The court you are president is inactive a little-known institution in Poland, much little recognisable than the EU Court of Justice. It is known that it is handling complaints about the decisions of the European Commission and another EU institutions. How would you describe his function as short as possible?
We have judicial control over what the European Union is doing, i.e. the Commission and another EU institutions, bodies and agencies, specified as Frontex or the EU Intellectual Property Office. There are many of them, and their decisions have a wide scope of addressees and can straight affect average people, businesses, workers of EU institutions or even Russian oligarchs. It is before the EU Court that these entities may get protection of their rights. These may besides be matters concerning associate States or their regions. This is where EU authorities would take a decision that would in practice mean restrictions on the traffic of combustion vehicles for Warsaw, Paris or Athens. Or if the usage of the plant protection product is banned in a circumstantial region. These are issues of applicable importance for many EU citizens. We besides deal with trademarks, and these, as you know, are everywhere. If individual wanted to illegally copy or registry a Batman mark or Leo Messi's name, sooner or later specified a dispute could go to the EU Court.
Statistics show that disputes over intellectual property are a crucial part of cases before the court – over 300 per year. Is this about trademarks?
Yeah, we have a steady influx of cases like this. It is frequently about refusal to registry a mark, opposition to registration or the expiry of the right to trade mark. But there are besides cases concerning, for example, Google's abuse of dominant positions. Although not so numerous, they are far more crucial to the marketplace than many trademark cases.
Will the court be a guardian of consumer rights in dealing with specified digital giants?
The court will most likely be investigating disputes between the Commission and digital platforms, but it is besides early to say anything specific. EU regulations specified as the Digital Services Act (DSA) or the Digital Markets Act (DMA) have been in force for respective months. The Commission has managed to make a fewer decisions on the basis of them for the time being, although it has indeed challenged any practices of large digital platforms. You can anticipate a dispute against that, although I don't think it's a tsunami. possibly it will be alternatively a stream passing gradually into a river. Moreover, a akin phenomenon will most likely be observed at associate State level. It is their authorities who are competent to make decisions on certain issues concerning smaller players in the digital market. National courts will control these decisions. This in turn opens up the anticipation of dialog with the Court of Justice.
For an average person, the fight between consumers and Microsoft or Google is like the fight between David and Goliath. Any chance of winning?
That's why DSA and DMA were created. If disputes with these giants were based on average competition laws, even the European Commission could not deal with this, even due to the complexity of the proceedings. The procedure for demonstrating harm to consumers could proceed for years. The fresh regulations offer the chance for much faster action, essential in the context of the rapidly changing reality of digital markets.
In Poland a wider audience heard about the EU Court on the occasion of the fines for Poland related to the mine in Turów. Can this case continue?
Our court has dealt only with a case of accident, not a meritum. After all, in the dispute over the operating licence of this mine there was a settlement between Poland and the Czech Republic, which resulted in the Czech Republic withdrawing the complaint from the Court of Justice. Previously, the Vice-President of the Court imposed a fine on Poland for not implementing the alleged interim measure, i.e. stopping mining in the mine for the time of processing the Czech complaint. The court held respective days ago that its withdrawal by the Czech Republic and its removal from the TSUE registry did not exempt Poland from the work to pay the penalty. Poland has the right to appeal this judgment; however, whether this is the case – that should be asked by the applicable state authorities. It is only regrettable that there has been a dispute between the 2 neighbouring associate States at all. I don't think that happens much.
The EU Court is about to take over the competence of the EU Court in relation to questions referred for a preliminary ruling in certain areas. Like what?
These will be taxation matters: VAT and excise duties, as well as customs and explanation of the Combined Nomenclature utilized for the classification of goods. We will besides address the issues of the greenhouse gas emanation allowance trading strategy and passenger compensation in case of hold or cancellation of transport services.
Where did the request for specified a change come from, and what is its basis?
The Treaty of good of 2001 already provided for the anticipation of transferring any of the powers of mention for a preliminary ruling from the Court of Justice to court. Until now, this anticipation has not been used. It cannot be hidden that there are more and more cases of a different nature to the Court of Justice. This is due to the fact that European law in 1 way or another has already covered almost all areas of life. The TEU is simply a constitutional court in which the examination of cases, especially those of socially delicate people, takes a long time. More than 800 cases a year affect him. Meanwhile, if I'm not mistaken, the U.S. ultimate Court decides no more than 90 cases per year, the UK ultimate Court – ca. 80. Similarly, the German Constitutional Court issues about 100 decisions a year. Many cases entering the TEU are very sensitive, frequently requiring consideration by the Grand Chamber, i.e. 15 judges. These are matters concerning the regulation of law or spiritual freedom, specified as whether teachers in a public school can wear muslim headgear. Next to them are more method matters, specified as the tariff classification of goods, the VAT rate on lamps or passenger rights in case of hold of flight. The Court of Justice has drawn close to the limits of its capacity and has thus shown the request to transfer any cases to the EU Court of Justice. We have comparatively less cases in it and with more "processing powers". This is the consequence of a fresh change, resulting in the number of court judges rising from 27 to 54.
