Born in 1954, Hubert Legal, a graduate of the Ecole Normale Supérieur at Saint-Cloud, and the French National School of Administration (ENA), was legal adviser in the Permanent Representation of the French Republic at the United Nations in New York (1993-1997), and Legal Secretary in the Chambers of Judge Puissochet at the Court of Justice (1997-2001). He has been judge at the Court of First Instance since 19 September, 2001.
Commerce International: What percentage of disputes submitted to an EU judge at the CFI are commercial in nature?
Hubert Legal: “Cases with a commercial object or impact account for the great majority of cases dealt with by the European Court of Justice (ECJ) and the Court of First Instance (CFI). It should not be forgotten that the European Union was originally the European Economic Community (EEC). This also applies to prejudicial questions posed by national judges to the ECJ and to specific direct disputes. Amongst these last, the CFI has the right, in the first instance, to verify all decisions taken by the Commission in the field of competition law (agreements, abuse of dominant positions, mergers and state aid), as well as all decisions taken by the Office of Harmonisation for the Internal Market (OHMI). EU competition disputes account for at least half the workload of the CFI, which is not a specialised jurisdiction and which has no specialised training in the area.”
C.I. : Do the members of the ECJ and the CFI have specific expertise in competition and business law?
H.L.: “The members of the ECJ and the CFI are not specialists, and even if they happen to possess specialist knowledge, they are not appointed on account of it. In effect, no one is obliged to deal with only one particular legal area and it is considered important that EU judges are generalists able to appreciate the broader legal implications of their decisions and not merely the impact they have on a particular area of economic or social life Nevertheless, all judges at both the ECJ and the CFI work with three legal experts, referred to as référendaires, of whom at least one has studied company law, business law and competition law. It should be added that graduates in EU law are necessarily familiar with these subjects.”
C.I. : What is the role played by Community jurisdictions in the process of the harmonisation of European commercial law?
H.L.: “Community jurisdictions are an essential factor in substantive economic law in Europe, particularly in competition law, and this in two ways. On the one hand, they maintain direct contacts with national judges and authorities, which are organised in highly efficient networks with a view to comparing and contrasting the kind of problems encountered. More fundamentally, deliberations make it possible to compare national judicial traditions; individual judges propose the approach with which they are familiar in order to contribute to a collegial elaboration of the Community response which, in normal circumstances, will retain the best – or, in other words, the most acceptable – of what the various systems have to offer.The harmonisation of judicial thinking requires flexibility, informal procedures, and time, rather than institutional initiatives which may well come up against resistance from the proponents of various national traditions. We should not forget that, in spite of the creation of a Europe of judges, Member States still enjoy a procedural autonomy which enables them to run their judicial systems without the European Union interfering with the structure of thoses systems.”
C.I. : How important is the work of the European networks you mention?
H.L.: “The existing Community and European networks are far from having given all they have to give, and I believe in their potential to achieve an authentic harmonisation, a harmonisation born of an awareness of the necessity of implementing it and of a knowledge of the kind of resources partners have to offer. It seems to me that it would be more difficult to impose harmonisation based on judicial methods; indeed, such an approach might even be counter-productive.”
C.I. : So you are not in favour of the idea of a Supreme Court, of a European magistracy?
H.L.: “I don’t think that this will happen in the coming years. Initially, harmonisation should focus on concepts and methods that, given the present framework, can be irresistibly drawn together. Institutional additions would only complicate matters and give rise to unwelcome friction, and could even work against the kind of rapprochement that all those involved want to see and which they have the capacity to achieve by taking on board the experience of partners from judicial systems in the other Member States. That is what is behind Rule 1/2003 and its underpinning of the close cooperation between the national authorities, the Commission and the Court to ensure that competition law is respected. The basic rule is the same, everyone has a certain latitude in terms of implementing it, but, by the same token, everyone is aware of how the others are proceeding, and, in the long-term, convergence is inevitable. The need for harmonisation expressed with such urgency by those who have recourse to law is all the incentive professionals need to work in this direction. Everybody knows each other, information circulates freely, and, in this framework, practices which are considered to be too marginal or too local have no future."
C.I. : And what about the idea of an EU division specialising in commercial matters?
H.L.: “I’m not in favour of a Community jurisdiction specialising in the field of competition in that it would only add an extra judicial layer given that it would not be possible to deprive interested parties of their right to go before a ‘real’ magistrate, a judge with a broad knowledge of general law. The system whereby the Court monitors decisions taken by the Commission, which is a regulatory authority, stands up very well to its equally convincing alternative, the American model. But we have to find a way of confronting the sheer number of disputes without increasing delays too much; or, otherwise expressed, we have to render judgments more rapidly, while at the same time guaranteeing the same high level of service. It can be done.”
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