- Good evening and welcome to everyone.
Welcome to our twelfth annual
Emile Noel State of the Union,
State of the European Union lecture.
And, some of you will know
this is an annual lecture
held under the auspices
of the Jean Monnet Center,
where we invite a distinguished figure
from the European Union,
sometimes a political figure,
sometimes a judicial figure,
to speak to us on the state
of the European Union.
And some years ago,
this would have been a
very, maybe, legal matter,
or something on refined issues,
or the latest internal
market developments.
But in recent years, the
state of the European Union
has become a much bigger
political question
and no longer do we say
to people, you know,
"You won't know about the EU,"
or, "The media doesn't report on the EU."
Now, we have judgments of
the European Court of Justice
on the front page of the New York Times
as well as the Daily Mail
who spoke earlier today
with our guest speaker
about the colorful reporting
by the British media
of the judgments of the
European Court of Justice.
But it seems particular fitting, I think,
this year that we have not just a judge
from the European Court of Justice,
but also the British judge
from the European Court of Justice,
because amongst the many
crises facing the EU today,
probably one of the saddest
for those of us who
have been involved with
and working on the EU for many years,
for many decades,
is the fact that the UK has given notice
of its intention to leave the EU.
So, that raises many interesting questions
and difficult questions
for the EU, for the UK,
for the Court, for the Commission,
for all of those, for us as academics.
So, we're really delighted
to have Advocate General
Sharpston here with us tonight.
So, in addition to it
being a very timely moment
to have the British Advocate
General from the Court,
she's also a wonderful speaker to have
for many other reasons.
She's had a triply distinguished career
as an academic, as a barrister in the UK,
a practitioner of law
and, since 2006, as an Advocate General,
a judicial member of the
European Court of Justice.
She did her undergraduate and law studies
at the University of Cambridge.
She subsequently taught for some years
at the University College
London in European Union law
and became later a fellow of
Kings College in Cambridge
of which she's still a fellow
and she also practiced
at the Bar in London
and became a co-head of
her chambers at the time.
Before, she went to, or
at least, not before,
In between, she spent
some years in the cabinet
of an earlier and very
distinguished and influential
British Advocate General of the Court,
Advocate General Gordon Slynn.
And, again, it's worth to noting
that Britain has had
three Advocates General
of really great distinction on the Court.
Advocate General Gordon Slynn,
Sir Francis Jacobs, and
now, Eleanor Sharpston.
And, you know, part of
the sorrow many of us feel
at the idea of the UK leaving the EU,
including losing its judicial members
and its Advocates General of the Court
is the profound influence they've had
on the working of the court.
On its practice as well
as its jurisprudence.
And I think that's something
that's very evident still
in the opinions of
Advocate General Sharpston.
I think probably everyone here
tonight, maybe not everyone,
but most of you will know
what the role of an Advocate General is.
Is that it's a little
different from the role
of a judge on the Court,
and that the Advocate General
is an advisor to the court.
Trying to suggest the
best path to the court
of the different options
that may be available.
And we spoke about this earlier today,
but I think sometimes the Advocate General
can play the role of the
conscience of the Court.
And I think Advocate General Sharpston
has done that in a number of key opinions,
which any student of
EU law will know well.
The Ruiz Zambrano judgment
on citizenship being one.
Very recently, the Bougnaoui judgment
on the headscarf in France is another one.
And she gave a very important
judgment recently, also,
on the trading powers of the EU
and the extent of which they're shared
with the Member States
in the case of the Singapore
Free Trade Agreement.
Those are just three.
There are many others
that could be mentioned.
So it's a great pleasure to welcome here,
to introduce her to you,
and to hear her thoughts
on the State of the
European Union, thank you.
(applause)
Professor de Burca, thank you very much
for that very warm and
very generous introduction.
Ladies and gentlemen, shortly
after the end of World War II,
the British wartime
leader, Winston Churchill
went to Zurich.
And there on the 19th September, 1946,
he made a speech at the university.
Here are some extracts of what he said.
I can't do a proper Churchill imitation,
so you'll just have to take the text
and put his voice over the top.
"The first step in the re-creation
"of the European family
must be a partnership
"between France and Germany.
"In this way only can France
"recover the moral and
cultural leadership of Europe.
"There can be no revival of Europe
"without a spiritually great France
"and a spiritually great Germany.
"The structure of the
United States of Europe
"will be such as to make
the material strength
"of a single State less important.
"Small nations will count
as much as large ones
"and gain their honor
"by a contribution to the common cause."
Skip a bit.
"Our constant aim must
be to build and fortify
"the United Nations Organization
"and under and within that world concept
"we must recreate the European family
"in a regional structure called,
"it may be, the United States of Europe
"and the first practical
step go on towards the idea
"of Union."
It finishes,
"In this urgent work
"France and Germany must
take the lead together.
"Great Britain, the British
Commonwealth of Nations,
"mighty America and, I
trust, Soviet Russia,
"for then indeed all would be well
"must be the friends and
sponsors of the new Europe
"and must champion its right to live.
"Therefore I say to you
'Let Europe arise!'"
It is eerie.
No, it is surreal,
re-reading that speech
in the wake of a certain vote
in the United Kingdom on
June 23rd of last year
and the formal triggering
of Article 50, TEU
by the current British
Prime Minister, Theresa May
on March 29th,
so less than a week ago,
and some nine months after
the Brexit referendum.
This is an unusual, perhaps an
uncomfortably unique, moment
for the British Advocate General
at the Court of Justice
of the European Union
to deliver the Emile Noel Lecture.
Well, I've said that just now,
I am the British Advocate General.
Indeed, you can tell that
from my rather quaint accent.
But although I was nominated
to do the job that I do
by the United Kingdom.
I was appointed by European
Union statesmen together.
I do not act for the British government.
Nor do I represent the United Kingdom
at or before the Court in which I serve.
I am an independent full
member of the Court.
I serve the rule of law
in the European Union.
Nothing more, nothing less.
And as Professor de Burca
was just explaining,
my job at the Court as an
Advocate General, not a judge,
requires me to write opinions,
so to be opinionated.
And that's what I'm going
to be this afternoon.
I should add that my work
also necessarily means
that I am in daily contact with colleagues
from other Member States.
Obviously, they are in
touch with sentiment
and currents of opinion
back home in their respective countries.
So, that gives me privileged access
to what other Europeans are
thinking and talking about
in these uncertain times.
In the first part of my lecture,
I want to look at the state
of the European Union.
And along the way I may mention,
I'll try to be brief about
it but I may mention,
some current and recent cases
that inform part of my professional job.
Because working at a court
you see a cross-section
of the conflicts that are
preoccupying the society
for what you are working.
And also, this by way of information,
unlike the US Supreme Court,
the court in which I serve
doesn't have docket control.
We don't control the cases coming in
and select which one we want to take.
So, if a case is brought before us
then, unless it is
technically inadmissible,
we have to decide it.
And it follows from
that that our case load
reflects the hot issues of the day.
