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GAZETTE
SEPTEMBER
1989
Interview wi th
Thomas O'Higgins
Judge, Court of Justice of the European Communities
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.
Could
you talk
about
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.
How political is the process of
appointment to the court?
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,
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 Hon. Mr. Justice Thomas
O'Higgins.
283