National lower court judges experience difficulties in applying European law

EU law has an important influence on numerous fields of national law. National judges are expected, both by ‘Brussels’ and nationally, to apply EU law consistently in the cases they deal with. However, this theoretical legal construction does not take into account the practical problems that national judges experience when applying EU law, such as a combination of time constraints and a lack of routine. Additional training of judges could help in solving this matter.

The challenge

EU law has an increasing influence on numerous fields of national law in the EU member states. From an EU perspective, national courts act as EU courts when a case is to be decided that touches upon an area in which EU law is relevant.

However, these expectations may not necessarily coincide with the way in which EU law is applied in practice or with the perception of the European legal order by national judges in the EU member states.

The pan-european challenge of application of EU law by judges in national courts is at the same time a very personal or local one. Delivering a judgement without adequately taking into consideration relevant EU rules, leads not only to an inadequate outcome but might also result in a lengthy and costly appeal procedure for all actors involved.

The response

The research team looked at the experience of Dutch and German private law judges with the (non) application of EU law through interviews and questionnaires. It concluded that EU law played only a minor role in the daily work of most judges in lower courts. Furthermore, judges generally felt they didn’t know as much about European law as they should. However, the fact that they rarely apply EU law is not necessarily caused by a lack of knowledge. Rather non-application is often caused by a lack of time to take EU law into consideration combined with the awareness that if EU is relevant, this will be applied by appeal courts.

The recommendations of the research team include:

  1. Training courses for judges on increased awareness of areas in which EU law may become important in their daily work
  2. Building and maintaining an online database that enables national judges to retrieve information on how their colleagues in other Member States have solved similar problems in relation to EU law. Such central tool would provide necessary information to national judges when applying EU law.
  3. Establishing coordinators as contact points for EU law at German courts. These coordinators already exist in the Netherlands.

Project details

Project leader: Prof. Dr. Mark Wissink
Duration: 2007 - 2010
Contact: Kejia Guo