Now, of course I cannot speak
about the state of the
European Union in 2017
without making reference
to the Brexit process.
I shall try as I do this,
both to put Brexit a little
bit in its historical context
and to state what I perceive
to be its relative importance
in the wider scaled events.
In doing that, I shall be speaking both
of how Brexit is viewed
from the UK perspective,
and how it is perceived by what have now
variously been called
the EU 27, or the rEU,
which is a very horrible
acronym for remain EU.
And in that sense, what
you are going to hear
is a little bit like a
ventriloquist's dialogue
with the dummy he performs with.
You know, one voice and
then the other voice.
I'll leave you to work out
which voice is closer to my own.
In the second part of my lecture,
I shall move on to offer
some comments on trade deals.
That inevitably, of course, connects
to what the EU and the UK will be spending
rather a lot of time on
during the coming years.
But, again as Professor de Burca mentioned
in the introduction,
it is in part prompted
by the work that I've been doing
on the EU-Singapore Free Trade Agreement
over the last nine months.
I shall conclude by looking into
my best quality crystal ball.
Which, of course, I've brought with me
on the flight from Luxembourg.
Best quality crystal ball
in order to see where we might be headed
over the next five to ten years.
By that we,
I mean we the European Union,
not we the United Kingdom.
It may be that Mrs May,
British Prime Minister,
will lead the United Kingdom
triumphantly to the
promised sunlit uplands
of a leading world role
for a new global Britain
unhampered by tedious EU predilection .
It may be that great experiment will end
in economic and or social tears.
Or, as is so often the case in your life,
the final outcome may perhaps
be somewhere between the two.
However, my oath of office
means that I serve the European Union.
I have been involved professionally
with the European Project
all of my working life.
My concern is therefore primarily
for what the future may hold
for that noble experiment
in shared values sovereignty,
standards and laws
among nations with differing
histories, styles, and languages.
So, let's turn to the state
of the European Union.
We are now some 65 years on
from the moment that the European
Coal and Steel Community,
the ECSC, came into being.
Five years before the EEC.
The founding fathers of the
ECSC obsessed about peace.
They had very good reason to do so.
With the generous assistance of the USA
through the Marshall Plan,
they were painfully rebuilding Europe
from the rubble and devastation
left by the Second World War.
The preamble of the ECSC
goes on and on about peace
about, and I quote,
"Peoples long divided
by bloody conflicts."
And I quote again,
"About giving direction to
a future common destiny."
I would say the EU Project,
as it is called in shorthand,
was delivered on that challenge.
When the Iron Curtain came down,
the former Communist states
of Central and Eastern Europe
rushed to try to join the European Union,
because they saw it as a beacon
of democracy, stability, and prosperity.
And over those 65 years
since the preamble to the
ECSC Treaty was penned,
there have been occasional reminders,
for those who choose to see them,
that peace and stability are
not achieved without a head.
They cannot simply be taken for granted.
The break up of the former Yugoslavia
led to bloody conflicts
uncomfortably close
to the EU's own borders.
The present unrest in Ukraine,
coming after the Russian
incursion into Crimea,
should also jolt us out of
our comfortable complacency.
And, dare I say,
President Trump's slightly
ambivalent position on NATO
has been a sharp reminder
that we Europeans will continue to wake up
and look after ourselves of late.
So, what of the state of
the European Union now?
What's to the fore
in the collective consciousness
of committed and thoughtful
European citizens?
And what should therefore be on the minds
of those who are charged
with moving the European Union forward?
Well, I think it would be fair to say
that there is a real awareness
that we live in difficult times.
The liberal tolerant
values, democratic values,
that most of us took for
granted are under threat.
We are seeing vicious assaults
on our Western way of life
by terrorists bodies
such as Islamic State.
And there is a different
kind of an assault.
An assault by the populist
press and politicians
with their post-truth narratives,
their alternative facts,
fake news, and politics by print.
The phenomenon is to be found,
not only in the United Kingdom,
but also in other Member States.
The recent election in the Netherlands
pushed back against this trend
past relief of many of us.
Geert Wilders' anti-immigration policy
did not emerge from the majority.
We now hold our breath
to see what happens in
France and in Germany.
In France with the National
Front, Front national.
In Germany with Alternative
fur Deutschland.
Forgive me as a guest for mentioning,
but it seems that perhaps there
may be a similar phenomenon
to some extent can be found in the US?
So, there's that to be worried about.
Then there were those that feel
that in a world of
relentless globalization,
they have just been left behind.
There seems to be less
need and less reward
for the labor that they're able to offer
than in the good old days.
The prosperity that
globalization was meant to bring
has not trickled down
to Members' individuals.
The massive profits have gone
to large multinational
corporations and to banks
and these disgruntled voters cannot afford
the wonderful consumer goods
from all over the world
that fill our shops and our TV screens.
In the meantime all these foreigners
come into the neighborhood.
Some are fellow Europeans with
recognizable shared values,
but others are more alien,
with different cultures,
different traditions, different religions.
Worse, our screens have been filled,
our newspapers have been filled,
with the refugee crisis.
The appalling life, appalling
of loss of lives at sea
from leaking inflatable boats
filled with desperate people
trying to cross the Mediterranean.
The endless files of displaced
persons fleeing Syria,
trudging over the land bridge
into Europe from Turkey,
and up the Western Balkans route
into Croatia, Slovenia,
Austria, and Germany.
Surely, someone can act to resolve this
in a humane and respectful way,
preferably some other
country can take them, yes?
Why isn't the EU stepping
in the necessary measures?
And, of course, the EU has always been
a convenient scapegoat
for the populist press,
and indeed for national politicians
wishing to distract attention
from their own wrong headed
policies and actions.
Actually, for decades,
politicians have tended
to claim anything good
that comes about as the consequence
of their own brilliant political judgment
and economic management,
and to blame any bad news on Brussels.
Nevertheless, nevertheless,
many people within the European Union
are still looking to the
EU to be a positive force
in helping them to keep safe,
to regain prosperity even,
whilst enabling them to continue to enjoy
the open border, free travel environment
to which they have, very
happily, become accustomed.
Along the way, they would
like the European Union
to promote policies that
enrich further education
for their children,
help these to find good jobs
at the end of the education process,
ensure decent and safe working conditions,
look after the environment,
and so on and so on.
The EU and its predecessors
have, after all,
successfully delivered in some measure
on all these aspirations in the past.
Along with peace and relatively
high levels of prosperity.
Thus, within the EU 27,
there is a different impatience
with the European Union
from the Euroscepticism
prevalent in certain parts
of the United Kingdom.
Here, the complaint is not
that the EU is doing too much,
but that it is doing too little.
There are many who are in
favor of the European Project,
but who are frustrated
because, as they see it,
the EU has not done enough on major issues
like security, safety,
sharing the burden of the refugee crisis,
and promoting growth and social cohesion.
There's a new buzzword
starting to do the rounds in Brussels.
The term deficit in
delivery, delivery deficit,
has been coined to describe
this growing anomaly.
