The Gazette 1989

SEPTEMBER

1989

GAZETTE

Interview wi th Thomas O'Higgins Judge, Court of Justice of the European Communities

nominations to this court have always been of people of the necessary qualifications and it will always continue to be so. You have had a life in politics as well as in law. You were elected to the DaiI Eireann, you were a Minister for Health, and you twice contested the Presidency. In your judicial career, have you found it difficult to divorce yourself from your politics? No, I have not found it difficult. It is quite extraordinary that when you become a judge you take an oath and become very objective. You have an issue to be decided and you never consider who is on either side of that issue. You decide what has to be decided. I have never felt the slightest difficulty in operating as a judge, even though I have been active in politics and led an active political life. Did you find nevertheless that people who had been closely associated with you in politics did not respect your independence as you did? No, I have never had that experi-

The following is the text of an interview with the Hon. Mr. Justice Thomas O'Higgins, Judge, Court of Jus t i ce of the European Communities which was published in a book entitled Judging the World: Law and Politics in the World's leading Courts by Gary Sturgess and Philip Chubb, published by Butterworths in 1988. It is reprinted with kind permission of the publishers. Interviewer: As somebody who was President of a national court, you would have some appreciation of how national courts feel having a super-national body sitting above them! Thomas O'Higgins: I do not think it is looked at exactly in that way. The Supreme Court in Ireland is the highest court in Ireland and I should imagine the House of Lords in England regards itself still as the highest court in England. It is not that the Court of Justice here mon i t o rs or supervises the decisions of the national courts - in fact it doesn't. Under article 177, it operates merely to ensure that there is a uniformity of interpre- tation of the Treaty and the regulations of Community law. It is the reference system under which a national court operates once it feels that an interpretation of a regulation, or directive, or piece of Community law is necessary for its decision. It refers the question of interpretation to us, we give the interpretation, and the national court proceeds with its job of deciding the case. So you don't feel that the national courts are jealously guarding their preserve against the operation of this court? No, quite the contrary. The remarkable thing has been the generous co-operation by the national jurisdictions and the functioning of the Treaty and of

article 177. Were it not for that generous co-operation, there could not have been the remarkable development of community law and of trust and understanding in the Community itself that has taken place in the last two decades. the relationship between the political arms of the Community institutions and the court? Well, it is really hard to apply these terms to what is, after all, an organistaion in a very formative state - I am talking about Europe. The political arm I suppose would be the parliament. We do not have any relations or connections with the parliament. The executive, in the sense of the permanent controlling party, is the Commis- sion and the Commission is a continual litigant here before the court, bringing proceedings to enforce the Treaty against different countries and so on. Sometimes it succeeds, sometimes not. But the court must maintain an absolutely rigid independence amongst the European institutions. If it did not do so it could not function and the fact that it has functioned and has, if I may say so, such high standing and respect in Europe indicates how successfully it has maintained its independence. Appointments to the court are made on the nomination of a member state. The nominee must be endorsed by all the other states. It is not essential or necessary that a member state nominates one of its own nationals. A member state could nominate a national of any country, although I am bound to say it has not occurred. The requirement is that it should be a person who is a judge of the highest standing or have equal qualifications. So far as I know, Could you talk about How political is the process of appointment to the court?

The Hon. Mr. Justice Thomas O'Higgins. 283