Exclusion of the judge
Carla Vanlo made this Informationsfreiheit request to Gerichtshof der Europäischen Union
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Dear Court of Justice of the European Union,
Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information:
Is it necessary to exclude judge of the General Court Mr Laitenberger from the cases where his former employer Directorate General for Competition or Legal Service of European Commission participates as a Defending Party for example in individual actions or competition cases
Are there any provisions regarding independence required from the judges that should normally prevent Judge Laitenberger from considering cases brought against his former employer European Commission as a defendant party?
Hoogveldseweg 1, 5451 AA Mill, Netherlands
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Dear Registry ECJ,
What are the provisions requiring independence of the judge in the cases for which he has compétence ?
Was there any declaration of the Judge Laitenberger who was employed by the European Commission and later he decided in several cases where the European Commission was a party ?
The subject of these cases is the same as the area of activities of the Departments that had employed Judge Laitenberger at European Commission
Here is a list of cases where he decided in cases about provisions governing institutions or competition where European Commission was a party
As he worked at the Commission Legal Services and Directorate General for Competition Judge Laitenberger contributed to the practice of the European Commission that he is now evaluating as a Judge
According to information at Court website Judge Laitenberger is a former employee of European Commission Departments dealing with these subjects
What are the rules at European Court of Justice requiring withdrawal of such a judge ?
Is there anything similar as independence required in national procedures if the Judge is involved in the cases of the party where he is connected? Particularly in a cases of his former employer?
How the Court excluded such a concern in cases of Judge Laitenberger?
Is it required to exclude automatically such a judge and re-open the procedures where he was present although he should be excluded?
Dear Registry ECJ,
Is it compatible with well established case law to allow participation of the Judge Laitenberger in accordance with criteria below? Is it used by your Court as regards its members?
Was there any attempt to withdraw Judge Laitenberger from the cases where his participation and impartiality is open to doubt?
CASE OF PIERSACK v. BELGIUM
8692/79 | Judgment (Merits) | Court (Chamber) | 01/10/1982
30. Whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably under Article 6 § 1 (art. 6-1) of the Convention, be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect.
(a) As regards the first approach, the Court notes that the applicant is pleased to pay tribute to Mr. Van de Walle’s personal impartiality; it does not itself have any cause for doubt on this score and indeed personal impartiality is to be presumed until there is proof to the contrary (see the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 25, § 58).
However, it is not possible to confine oneself to a purely subjective test. In this area, even appearances may be of a certain importance (see the Delcourt judgment of 17 January 1970, Series A no. 11, p. 17, § 31). As the Belgian Court of Cassation observed in its judgment of 21 February 1979 (see paragraph 17 above), any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake is the confidence which the courts must inspire in the public in a democratic society.
(b) It would be going too far to the opposite extreme to maintain that former judicial officers in the public prosecutor’s department were unable to sit on the bench in every case that had been examined initially by that department, even though they had never had to deal with the case themselves. So radical a solution, based on an inflexible and formalistic conception of the unity and indivisibility of the public prosecutor’s department, would erect a virtually impenetrable barrier between that department and the bench. It would lead to an upheaval in the judicial system of several Contracting States where transfers from one of those offices to the other are a frequent occurrence. Above all, the mere fact that a judge was once a member of the public prosecutor’s department is not a reason for fearing that he lacks impartiality; the Court concurs with the Government on this point.
(c) The Belgian Court of Cassation, which took Article 6 § 1 (art. 6-1) into consideration of its own motion, adopted in this case a criterion based on the functions exercised, namely whether the judge had previously intervened "in the case in or on the occasion of the exercise of ... functions as a judicial officer in the public prosecutor’s department". It dismissed Mr. Piersack’s appeal on points of law because the documents before it did not, in its view, show that there had been any such intervention on the part of Mr. Van de Walle in the capacity of senior deputy to the Brussels procureur du Roi, even in some form other than the adoption of a personal standpoint or the taking of a specific step in the process of prosecution or investigation (see paragraph 17 above).