And I'm just going to
refer, very, very briefly,
cases that I've been doing
at the Court tend to reflect
these phenomenons, above all
the refugee crisis, of course.
A lot of those cases coming through
and posing frankly intractable problems.
Problems that arise out
of the geography of Europe
and out of the fact that when
the legislation was framed,
the Dublin III Regulation was framed,
nobody foresaw that there would be a flood
of these dimensions,
of people seeking
international protection.
And, you know, whatever
you do with the case,
it's going to be very sensitive,
it's going to be very political.
The problem is essentially intractable.
Whatever the Advocate General says,
whatever the Court says in due course,
the basic problem is there
and has to be sorted.
Second area, security.
Listing cases involving the asset-freezing
of persons and organizations
suspected of supporting terrorism.
That's brought itself its fair
share of awkward problems,
awkward challenges in terms
of what justifies listing,
what justifies renewed listing,
and then a knock-on from that,
measures to prevent the
financial system being used
to support terrorism
or to channel proceeds of money laundering
and it feeds all the
predictable legal problems
that run with the security problem.
And then again mention was made earlier,
this boundary between the
other and ourselves in society
and, indeed, possible tensions
within the multicultural,
multi-faith society today's EU.
You get the hijab cases and there again,
what the two Advocates General did,
my colleague General
Advocate Kokott and myself,
and then what the Grand Chamber has done
in the judgments that it delivered.
In a sense, whatever
the Court does on those
is going to be subject to scrutiny.
But the problem is a problem
that the EU as such has to grapple with.
How to have its diversity in unity,
is one of the slogans of the Union.
So, if one was summarizing
on the state of the European Union.
The EU is living through
a period of serious
geopolitical challenge.
And those charged with its governance
are fully aware that,
as well as keeping the economic
market running smoothly,
they need to find new ways
to regulate the flow
of migrants to Europe,
to tighten up security on
the EU's external borders,
to fight youth unemployment,
and, more generally, to
renew trust and confidence
in the European Project.
To make sure that the citizens understand
that many of the good
things that they do enjoy
whether it's going off to
another EU Member State
for a party, or not being ripped off
by the mobile phone companies
when you telephone from
abroad, just two examples.
Many of those good things
have something to do
with the European Union.
There is a massive failure to communicate
and that is something that
people are starting to realize
that they have to address.
There's a eurozone crisis.
Well, it's abated,
but it has not necessarily
gone away for good
and many accept that some
reforms are needed within the EU
to structures, to priorities
so as to keep the right balance
between the European Union center
and its component sovereign Member States.
Of course, there's nothing new about that,
it's a perennial issue since
the foundation of the
European Economic Community.
So, challenges are there.
The European Union is fully aware
that it needs to face up to them.
And then there's Brexit.
Where to begin on Brexit?
Well, let's begin in the United Kingdom.
I think in the United Kingdom,
the wider dimensions
of the European Project
have never really gained traction.
Historically, the United Kingdom,
I thinking back in the
days of the British Empire,
the United Kingdom was
a world trading power
and it traded goods.
Its core focus was therefore traditionally
been on the free movement of goods.
And the UK used to belong
to a trading bloc in Europe,
it was the European Free Trade Area, EFTA.
At a certain moment, the
UK decided that the EEC,
the Common Market as it was
called in British speak,
Common Market was a bigger
and better trading bloc.
So, the UK left EFTA and joined the EEC.
And I think the UK has never
been really very comfortable
with the fact, because fact it is,
that the other Member
States had a different idea
about what they were doing
and wanted a deeper level of integration.
Although the preamble
of the Treaty of Rome
speaks expressly, clearly,
in black and white of,
I quote, "An ever closer Union
among the peoples of Europe."
Close quote.
The United Kingdom's never
really liked that text very much.
And indeed it tried to have it deleted
as part of the negotiations
surrounding the Treaty of Lisbon.
So at the risk of oversimplification,
one might say that the
UK has spent the 43 years
of its EEC, EC, EU membership,
the acronym changes, the story doesn't,
of its membership being towed
along, rather unwillingly.
Notwithstanding the many special deals
that it's managed to
negotiate with its partners
who've wanted to keep the UK
contented and within the EU.
I think the UK has never
felt very comfortable
about its membership.
Even with the bespoke status
of not being part of Schengen,
not being part of the euro,
having the Protocol 36 opt out
from bringing the whole
justice and home affairs pillar
into mainstream EU law.
Then there's the protocol
about the Charter, Protocol
21, from memory, and so on.
But despite the bespoke deal,
I think that the United Kingdom
has never felt comfortable with
the bigger European Project.
And honesty also compels me to say
for the historical record here,
that when communism collapsed,
when the former Comecon states applied
to join the EU and were told
to form an orderly queue
at the door and we'll
see how you're getting on
and let you in in twos and threes maybe,
the United Kingdom was
in the forefront of those
urging the EU to take them
all in as quickly as possible,
and that duly happened.
Ten Member States, eight
from the Eastern Bloc
plus Cyprus, plus Malta
joining on the 1st May, 2004.
Then Bulgaria and Romania
1st January, 2007.
And then, of course,
Croatia 1st July, 2013.
Now, there were very good,
very sensible geopolitical
reasons behind that strategy.
But it did also reflect the UK's desire
to widen the EU rather than deepen it.
And now, for the Brexit referendum.
Lots of other people have
put the equation together
in the words that follow.
So, this is not me making
a political statement.
This is summarizing the received
wisdom of what's happened.
There was political expediency
in calling a referendum
for the ruling Conservative Party
that was worried about
losing votes to UKIP.
So, a pre-general election
commitment was given
to holding a referendum.
The anticipated result
of the general election
was that there would be another coalition.
Had there been another coalition
it was equally anticipated
that the partners in the coalition
would be the Liberal Democrats,
and that if so they would
block a referendum being held.
The result of the general
election was, however,
a Conservative majority government.
So, a referendum had to be called.
A referendum might have been designed
with certain safety nets in it.
Like thresholds for participation
and for voting to leave.
Like saying that all the constituent parts
of the United Kingdom had
to be in favor of leaving.
There's also issues about
who should have been voting.
All of that might have been possible,
but it was designed in a particular way
as an advisory referendum.
Then the campaigns happened
and the two campaigns
were conducted as they were conducted.
And I shall not comment on it.
And then we had the result of the vote.
I have heard this likened
to the film about the perfect storm.
If you get just the wrong
combination of conditions,
you end up with the perfect storm.
It's probably worth saying,
as part of the background,
that whereas other Member
States have political parties
that are unashamedly pro-EU
as part as their campaigning platform,
political parties in the
English part of the UK,
I do say the English part of the UK,
range from essentially
Eurosceptic, Conservatives,
to confused but mistrustful of the EU
because it's part of the capitalist world.
I think that possibly
describes Labour at the moment.
To lukewarm support which
is the Liberal Democrats.
Now, north of the border in Scotland,
there is strong political
support for the EU.