Are these judges decently prepared for specified complex matters as VAT or excise duty?
In the TEU, which dealt with these cases, there is no specialization of judges in the individual thematic areas. There are, of course, judges from various countries who are excellent specialists in VAT matters, specified as the Polish justice Prof. Nina Hemptorak. But I do not anticipate an organizational revolution or hiring fresh judges according to the key experience in taxes or passenger rights. dialog with national courts will be entrusted to 2 fresh chambers of court. Their main task will be to consider the questions referred for a preliminary ruling, which requires a different, more abstract approach, separated from the facts of the case and applicable in all associate States. Let us bear in head that, ultimately, national courts will be the ones who have raised specified questions.
Perhaps, however, it is better for a justice to know, for example, the specificity of specified a complex taxation as VAT?
Our judges should gain cognition of taxation or another matters transferred to the courts. But it should not be a problem for them to any extent. All lawyers request to learn fresh things. The aforementioned DSA and DMA are besides a fresh law that was not there 3 years ago. present we must know them and be ready to regulation on matters concerning them. We will besides make formal and informal contacts with different groups of experts in different fields of law. There are associations of lawyers dealing with consumer or taxation law. We want to benefit from their experience too. So I assure you that erstwhile the first questions for a preliminary ruling are brought to court in October of this year, we will be prepared to rule.
Or should we hire fresh judges for specified a major reform? After all, there is simply a trend in judicial specialisation in various countries. In Poland, the launch of specialised competition courts and consumers was a success. Why not do this in an EU court?
To any extent, we already have a strategy of grouping cases and specializations, e.g. in trade mark cases or for a preliminary ruling. That's how we get into this trend. Furthermore, this is the Court of the European Union, whose judges come from all associate States. I can already imagine what disputes this country would have brought about by the "judge of excise duty" and from which cases concerning greenhouse gas emissions. It is frequently about money. It is crucial to avoid a situation where political rations would become applicable in this context. The treaties do not supply for any specialization of the EU Court or its judges...
...so that erstwhile treaties were created, the planet looked different, and EU law was not so developed.
I think it's better if our 54 judges – and this is not a tiny number at all – agree internally on the division of tasks and then prepare well to deal with cases. Then we will scope our goal. As I said, all lawyers must learn fresh legal issues. Besides, you are most likely watching lawyers who 1 day decide to deal with a full fresh area of law, gain experience in it, become specialists in it, or even enjoy dealing with specified matters. I believe that this will be the case with the judges of the EU Court.
The improvement is due to launch on October 1st. So, if the ultimate Administrative Court decides to ask a VAT question on that day, it will go to the EU Court, not the Court of Justice?
From the point of view of the national court, nothing will change. The "Defense window" will proceed to be one. It is here in Luxembourg that we will launch the procedure for the first qualification of cases. Whether the case will yet go to the Court of Justice or whether it will depend on its nature. For example, if it concerns VAT only, the EU Court will deal with it. However, if the substance has a broader context, including the general Treaty rules, specified as freedom of movement of goods or persons, the TEU will address it.
Will the rulings of the court concerning the preliminary rulings be final?
In principle, yes, but within 1 period of the decision, the Court’s first Advocate General will be able to apply to the Court of Justice to review that decision. These are completely exceptional situations where there would be a hazard of breaching the unity or consistency of Union law. Here I note that there are no Advocates-General in the court at present, but for the purposes of the preliminary rulings we will elect them from among our "our" judges.
Will judgments in Luxembourg be faster and fair?
Accelerating judgement is the primary nonsubjective of the reform. Is it fairer? In many cases, specified as VAT, these are method matters, we will simply point out the meaning of the directive. In this way, we will give national courts the key to the right decisions. But I agree, it is our concern that these judgments be just.
Marc van der Woude has been a justice of the EU Court since 2010. In 2016, he was elected Vice president of that institution. Since 27.9.2019, he has held the position of president of the EU Court.
