I know on a structural level that there is a problem or do I have to go further in examining the situation? And as with the problem of the jail conditions the answer came back yes you have to go beyond that you have to look into the personal situation of the individual the likelihood that given his personal circumstances the nature of the offence with which he is going to be accused that at an individual level there is a serious risk that he would not have a fair trial that he would not have an independent judge. A point in that case was it can be very tricky thinking about these questions of judicial independence. On the one level there's no doubt that the judges in Poland are under tension that they are at a level of feeling themselves to be somehow menaced. On the other hand it doesn't follow that every judge acts in a non-independent way and in particular when the offence as in this case is a completely non-political offence he was being accused of drug trafficking there actually is in common sense terms no reason to think he won't get a fair trial but how to reconcile that with the fact that we know that on a structural level there is an issue with judicial independence. So the court tried to deal with it in this way of saying again a two-stage analysis first the general structural issues but then please don't stop there go on and really try to satisfy yourself as to whether in the concrete circumstances of the case this person can get a fair trial. Again it's quite a burden for the executing judge. And then the final issue that I think has come up under the question of executing EAWs is the need for an independent judicial authority to have issued the warrant in the first place. There is a case from Sweden called Polterac where the EAW had been issued by the police because that was the way it worked in Sweden and the court said no that won't do it has to be an authority independent of the executive it has to be a judicial authority. The court has shown some flexibility it allows public prosecutors to issue European arrest warrants as long as they are wholly independent. So again there were a couple of references from Irish courts concerning the German and the Lithuanian public prosecutors and this caused a good deal of excitement in the place where I work in the legal service because the German lawyers were they realized they were going to have to plead it but it sort of went against the grain with them because they know how great prestige attaches to public prosecutors in Germany how much part of the system of administration of justice they are how exceedingly unlikely it is that they would get instructions from the minister how they would resist such instructions if they got them how they would insist on having them in writing they know all these things but at the same time the theoretical possibility exists that in Germany a public prosecutor can receive an instruction from the minister and the court said right so that won't do whereas the Lithuanian public prosecutor is it's even written in the Lithuanian Constitution that he has to be wholly independent and can receive no instructions so that one was allowed to pass muster and then very recently just a few days ago we had a judgment about the Austrian system which involves the public prosecutor issuing the warrant but it's then reviewed by a court and the court of justice has said well all right as long as it's a proper review and not just a rubber stamping exercise then that will be all right. So the question of judicial independence as you can see is very much at the heart of what we're thinking about in the legal service of the Commission at the moment and it's also at the core of the litigation we've been conducting against Poland. We have had two cases so far we have a judgment in one case and a judgment pending in a second and a third case is just about to be launched and what are these all about. In the case of the ordinary courts we brought two arguments one was to do with sex discrimination because when the retirement age of judges was changed and reduced for the ordinary courts not content with applying the new age to judges who were sitting the Polish authorities also decided to reintroduce the difference in age which they had previously abolished. So we had an argument there about sex discrimination but if you like the more fundamental the more rule of law problem it was the fact that they had abruptly reduced the retirement age including for judges who were sitting including for judges who were already at that new retirement age and who had to go immediately and on top of that in order to stay on you had to apply to the Minister for Justice for permission the minister had no clear criteria to apply in order to know whether he would or he wouldn't give you your extension of time there was no deadline for him to answer and during that time you continued sitting as a judge so the chances that you would be able to free your mind of the fact that you were depending on the minister for something while you were judging cases that might be sensitive was not very great. So that case has actually we're still waiting for judgment judgment is due on the 5th of November we've had the opinion of the Advocate General but not yet the judgment in the meantime we started a case about the Supreme Court and that case passed the other one out because it was very urgent and in fact there we already have judgment in the case of the Supreme Court the sex discrimination issue didn't arise but we had again the abrupt reduction of retirement age and this time it was going to mean that one third of the members of the Supreme Court including the president were going to have to retire with immediate effect and so we decided to pull out the stops and go for interim measures and expedited proceedings and the court granted us the interim measures and to be fair to the polls they implemented them and they we had asked for them for the measures to be suspended pending the outcome of the long term court case but in fact the polls obviously decided that the game was up and they completely changed the rules so that the reduction in retirement age would no longer apply to anyone who was already in a judicial position before they're coming into effect of the law and they have abolished the mechanism because they're also for the Supreme Court there was this mechanism for extension this time you had to apply to the president and same thing no criteria no deadline etc etc and that mechanism has been abolished however we decided in any case even though in practical terms you could have thought the problem was then solved but since this was a very important case of principle and we wanted clarification from the court that what we were saying was right that is to say that these kind of phenomena could be a breach of the treaty and why is that well the construction is that it's quite adventurous but the court has agreed with it that article 19 of the treaty on European Union gives to the member states the job of ensuring that there are effective review mechanisms for the enforcement of EU law and in combination with that you have article 47 of the Charter on fundamental rights which talks about the right to an independent court and so we putting these together we said right that must mean that judges who have the job of deciding on EU law matters must be independent and that approach has been has been confirmed by the court so we now have judgement in the first case and we're waiting for judgement in the case about the ordinary courts and just about to launch is a case about the disciplinary regime which is applied to judges in Poland because they can be disciplined for the content of their judgments and we think that's not too good and there are a few other things like the disciplinary chamber and the manner in which they are treated if a disciplinary case is proceeding against them they're given no time to consult with their lawyers and various aspects like that so I think we can say that although EU law does not in any way want to replace all national procedural rules or determine what court should be competent for what kind of matter it is still the case that the nature of EU law and certain specific rules like the question of judicial independence have nevertheless considerable implications for national justice systems thank you for your