That may help to explain,
why Scotland voted overwhelmingly
to remain in the EU.
Not a single voting constituency
in Scotland voted to leave.
In Northern Ireland,
that remaining part of the United Kingdom,
the peace process and
the Good Friday Agreement
were based on United Kingdom and Ireland
both being EU Member States.
The present border between
the south and the north
is all but invisible,
which in a very British pragmatic way
suits both sides of the
debate about a united Ireland.
And even though one political
party, the Unionists,
supported leave, Northern
Ireland, like Scotland,
Northern Ireland voted by a
majority, to remain in the EU.
Curiously, Wales, which has
received a massive amount
of EU financial support, voted leave,
but there were signs,
in the shape of a nice,
fat discussion paper,
that the Welsh government has now realized
that that may conceivably not have been
in Wales' best interests.
However, numerically, most
of the UK's population
lives in England,
and although the
cosmopolitan capital, London
and university cities
like Oxford and Cambridge
naturally voted heavily
in favor of remain,
England as such voted to leave.
I'm sure that at some
stage not one, but several,
very learned theses will
no doubt be written.
Seeking to analyze what was
the precise balance of factors
behind the result of
the Brexit referendum?
Was it the influence of
the Eurosceptic press?
Was it a knee-jerk
anti-establishment reaction?
Perhaps just deep-rooted
mistrust for things European.
Misinformation, ignorance,
nostalgia for the good old days of Empire,
profound reasoned conviction
that the UK would do
better outside the EU.
Who knows?
What matters is that UK voters,
by a majority of 52 to 48
percent of those voting,
in this nominally advisory referendum,
voted to leave the EU
and that that has been taken
as an unshakeable mandate to leave.
The people have spoken,
Brexit means Brexit.
Say again the mantra, Brexit means Brexit.
The UK side of the story
since the referendum vote.
Well, within the United Kingdom,
Brexit is, as far as I
can tell, center stage.
Almost to the exclusion of the
other business of government.
The focus is on delivering Brexit.
An entire new government
department has been created
under the singularly
horrible name of DExEU,
Department for Exiting the EU,
which is to coordinate the endeavor.
Priority objectives need to be identified.
Negotiating strategies crafted.
And people have realized that the task
of disentangling the EU
law from domestic law
is one of labyrinthine complexity.
And there are real issues too
about Scotland and or Northern Ireland.
In the interests of time, I'm
not going to pick them up now,
but if anyone wants to ask
me questions about them,
as a Celt, I will be delighted
to hold forth on that subject.
As a part-Irish woman married to a Scot,
I feel that I have some
degree of entitlement
to speak on those two issues.
There are real issues there.
And depending on how Brexit is conducted
and what the UK ends up with as a deal,
there may therefore be a
real threat to another union.
To the union of England, Wales, Scotland,
and Northern Ireland
within the United Kingdom.
Now, let's go over to the EU
side of the story about Brexit.
About Brexit and what's
the reaction to the vote.
This is the ventriloquist
and ventriloquist dummy.
I think initially the
reaction could be summarized
as a shock, surprise.
Maybe not so much surprise
but maybe surprise.
Regret coupled with the feeling
that if the UK does want to leave,
then we should all get on with
making that happen quickly.
Please therefore trigger Article 50, TEU.
And then the months passed and
Article 50 was not triggered.
And then this feeling of impatience.
"Why aren't the Brits
getting on with it then?"
Gradually gave way to a sort of
incredulous dawning realization
that actually there wasn't plan B.
That the United Kingdom had apparently
decided to call the referendum,
and as a result of the referendum
decided to leave the EU
without actually having an idea
of what it wanted to put in its place.
It was vote to leave,
but not a vote as to where one was going.
And, of course, there's
then as the months pass
and people try to understand the messages
that are coming up from London.
This is helped by the fact
that English is a very
accessible language,
but that has the disadvantage
that if a speech is made
essentially for domestic political reasons
that the same speech is being read
in all the capitals of Europe,
and people are trying to understand
what is behind the speech.
And then there was the
Lancaster House speech,
in which the Prime Minister
set out what her purposes were.
The UK press was fairly
triumphalist about that.
Front page of The Times
the following day read,
"May to EU: Give us Fair
Deal, or You'll Be Crushed."
(audience laughs)
The speech got a slightly
less enthusiastic reception
for example, EU
ambassadors who attended it
in Lancaster House
who spoke of unnecessary
and unhelpful threats.
The Czech Republic Secretary
of State for EU Affairs
took to Twitter.
You see, it's not just an American habit.
He took to Twitter to ask,
"Where is the give for all the take?"
And the EU Council President, Donald Tusk,
lamented what he called,
"The sad process and surrealistic times."
The Prime Minister put
out, in that speech,
12 principles and she
referred back to that
and to the white paper in
the actual Article 50 letter.
There is a persistent
perception, it should be said,
among an EU audience,
that the avowed clarity
of the Prime Minister's 12 principles
isn't actually clarity,
it is cherry picking by another name.
And again, I should add here,
that a number of colleagues
at the court, and elsewhere,
with a sense both of history and morality,
have pointed out that the United Kingdom
was strongly behind the massive
expansion of the EU in 2004,
and that they supported
the additional expansions
in 2007 and 2013.
In so doing, say these commentators,
the UK gave moral commitments
to the accession states
and offered apparent leadership.
With Brexit, they say,
the UK is turning its
back on those commitments.
That's something that's a little painful,
as a British citizen, to hear.
So, what is the overall EU perspective
towards the Brexit negotiations?
Well, let me quote from Guy Verhofstadt,
who is the European
Parliament's Brexit negotiator.
He gave a very clear and very
frank summary in an article,
which came out in the
Guardian on 18th January.
He said this, I quote:
"The EU will work in a
frank and open manner
"to help deliver a Brexit
"that is least harmful for all concerned,
"but we must be honest
with each other too.
"The days of UK cherry picking
"and a Europe a la carte are over.
"No one in Europe wants to punish
"either Britain or the British.
"I've never heard any MEP or
European leader call for this
"in private or public,
"but it is an illusion to
suggest the UK will be permitted
"to leave the EU
"but then be free to opt
back into the single,
"the best bits of the European Project.
"For example, by asking for zero tariffs
"from the Single Market
"without accepting the
obligations that come with it.
"I hope the British people will see
"from the perspective of an EU taxpayer
"how unreasonable this would be."
So, in the UK, Brexit is center stage.
Is it center stage for the European Union?
I'm going to say
something really shocking.
I told you I was an opinionated woman,
and I'm going to say
something really shocking.
As far as the EU is concerned,
Brexit is a messy sideshow.
It is not the main act on the playbill.
It is an immense
time-consuming distraction.
It sucks time and energy
and resources away
from other things that are more important.
And, just as the British side
of the negotiations to come
have red lines, well known red lines.
Mrs May doesn't like migration.
She doesn't like jurisdiction of my court.
She really doesn't like the
jurisdiction of the court.
