National Judges as European Union Judges - HiiL

National Judges
as European
Union Judges
Knowledge, Experiences and
Attitudes of Lower Court Judges
in Germany and the Netherlands

HiiL Focus: Judiciary in the
internationalised world
National courts are increasingly influenced by developments beyond their country’s
borders as they seek to uphold the laws of their land. As a result of the increasing
internationalisation of law, the role of the national judiciary has been evolving to
include these developments. This phenomenon features prominently on the
European level where EU law has high expectations of how national judges should
perform their task as ‘decentralised EU judges’.
These issues are at the heart of the HiiL research agenda which focuses on the
challenges posed to the maintenance and promotion of rule of law in a world of
intertwined legal systems. In particular, this research fits within the remit of the
HiiL Highest Courts research theme as it provides highest courts at the European
and national level with the information on what lower national courts need in order
to function in a multi-level legal order.
HiiL Project research team
Mark Wissink – University of Groningen
Tobias Nowak – University of Groningen
Fabian Amtenbrink – Erasmus University Rotterdam
Marc Hertogh – University of Groningen

‘The experiences that Dutch and German civil law judges have with
the application of European Union law are very similar: for most judges
European Union law plays only a minor role in their daily work. The
feeling that their knowledge of European Union law is insufficient is a
consequence of this sporadic application; the sporadic application is not
necessarily a consequence of insufficient knowledge. For most judges
European Union law is just another set of rules they have to apply.’
Tobias Nowak | University of Groningen
This research project is funded by HiiL and conducted by the law faculties of the
University of Groningen and the Erasmus University of Rotterdam, with the
cooperation of the Raad voor de Rechtspraak and Ministry of Justice of North
Rhine-Westphalia.

Knowledge, Experiences and Attitudes
The research project reveals the practical problems that national judges
experience when applying European Union law. It focuses on national judges at
the first and appellate levels (excluding supreme courts) in the German state of
North Rhine-Westphalia and in the Netherlands. It identifies to what extent the
application of European Union (EU) law depends on:
problems concerning knowledge of (researching) EU law,
(negative or positive) experiences with applying EU law within national
legal systems, and/or
underlying attitudes of national judges towards their role as decentralised
Union judges.
Multidisciplinary research
In order to study the experiences with, knowledge of, and views on EU law of
private law judges, this project applied research methods from the social sciences,
such as surveys and complementary in-depth interviews.
‘I think ninety percent is practice but also some courses which I
had in the course of time. But I have to tell you honestly, only
one or two things of such a course stick. The rest is lost. Only if
it is coincidentally about a subject you are busy with and you
are really interested in listening. But if it is about – let’s say
harmonious interpretation – and you never encounter this, then
it goes in one ear and out the other.’
Dutch Judge

Societal and scientific relevance
The research:
Provides the information on what lower national courts need in order to
function in a multi-level legal order;
Helps judicial bodies and legal scholars to formulate tools to help the
national judiciary to apply supranational (Union) law within a national legal
order;
Provides solid data to test arguments put forward in the legal debate on the
desirability and feasibility of internationalisation of law;
Makes an important contribution to the field of legal consciousness studies
in social science by focusing, unlike previous studies, on the legal
consciousness of national judges, and applying the idea of legal
consciousness also to the context of supranational (Union) law;
Enables the improvement of judicial training programs. Members of the
research group have already presented their findings to the Dutch Training
Centre for the Judiciary and the Landelijk Overleg Civiel en Kanton.
‘I started when European law was still something for specialists.
I don’t even know if it was an examined subject. […] All the
knowledge I have, I have acquired subsequently. And with
practitioners this usually means: not as a closed representation of
a closed legal system but depending on an individual case.’
German Judge
‘We know that European law actually becomes more important all the
time; that the Court of Justice delivers increasingly interesting
judgements. At the same time there is a tendency in the Netherlands
to resist Europe. We used to be forerunners; now we are lagging
behind. I think it would be foolish to let this happen in the field of law
- such a step back. We have to be part of it, stay with it; make sure
that we walk in front because Europe will be the future’
Dutch Judge

Main findings
Most judges in the Netherlands and Germany support European integration
and the EU. Judges trust the European Court of Justice. Most judges accept
a hierarchy of norms in which EU law stands above national law.
Most judges have to deal with EU law only sporadically. The perception
judges have of EU law is mostly shaped by the problems they encounter in
their work. Most judges report that EU law has a limited impact on the type
of cases they decide in their daily work.
Most judges consider their knowledge of EU law to be much lower than their
knowledge of national law. Judges want more information on EU law.
Judges have stated practical reasons for not applying EU law, such as high
case loads, limited time for researching the law and insufficient knowledge.
Most judges do not consider the much discussed democratic deficit as an
obstacle for the application of EU law.
It is unclear to judges what EU law’s expectations of them as decentralised
EU judges specifically entail.
Recommendations
Develop procedures and know-how within the courts (e.g. by temporarily
setting up special teams of judges charged with deciding certain types of
EU law sensitive cases).
Organise training courses for judges in EU law, aimed at specific problems.
In legal literature, address specific problems of EU law as part of a general
discussion of the relevant (national) law.
Have more guidance by the European Court of Justice and highest courts in
explaining what the role of a decentralised EU judge specifically entails.

Shaping the Law of the Future
The Hague Institute for the Internationalisation of Law (HiiL) is an international
think tank on rule of law in a globalising world. We focus on the interaction between
legal systems. We create actionable knowledge through debates, workshops,
conferences, knowledge partnerships, action programmes and expert networks.
HiiL is venturing on a unique and ambitious mission to think ahead of the curve about
the changing nature of law in the next 20 years. [ www.lawofthefuture.org ]
Stimulating justice innovations
HiiL is one of the founding partners of Innovating Justice, a new platform to improve
the rule of law and access to justice. [ www.innovatingjustice.com ]
Strengthening research
HiiL’s research pursues innovation in five themes, which together provide a coherent
perspective on the challenges globalisation poses to legal systems.
HiiL Research Themes
Rule of Law
Private Actors
Highest Courts
Transnational Constitutionality
Criminal Process and International Crime

Publication
National Judges as European Union Judges
Knowledge, Experiences and Attitudes of Lower Court
Judges in Germany and the Netherlands
Tobias Nowak, Fabian Amtenbrink, Marc Hertogh
and Mark Wissink
Eleven International Publishing | www.elevenpub.com
ISBN: 978-94-90947-33-0
Hague Institute for the Internationalisation of Law (HiiL)
Anna van Saksenlaan 51
P.O. Box 93033
2509 AA The Hague
The Netherlands
Tel: +31 70 349 4405
Fax: +31 70 349 4400
E-mail: info@hiil.org
www.hiil.org