(d) Even when clarified in the manner just mentioned, a criterion of this kind does not fully meet the requirements of Article 6 § 1 (art. 6-1). In order that the courts may inspire in the public the confidence which is indispensable, account must also be taken of questions of internal organisation. If an individual, after holding in the public prosecutor’s department an office whose nature is such that he may have to deal with a given matter in the course of his duties, subsequently sits in the same case as a judge, the public are entitled to fear that he does not offer sufficient guarantees of impartiality.
31. This was what occurred in the present case. In November 1978, Mr. Van de Walle presided over the Brabant Assize Court before which the Indictments Chamber of the Brussels Court of Appeal had remitted the applicant for trial. In that capacity, he enjoyed during the hearings and the deliberations extensive powers to which, moreover, he was led to have recourse, for example the discretionary power conferred by Article 268 of the Judicial Code and the power of deciding, with the other judges, on the guilt of the accused should the jury arrive at a verdict of guilty by no more than a simple majority (see paragraphs 13-14 and 20-21 above).
Yet previously and until November 1977, Mr. Van de Walle had been the head of section B of the Brussels public prosecutor’s department, which was responsible for the prosecution instituted against Mr. Piersack. As the hierarchical superior of the deputies in charge of the file, Mrs. del Carril and then Mr. De Nauw, he had been entitled to revise any written submissions by them to the courts, to discuss with them the approach to be adopted in the case and to give them advice on points of law (see paragraph 19 above). Besides, the information obtained by the Commission and the Court (see paragraphs 9-11 above) tends to confirm that Mr. Van de Walle did in fact play a certain part in the proceedings.
Whether or not Mr. Piersack was, as the Government believe, unaware of all these facts at the relevant time is of little moment. Neither is it necessary to endeavour to gauge the precise extent of the role played by Mr. Van de Walle, by undertaking further enquiries in order to ascertain, for example, whether or not he received the covering note of 4 February 1977 himself and whether or not he discussed this particular case with Mrs. del Carril and Mr. De Nauw. It is sufficient to find that the impartiality of the "tribunal" which had to determine the merits (in the French text: "bien-fondé") of the charge was capable of appearing open to doubt
Dear Registry ECJ,
do you apply similar Articles as in German Civil law regarding the Judge with possible bias:
According to § 578 of the Code of Civil Procedure, a reopening of a final judgment may be made by nullity suit under Article 579 or by an action for a re-trial under Article 580 under the Code of Civil Procedure.
Plea of nullity under Article 579 may be filed:
1. when the court who took the decision was not composed in accordance with law;
2. when a judge, who has been excluded by law from the exercise of the functions of a judge, has taken part in the decision;
3. when a judge has taken part in the decision although he had been challenged on grounds of bias and these grounds have been declared well founded;
4. when the party was not represented in the proceedings in accordance with law, unless it has expressly or tacitly approved of the conduct of the proceedings.
Retrial under Article 580 can take place in the following situations:
1. when the defendant has committed intentional or negligent perjury upon which the judgment is based;
2. when a document on which a judgment was based was false or falsified;
3. when, in regard to testimony or an opinion upon which the judgment is based, a witness or expert has committed a criminal breach of his duty to tell the truth;
4. when a judgment has been obtained by a representative of a party, his adversary or the representative of the adversary by means of a criminal offence committed in relation to the litigation;
5. when a judge who took part in the judgment has committed criminal breach of his official duties in respect of the party in connection with the proceedings concerned;
6. when the judgment of an ordinary court, of a former exceptional court or an administrative court, on which the judgment is based, has been quashed by another final judgment;
7. when a party makes use or is given the possibility to use a previous final judgment which relates to the case, or the party finds another document which would have resulted in a more favourable decision for the party.
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Dear Court of Justice of the European Union,
Please pass this on to the person who reviews confirmatory applications.
I am filing the following confirmatory application with regards to my access to documents request 'Exclusion of the judge'.
I haven't received exact reply to my request
A full history of my request and all correspondence is available on the Internet at this address: http://www.asktheeu.org/en/request/exclu...