And she has doubts about the budget
and she wants to take back control.
We know the British red lines.
There are also red lines on
the EU side of the discussion.
And the red lines for the EU include
what about the three million citizens
from other parts of the EU
who are currently in the United Kingdom.
They include trying to get
the British to understand
that if you're not a member of the club,
the deal you have is
slightly less attractive
than being a member of the club,
and they also include paying the bill.
I think one should
probably leave it there.
I'm going to freeze the film
while I look briefly at the
other aspect of this tale,
which is trade deals.
I'm going to trim this,
because I want to leave you
time for questions and answer.
As I indicated,
I have spent a lot of time
thinking about trade deals.
There are some pretty basic
economic realities on this.
Economists, with apologies
to my brother in the audience
who is a professional economist
and has been one all his working life.
I also did economics at an earlier stage.
And economists love the example
of the factory producing widgets.
A widget is a standard economic unit.
It's something you make, right?
However, the modern widget is not simple.
The modern widget is probably the result
of an extended chain of production
that involves components that are sourced
from different countries
and there's some sub-assembly work,
and then half assembled sub-assemblies
have to cross frontiers
and possibly they go back and forth
across frontiers several times
before the completed widget rolls off
the final production lines.
So, you do not want to have
customs and frontier checks
happening at every stage
when the sub-assembly
goes across the frontier.
You do not also want the assembly line
to be brought to a halt
because there's a crucial component
that is held up in customs
at just the wrong moment.
And, the fact that there is sub-assemblies
is a real issue when you're
structuring a trade deal.
You also, second real issue,
and I again I abbreviate,
you also need stability
of access to the markets.
So, you want your widgets to be saleable
in all your destination markets.
So, you want the same rules
that you're trying to
manufacture to, same standards.
Otherwise, you have to configure
your widget differently
depending on where you're selling it.
Obviously, you don't want to
be kept out of the other market
by the type of crude trade protectionism
that goes by the name of
quotas and or tariffs.
But there are, and very
importantly there are,
the non-tariff barriers to trade.
It's no good at all getting your widgets
tariff and quota free across a frontier
if they then sit in a warehouse.
You need to be able to
get them on the market.
To get them on the market,
they have to be recognized
as being fully compliant
with your local regulations and standards.
And so you have to get a
recognitions of standards,
usually, by the way, there's
a court involved somewhere
in terms of adjudicating on disputes.
Now this is all terribly technical.
It's terribly boring and deeply unsexy.
It doesn't make any kind of
a good political soundbite,
but it is what international
trade is about.
And by the way, if we're
talking classical economics,
we talk about capital,
we also talk about labor,
well replace the word labor
by immigration, hackles rise.
And of course, unlike widgets,
workers have families and
children who need to go to school.
But also workers pay taxes and
social security contributions
they help to fund the social provision
in the home Member State
and, from an EU perspective,
free movement of workers,
together with freedom
to their establishment
and freedom to provide the services,
is a non-negotiable pillar
with free movement of
goods of the Single Market.
The four freedoms go together.
You know the British like sports, right?
Let's use a sports analogy.
If everyone is playing a
game of association football,
and they're playing by
the rules of soccer.
One player cannot be authorized
to pick the ball up and
run with it in his hands
as if he were playing American football.
I mean, it's a great game, but
it's not the same as soccer.
And that is a basic issue in terms of
what the deal could be
between the UK and the EU.
And I add that to judge by
the Singapore agreement,
which is two fat volumes that
I spent ages crawling through,
actually even without access
to the EU Single Market,
some free movement of labor
necessarily finds its way
into some very complicated, sophisticated,
elaborate, bespoke trade deal,
because often free movement rights
for some categories of labor are needed
in order to make the trade agreement work.
In order to enable the company
to set up, for example.
And it is interesting,
that over the months
since the Brexit vote,
ministers in the United Kingdom
have occasionally let slip how much
certain sectors of the UK economy,
such as the hospitality industry,
such as the harvesting of
seasonal crops, such as fruit,
such as the National Health Service.
There's certain sectors that
are dependent on migrant labor,
and a lot of it comes from the EU.
The other very unpopular
thing to say about trade deals
is that they're very detailed.
They're very complicated.
They take a long time to put together.
If I use the EU-Singapore
Trade Agreement as an example,
and I look at what was
the core period of that,
so I exclude the earlier attempt
to negotiate a regional Asian agreement.
I exclude the period of time
spent cleaning up the text
and trying to make sure that
all the cross references work.
So, I leave all those out.
The negotiating time for that deal
was four and a half years.
And the resulting agreement
consists of a preamble,
17 chapters, a protocol,
and five understandings.
It's a very long, technical read.
There was an analysis made
by the Peterson Institute
for International Economics
of the last 23 trade deals made by the US.
That shows the average time
from talks being launched
to the deal being
implemented was 45 months.
This is not quick and it's
not something happens even if
there were parallel
negotiations on exit terms
the UK and the New Deal.
It's not something that very naturally
fits within a period of two years.
Finally, on this,
and again I do apologize for stressing
something that is surely
blindingly obvious,
a negotiating table has
two groups of negotiators
sitting on opposite sides of it.
How long a deal takes to do,
what ends up being included,
that certainly reflects the complexity
of the issues that need to be discussed.
By the way, the Singapore
agreement shows that services
are a particularly complex
and sensitive component
of any trade deal
and one of the elements
that's been highlighted
as being a big issue
are precisely banking services,
financial services, the
role of the City of London.
Services are not done quickly or easily.
I certainly have no
intention of predicting
what's going to come out as a trade deal.
More than that, I'm not going to predict.
I don't wish to predict, I am British.
I'm not going to predict that
the UK will necessarily fail
when it leaves the EU.
And people who take that scenario and say,
"It will fail,
"the only question is
what are the time lags
"and just how catastrophic
the failure will be
"and which sectors of British society
"will be worse affected."
I'm not making that prediction.
It may be that the UK will succeed
in re-inventing itself.
If it does, I doubt, myself,
that that will be as a global power
in a style reminiscent
of its imperial past
because I truly believe
that those days are gone,
and gone for good.
But the UK might,
like Austria which is another
former European imperial power,
it might find a different
international persona.
It might, in certain, lack
areas, in certain contexts,
we hold soft power and influence.
If it's really lucky,
it may manage to do that
without shedding Scotland
and Northern Ireland
from the United Kingdom.
Because the United Kingdom
of England and Wales
doesn't have quite the
same ring to it, I find.
But I'm not sure that
the UK should assume,
as so many in Westminster
at the moment seem to,
that the UK's bound to do better
outside the EU than inside it.
We're all going to have to wait and see
and what happens will
turn, at least in part,
on what version of the Brexit
the UK seeks to obtain,
what deal it finally gets,
and also what other deals
are being negotiated.
So, to the conclusion,
and this is where I reach
for that crystal ball.
Does Brexit sound the
death knell of the EU?
Well, will this, as Mr Farage
openly has wished, y'know,
"Well, we've managed to get the UK out
"and bring the whole structure down."
