12 and 13 April 2018 - REJus training workshop for judges on effective remedies in Dutch consumer law

On 12 and 13 April 2018, a training workshop for Dutch judges will be organised in Amsterdam on the topic of 'EU fundamental rights and effective remedies in Dutch consumer law'.

The workshop is organised in the framework of the project Roadmap to European effective Justice (REJus), a transnational judicial training project coordinated by Prof. Fabrizio Cafaggi and Prof. Paola Iamicelli.

During the workshop a number of presentations will be given on topical issues in consumer law protection in civil courts. Furthermore, participating judges will get the opportunity to exchange experiences in the discussion of specific case patterns.

More information is available (in Dutch) on our website.

Opinion on climate change damage litigation in newspaper Trouw

Today, Laura Burgers published an opinion on litigation on climate change damages against corporations in the Dutch newspaper Trouw. Although litigation is unlikely to solve the problem of climate change, litigation against corporations may further the democratic debate. 

A possible action might concern the obligation of corporations to reduce greenhouse gasses emissions, such as promoted by the Principles on Climate Change Obligations for Entreprises. Yet actions for damages could be of importance as well. Litigation by activists stimulates society-wide deliberations, and the issue of damages is to be widely discussed: everybody is to some extent responsible for climate change and its ensuing damages, but which polluter pays for what exactly?

See: Met een rechtszaak krijg je het klimaat op de agenda 

Article on activism through judicial procedures in 'Wijsgerig Perspectief'

Together with her friend Tamar de Waal, Laura Burgers published an article in the Dutch philosophy magazine Wijsgerig Perspectief on activism through judicial procedures. The article is both a theoretical investigation into the emancipatory potential of constitutional states and offers a more practical action perspective for activists who want to use judicial procedures to attain their goals.

With the aid of theory by Claude Lefort and Jürgen Habermas, the article shows that constitutional states can be a source of emancipation, but that judges generally have to stay within the boundaries of democratically determined laws and principles. Judges have space to go against majority decisions only when fundamental rights are at stake. However, since these fundamental rights typically are human rights, environmental interests may lack judicial protection. For activists, it may still be wise to begin judicial procedures, because even when the procedure is lost, the mere media attention for the case may influence society-wide democratic deliberations and, after time passes, this might open up space for the judiciary to take into account more interests than it could before.

Laura Burgers & Tamar de Waal 'Activisme via de rechter' 57 Wijsgerig Perspectief  4 (2017) pp 25-33

Anthropocentrism in European Private Law and the Case of Ben Nevis

It is a truth universally acknowledged that a constitutional state in possession of democratic institutions must have been made by humans. Law more generally is a human construction. Law is considered by some to be even problematically anthropocentric, that is, it would be overtly focused at human interests and thereby neglect the interests of animals and other forms of life on the planet.[1] Yet, in national legal systems across the globe, more and more natural entities get assigned legal personality: rivers, woods, mountains, even Mother Earth herself. This fascinating movement has entered the sphere of European private law, now the Scottish Muir Trust Foundation considers to endow its property, the mountain Ben Nevis, with legal personality.[2] Key questions here are whether such a move would diminish anthropocentrism in the law and whether it would lead to better environmental protection.

Anthropocentrism

Many agree that the legitimacy of democratic laws follows from the idea that all those who have to abide by it have a voice in its construction.[3] This is very close to the principle of all affected interests, stipulating that all interests touched upon by a certain law should be considered in the process of law-making.[4] Yet those who have a voice in the law-making process typically are human beings, mostly inclined to defend human interests, which can lead to the problem of the law to be anthropocentric. The results are clear: Even though international consensus exists on the necessity to act upon - for instance - climate change, governments find great difficulties to implement environmental measures. In the world of today, many species are endangered or actually die out, rivers are polluted and entire islands disappear below sea level. Human wealth and technology thrive more than ever.

Legal personality

‘Legal personality’ is a status the law can assign to an entity; it refers to the ability to bear legal rights and duties and to defend those in court. Interestingly, legal systems do consider not only human beings to be legal persons, but also corporations and institutions such as municipalities, States, or churches. Animals or other natural entities normally have no legal status – for the law, they are mere ‘things’. This is to say that people may have responsibilities towards them, but normally these natural entities cannot defend their rights in court rooms, let alone articulate their voice, or vote in the political process.

Legal personality for natural entities

Yet in 2008, Ecuador was the first country on the world to include in its constitution rights of nature, or Pachamama. Furthermore, in 2010, Bolivia proclaimed its Ley de Derechos de la Madre Tierra (the law of the rights of Mother Earth) – making the Earth a legal person in the Bolivian legal system. In Argentina, a similar proposal is made. Last summer, in Columbia and India, courts recognized certain rivers to have legal personality;[5] in New Zealand, the same was done by legislation for a river and a forest.

Environmental protection

In India and New Zealand, the reasons for endowing these rivers with legal personality were mostly religious – people in these countries consider the rivers to be divine entities. The Bolivian, Columbian and Ecuadorian moves, in contrast, were inspired by more environmental reasons. The Scottisch Muir Trust Foundation is ‘a conservation charity dedicated to protecting and enhancing wild places in the UK’.[6] Its reasons for giving the Ben Nevis – the highest mountain in the UK – the status of a legal person is purely environmental: nature and wild life should be protected. Lawyers working for the Muir Trust Foundation call themselves ‘wild lawyers’.