I don't think so.
I really don't and that's not what I,
apart from my desire not to
see the European Project fail,
is also objectively from what I see,
I do not think that is going to happen.
Is the EU going to be paralyzed
until the Brexit saga is over?
I was afraid that would happen
and indeed I was speaking in Birmingham
a couple of months ago
and I mentioned various new ideas
that had started to surface
and then I said, rather sadly,
that it looked as though
they were being put on hold,
until we were finished with Brexit.
I have never in my life
been happier to be wrong,
because actually the earlier discussions
which had talked about having
two concentric circles,
the EU, outer circle associate members,
some rights and privileges,
and an inner circle of
full members, you know.
After the initial shock
of the Brexit referendum,
actually it seems to have acted as a spur
to reflection within the EU,
and there are signs of
real determination to act.
On 1st March, the President
of the European Commission,
Jean-Claude Junker issued a white paper
on the future of Europe.
He set out five scenarios.
One, carrying on.
Two, nothing but the Single Market.
Three, those who want more, do more.
Four, doing more less efficiently,
or doing less more efficiently.
Try and get it the right way round.
I typed it wrong, that was my mistake.
Doing less more efficiently.
And five, doing much more together.
There are early indications,
from four big Member States.
From France, Germany, Italy, and Spain,
that they support Junker's third option.
Namely those who want more do more.
The two speed solution.
As Chancellor Merkel put
it at the press conference:
"We need to have the courage
for some countries to go ahead.
"If not everyone wants to participate
"a Europe of different
speeds is necessary,
"otherwise we will probably get stuck."
That's a wonderful and
very Merkel-like remark.
Very straight, very down to earth.
I'm going, unashamedly, to
finish by quoting from a speech
that a Spanish MEP, Esteban Gonzalez Pons,
made in the European Parliament,
the debate being held to
mark the 60th anniversary
of the Treaty of Rome,
which was on 25th March of this year.
It sounds even more wonderful
in the original Spanish.
But I think that you will
get enough of the flavor
and the passion from my translation.
"Europe is presently limited
to the north by populism.
"To the south by the
refugees drowned in the sea.
"To the east by Putin's tanks.
"To the west by Trump's wall.
"In the past by war and
in the future by Brexit.
"Today, Europe is more alone than ever,
"but its citizens do not know.
"Europe is, however, for that very reason
"the best solution and we do
not know how to explain that
"to Europe's citizens.
"Globalization teaches us that
today Europe is inevitable,
"the only option and yet
Brexit teaches us also
"that Europe is reversible,
"that you can walk backwards in history.
"Even though outside
Europe it is very cold."
(Eleanor speaks Spanish)
"Europe is the solution."
I go on with the text,
"Brexit is the most selfish decision made
"since Winston Churchill saved Britain,
"saved Europe with the
blood, sweat, and tears
"of the English."
Little footnote here,
please don't forget about the
Irish, Welsh, and the Scots.
But it is very common
to English for British,
so I think we will forgive him.
"Saying Brexit is the insidious
form way of saying goodbye.
"Europe is not a market, it
is the will to live together.
"Leaving Europe is not leaving a market.
"It is leaving shared dreams.
"We can have a Common Market,
"but if we do not have common
dreams, we have nothing.
"Europe is the peace that came
after the disaster of war.
"Europe is the forgiveness
between French and Germans.
"Europe is the return to freedom
"of Greece, Spain, and Portugal.
"Europe is the fall of the Berlin Wall.
"Europe is the end of communism.
"Europe is the welfare
state, it is democracy.
"Europe is fundamental rights.
"Can we live without all this?
"Can we give all this
up for just a market?"
Thank you very much.
(applause)
- We have twenty minutes
for question and answers
and I'm sure that there will be many
but I'm gonna ask the first one.
(laughter)
- That is the privilege
of being Professor Weiler.
- So, I'm going to ask you about Scotland,
but I'm actually going to frame it
as a technical legal question.
If Scotland were to
leave the United Kingdom,
there would be no question
that the United Kingdom
remains in the European Union.
There might have to be some adjustment
to the number of MEPs,
because that is determined by population.
There might have been some adjustment
to overrides in the Council,
but there would be no question
that the remaining state
is the United Kingdom minus Scotland.
If the reverse happens,
would not Scotland be the
remaining United Kingdom
without England, Wales,
and Northern Ireland?
And we would not have to think about
the renegotiation of Scotland into,
but just an adjustment
of its rights and duty,
as the United Kingdom minus England?
- That's a very nice question
to for the first answer.
First of all, there was
an extensive and there is
an on-going academic
legal debate in Scotland
about whether Scotland needs to reapply,
or whether Scotland could,
as you nicely put it, take over
the UK slot so it's Scotland
as the United Kingdom (that is
is Scotland minus the rest).
By the way, I suspect
that Northern Ireland
would love to join Scotland
on this arrangement.
It's certainly a defensible position.
There was a document produced.
A document called the Dalriada document,
which was produced shortly, from memory,
it was produced shortly
after the referendum.
In summer of last year by Brendan O'Leary,
who's at the University of Pennsylvania.
and what was being suggested
was a constitutional
reconfiguration in the UK
such that when either Article
50 wouldn't be triggered,
or when Article 50 was triggered,
it would be triggered but with a sort of
potential carve out so
that it would only be
the non-Scottish and non-Irish
parts of the UK that left.
I think the problem, or a
problem now, may be precisely
that Theresa May has written
a letter which gives notice
on behalf of everyone and
also in the letter itself
and I'm just reaching
for it because I don't,
mercifully I've not tried
to commit it to memory.
In the letter itself, she says that,
"The UK, from the start and
throughout the discussions,
"we will negotiate as one United Kingdom
"taking into account of
the specific interests
"of every nation and region
of the UK as we've done so."
And she goes on to talk
about return of powers
and will concentrate on what's
going to be in Westminster
and what's to be devolved and so on.
And it might be said that the trouble is
that she's given notice
on behalf of everyone,
and that in so doing, she has
closed off a potential option.
And you can also try and
argue it the other way,
but it's an additional handicap.
I think it may perhaps be
permitted to me to add,
that the sense I have from
what's happening in Scotland.
I was in Scotland about three weeks ago,
and it was like anthill
that somebody's kicked
and there was a real sense of
concern and, yeah, indignation
as to how matters were progressing.
Just to give a little
illustration of the problem.
Scotland produced, Scottish government,
produced a very thoughtful
and detailed paper
called Scotland's Place in Europe.
And in that paper, they
looked at the various options.
They looked at what Scotland's
economic needs were.
In fact, Scotland actually
needs inbound migration.
And they looked at various possibilities.
And they said,
"Look we'd like to stay in the
EU, but if we can't have that
"then some sort of
arrangement maybe EFTA."
You know, they go through the options,
and they sent that document to Westminster
and they fixed a date in the diary
for the document to be discussed.
Two days before that date,
the Prime Minister gave
the Lancaster House speech
which therefore closed off
every element of discussion
before the discussion had ever happened.
And you don't have to
be a native-born Scot
to feel that that's perhaps
not the appropriate way
of reacting to a big discussion document
from the Scottish government.
- I know quite a few lawyers
who would manage to get
around the Theresa May letter.
- I think so.
- The floor is open, yes ma'am.
- [Maria] My name is Maria Estrada,
I am a graduate student
at Columbia Law School.
I have two questions.
- No, no, only one is allowed.
(laughter)
Just one question.
- [Maria] Okay.
- One question.
- [Maria] Do you think the UK
should never have been
accepted in European Union?
Do you think Charles de Gaulle was right?
Like he rejected twice the
UK membership into the EU?
And second, do you think Brussels
will make it very difficult
in the negotiations process
for the UK to leave?
- To combine a single answer
to what was a single question
with two limbs, best traditions
of France (speaks French).
The first (speaks French),
membership of the European Union
is open to any European state.
So, on that basis,
I believe the UK qualify
and what political decisions are taken
are outside my province, I'm a lawyer.
In terms of the second question.
In a sense, I don't think Brussels has to
quotes make it difficult.
At the moment, there are
two different perceptions
of what can be negotiated.
There is the UK perception which is,
"Here is our shopping list
and you're going to say yes."
And the letter that was
written by Prime Minister,
as well as speaking,
I believe, seven times
of a deep and special partnership,
also spoke of a deep
and special partnership
that takes in both economic
and security cooperation.
So, the two aspects were linked.
I think again it would be fair to say
that didn't go down too well.
- Christine, one question please.
- [Christine] Only one question.
You end it with a citation, I
think we all would agree here.
My question is now
why does the Commission
with this white paper
on the future of Europe then
so often say the aim of the European Union
is that everybody profits from it
makes very much the European
Union just to be a market.
So, I wonder, how, if we sort of agree
with the last citation,
how the European Commission
can have such a thin
and such a market
concentrated reduced idea
of the future of the European Union?
- I think that question
should perhaps be directed
to the European Commissioner
rather than a member
of the European Court,
and I think possibly that the
one of the confirmed points
was indeed trying to
redress the balance of it
by reminding the people of
the non-economic dimensions
of the the European Project.
- Yes, Peter.
- [Peter] So, your final citation
reminded me of d'Azeglio's
famous line about Italy that
"We have made Italy."
Now we must make European (peter laughs).
and the same idea applies
obviously to Europe.
And in saying that Europe
has a role to live together
really begs the question of
how does Europe have this will,
or what do they have the will to do?
Germans believe in discipline
and internal evaluation.
Others might say that
we need to figure out a way
to actually have solidarity
and the capacity to
recycle German surpluses
throughout the Union.
These are fundamental
political disagreements.
Even though at a level of generality
people could say Europe is
about will to live together.
In that regard, you've invoked a line
between law and politics several times.
Aren't we at the limit to the law
in what we can engineer by law
because something more
fundamental has to occur
in order to have a sustainable process
of European integration at the time?
- Yes.
(laughter)
And the next question was?
(laughter)
- I think it's possible
to will to live together
even if there's one
has different projects.
It's just about every marriage I know.
- [Man] Thank you very much.
So, I'm not gonna ask you
a question about Brexit,
it's too depressing.
- That's a relief.
- [Audience Member] It's too depressing,
I live in Strasbourg
and teach in Strasbourg
and I'm really feeling very un-European.
So, I'm going to tackle the second issue
that we didn't really have
much time to deal with.
It's trade deals.
And trade deals are at the
moment very much criticized
in Europe from deeper
than very un-European.
I know because I advise some of them
and they're not anti-European Project
but still have legitimate
concerns on how they come about
that transparency and about the content
of these trade deals.
So it's very difficult as
a European at the moment
to be critical about y'know these deals,
but still you need to kind of
look a little bit into these.
And so, in your opinion,
you were on the Singapore-EU
Trade Agreement.
You were not asked about the
substance of this agreement,
but do you think it is
compatible with the EU Treaties?
And by extension,
because we know that
CETA will be submitted
to the Court of Justice
for an advice, an opinion
on its compatibility with the treaties.
By extension will CETA be also,
do you think as Advocate General
that it's compatible with the EU treaties?
(Both talk over each other)
- I think you'll understand,
I'm not going to comment substantively
on either of your questions.
I didn't look at the, I did
what I was required to do
which was to look at the competence issue,
whether it was EU competent,
or exclusive, or shared competence,
and answering that question,
led me to write the longest opinion
that I've written in 11 years at the Court
and it took about eight
months of solid work.
I have no intention of
trying to answer the question
whether the substance, every
aspect of the substance,
of the Singapore trade deal is
in every last inch and respect
compatible with EU treaty.
The court hasn't been asked that question
and I'm not going to
try and answer it now.
And, for the same reason,
I think you'll appreciate
that as a serving member of the court,
the very last thing I would do
would be to hazard a speculation,
because it would be
nothing more than that,
about what would be
the outcome if and when
somebody who has the entitlement
to put that question to the Court,
asks the Court to deliver
an opinion on the CETA deal.
I can tell you one thing,
this Advocate General
hopes with all her heart
that nobody will ask her the deal.
(laughter).
- Can I take that question?
You can try, sir, but.
Yes, please?
- [Audience Member] So,
you made a lot of reference
to a question that's very
much an existential question
in the European Union-
- Sorry, I made a lot of reference to?
- [Audience Member] Oh,
you made a lot of reference
to a question that's very
much an existential question
in the European Union, which
is European integration
between Member States
and talked about finding the balance
between national sovereignty
and closer community-
- I think I made one sentence about, yep.
- [Audience Member] The
Rome Statute talks about
an ever closer Union.
So, we can look at national polling
to figure out what European populations
feel about closer integration
and the levels of integration
that have already been reached
in our plan.
My question is, among your colleagues
who work in the European Union,
what are their ideas about
what the role of the
European Union should be?
Do they think that Brexit is
maybe a call to step back?
Do they see it as an
opportunity to push forward
without the UK maybe putting the brakes?
Where from now do they believe
the European Project should go?
- Well, the colleagues I worked with
are my professional
colleagues at the Court
who are judges and Advocates
General of the Court.
And I can tell you, and
I mean it very sincerely,
that our job is to judge cases.
We do not produce general statements
about where we think Europe is going.
We decide according to law,
cases that are submitted to the Court.
That is my professional job.
That's the professional
job of my colleagues.
And that's what we do.
I'm sometimes have been asked in the UK
questions rather along the lines of,
"Surely there's always this
big federalist plot and so on."
And the Court is engaged
in a process of power grab,
this is the Daily Mail question.
And I have tended to
say in answer to that,
maybe I'm very unobservant,
but in 11 years at the Court,
I confess that I haven't actually
come across this project.
I have argued with colleagues
as to what is the correct
legal solution in place,
but the conversation has never taken place
against the backdrop of
"But surely, Eleanor you remember
"that the Project is following you."
It's never happened.
- Yes, Thomas.
- [Thomas] Yeah, I have a
question that Roniel alluded to
in the European Union introduction
and it's about the impact of
Brexit on the Court itself.
So, I was wondering
whether you could comment,
at least in general,
to us about the legacy of
the British Advocate Generals
at the EU Court of Justice.
If Brexit indeed happens,
whether the contribution
in terms of methodology
in thinking about cases,
in distinguishing cases,
and having a very particular
tone in writing those opinions,
whether that will endure
and might influence
other Advocate Generals
from other countries,
or whether you think we might go back
to a more continental
way of Advocate Generals
approaching their role at
the Court after Brexit.
- I feel a little bit as though
I'm assisting at my own wake here.
(laughter)
Which is slightly uncomfortable feeling.
I know that a lot is
made of the distinction,
the differences between
the common law approach
and the continental approach.
I have to say, I know
there are differences
between Advocates General,
but I'm not sure that
they're as explicable
in as simple terms as that.
And I say that partly because
as an Advocate General,
I work with a team of four
lawyers who work directly with me
and those four lawyers are a
Scot, an English barrister,
so out of the same tradition as myself
from Government Legal Service,
a Greek, and a Pole.
And I'm not sure that when you
put that combination together
and we're drafting an opinion
that what you end up with is
a pure common law let's
distinguish the precedent approach.
At least, I hope you
don't end up with that
because if that were the
way that I wrote an opinion,
I think it would be less
useful to the Court.
I try and write an opinion which,
notwithstanding that you may be reading it
from a different part
of the legal universe,
is still going to be helpful.
Is still going to clarify the issues.
You are still going to understand
why I promote a particular
solution over another.
I think, I will speak of my
predecessors, not of myself
because I'm not judging
my own level of work
and how much it's been a contribution.
I think you can certainly,
looking back at initially
Jean-Pierre Warner,
but then very much Gordon
Slynn and Sir Francis Jacobs,
particularly perhaps Francis
because he was so long serving.
I think you can detect there
a distinctive contribution,
and it's a contribution
which comes from people
who are used to giving
an individual opinion
and being prepared to stand
up behind it rather than,
"Here is the first draft
"and now let's get the college together
"and get us to agree it."
So, I think perhaps there
is an individualism to it
and sort of, if you like,
a preparedness to take a first draft
from one's referendaire
but then really to invest
one's own individual perception
of where the law should
go and why it should go.
And I think it would be sad
to lose that contribution.
I'm thinking of Francis Jacobs'
really magisterial opinion
in UPA on locus standi, for example.
I can't imagine that, in fact,
being written by an Advocate General
from a different tradition
and Francis' opinion
may not have been followed by the Court,
but then subsequently,
the Convention and then
the Lisbon Treaty actually,
the goalpost shifted in part
because of what Francis wrote.
And that surely has to be
a landmark contribution
and I'm proud that somebody
from my own legal tradition
made that contribution.
- Well, we have to thank maybe
special status to Ireland
ad-hoc Advocate General to kid.
- One question, Jenya.
- [Jenya] It was kinda
similar to Thomas' question,
but I was wondering if you experience,
we've seen that there is a difference
in the way the Court functions.
Even the way the opinions
of the Advocate Generals
and the judgments of the Court are made
according to the composition
of the EU itself.
Probably changed when
the new countries came.
Probably changed in 2007, 2013.
So, I was wondering if
this would have an effect
on the way that the Court functions?
- That's an interesting question.
I think that certainly
there has been a change.
I'm having more difficulty, if you like,
in deconstructing exactly
what the components are.
You bring more people in to the Court,
You bring people in who come
from different backgrounds
and legal traditions,
and they also have a different
lived experience as citizens.
So, you know, if you lived under communism
and made your way through your career
and there was the fall of communism
and then you're an accession state,
that does mark the way you see the world.
But, I think what I'm
saying there is that,
regarding the Court as a
sort of homogenous unit
it's actually a bit misleading,
because each of us comes to the Court
with our own legal tradition
behind us certainly,
but also with our
personal career behind us.
I know very well that
the opinions that I write
and views that I form are configured
by my own family history,
by the fact that as a practitioner
I did EU cases but I also did
quite a lot of pro bono human rights cases
in front of Strasbourg,
and by the fact that I'm an
academic and a practitioner,
and so I have those two elements.
And I know perfectly well that, you know,
you could deconstruct
what I write as opinions
and you could say,
"Well this Sharpston opinion
has got these elements in it,
"because that's Sharpton's background."
And then if you were to do
exactly the same analysis
for my colleague,
Advocate General Mengozzi,
very senior Italian professor,
you know, you could do.
In other words, the Court
is made of human beings.
And there are also external factors
which I think are very important.
The Court is much, much busier
now than it was 20 years ago.
It's much busier now than
it was when I joined it.
And that also puts a
particular form of pressure.
To take the simple example,
we used to be very, very
indulgent and friendly
towards Member States' courts
and even if the question
they asked was a bit fluffy,
and even if they didn't put it very well,
and even if the relevance with
EU law was a bit tangential,
and even if the order for
reference was pretty rubbish,
we still more or less managed to work out
what they were asking us about
and we would answer the question.
And we're nothing like as
friendly and cuddly any more.
We really aren't, you know.
We now say,
"Here are the rules, you put
a new Article, Article 94,
"into the rules procedure,
"this is what an order for
reference shall contain
"and if it doesn't contain
that then we'll chuck it out!"
Now, that's an indication of change.
- Just taking up on that,
I would like, if possible, to
finish on this personal thing.
Will you be willing to share with us
what was the opinion you
wrote that made you happiest.
That you're most proud of,
that you look back and you say,
"If nothing else, it was worth that."
And the one that gave you most grief.
- I think there's a problem,
because the work you've just done
is always fresher in your mind.
I'll tell you that actually
very recently of course,
I wrote the opinion in the veils case,
and that is both is easily identifiable
as an opinion which I spent a long time,
I worked with David Gilbert,
my Scottish lawyer, on that
and we both invested very heavily
and we tried to explain
why it was so important
to understand the balance
between the right of the
employer to run his business
and the right of an Islamic,
practicing Muslim employee
to wear hijab,
and I was very, I was
pleased with what we wrote.
I was wondering how the Court
was going to square the circle
on two Advocate General's opinions
that went in different
directions in two cases
with fairly similar facts,
and I was uncomfortable
with the combination
judgments that came out,
because I think there was
a danger that the Court
would be understood to have
endorsed discrimination.
I don't really think that's
what the Court meant to write,
and I think you can read the judgments
not as endorsing discrimination,
but I wasn't very happy
with what came out.
So, probably I've identified an opinion
both that I was happy about writing
and one where I wasn't too happy
about exactly what came
out at the end of it.
I'm lucky, I've wrote
quite a few opinions also
that I've been quite happy
about writing, thank you.
- I want to thank you
on behalf of all of us.
(applause)