Balancing rights in private law

The question now becomes, of course, whether endowing a natural entity with legal personality indeed leads to better environmental protection. To be a legal person and thus, to be able to defend one’s rights in court, does not automatically mean one’s interests prevail in a private law conflict. On the contrary, in private law, rights and interests of two parties are typically balanced against each other. Outcomes can be compromises or an outright loss for one party. Imagine some corporation (= a legal person) would litigate about its factory, situated close to the legal person the Ben Nevis. The interests of this hypothetical factory could very well win against the interests of the mountain in private law litigation. Therefore, possibly stronger environmental protection could be obtained if governments simply declared natural entities to be national parks, or official ‘wild life areas’ that merit absolute protection against industrial interests.

Power of private law and the role of judges

For that last option, however, governments have to be willing to do so, whereas the core of problem ‘democratic laws are anthropocentric’ is precisely that environmental measures prove to be unpopular. The force of private law, now, is its bottom-up nature: a private foundation, such as Muir Trust, can decide to transform its property, a mountain, into a legal person. Judges have a particularly important role to play here, for it is for them to either acknowledge this legal personality and allow the natural entity standing in court, or dismiss the whole construction as ridiculous.

Judges for Utopia

Judges applying European private law should not be too proud, nor too prejudiced towards legal personality for natural entities. Certainly, legal personality is a mere legal status - a fiction, so to say - which does not lead to any better environmental protection as such. In this vein, Nick Mount remarked about the Columbian river with legal personality: “The Atrato River in general, and Rio Quito in particular, serve as a stark reminder that awarding environmental rights is not the same as realising them.”[7] Yet we should not forget the symbolic power of fiction that may lead us closer to a Utopia in the positive sense of the word. In political philosophy, calls are made to include animal voices in the democratic process,[8] or even ‘things’.[9] The rivers with legal personality and the Ben Nevis cannot vote for the elections (nor corporations, nor churches, for that matter). Yet to consider not only humans and their corporations, but also natural entities to be persons, legally speaking, might be a first step to turn the anthropocentric tide of our legal system.

---

[1] Cf eg Stephen M. Gardiner Debating Climate Ethics Oxford University Press (Oxford: 2016), pp 32-37

[2] See https://www.johnmuirtrust.org/assets/000/002/678/John_Muir_Trust_Journal_63_Autumn_2017_original.pdf?1508494702 and also https://www.ukela.org/content/page/6379/ben%20nevis.pdf

[3] Cf eg Jürgen Habermas Faktizität und Geltung; Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats Suhrkamp Verlag (Frankfurt: 1998), p 14

[4] Robert Goodin explains very clear why this principle reflects the essence of democracy in his ‘Enfranchising All Affected Interests, and Its Alternatives’ 35 Philosophy & Public Affairs 1 (2016), pp 40-68

[5] In India, this order is however stayed by the Supreme Court – we have to await how this is eventually going to be decided.

[6] https://www.johnmuirtrust.org/

[7] Nick Mount ‘Can a river have legal rights? I visited the jungles of Colombia to find out’ The Conversation 6 October 2017

[8] Sue Donaldson & Will Kymlicka Zoopolis, a Political Theory of Animal Rights Oxford University Press (Oxford: 2011); Eva Meijer Political Animal Voices PhD Thesis Univeristy of Amsterdam (Amsterdam: 2017), accessible through  https://pure.uva.nl/ws/files/15946241/Thesis.pdf

[9] Bruno Latour has called for a ‘parliament of things’ to be established in We have never been modern Harvard Univeristy Press (Harvard: 1993) pp 142-145 and, later, again in Facing Gaia Polity Press (Cambridge: 2017). In 2015, students set up a parliament of things to negotiate a new climate agreement at the same time as the conference of the parties of the United Nations Framework Convention on Climate Change, the latter of which resulted in the Paris Agreement, which is celebrated for its ambition. It turned out that the students, amongst whom not only representatives of countries, but also of, for instance, oceans, were included, came up with an even more ambitious agreement. This enormous experiment was caught by David Bornstein in the movie Making it Work, which can be watched online for free. For further artistic experiments with this idea, see also

https://www.youtube.com/watch?v=oxG0ZWNpe1s

Metamorphosis? Article 47 EUCFR in UCTD cases

In the latest issue of the Journal of European Consumer and Market Law (EuCML), an article has been published by Anna van Duin on the role of Article 47 of the EU Charter of Fundamental Rights in cases concerning national remedies and procedures under the Unfair Contract Terms Directive. The paper has been selected as one of the three Best Publications by Young Researchers at the Law Faculty of the University of Amsterdam in 2016-2017.

The tale of Article 47 of the EU Charter of Fundamental Rights appears to be one of transformation and seduction. While the importance of the right to effective judicial protection is widely acknowledged, there is confusion and even controversy about its actual implications for national civil courts. This article revolves around the question how and why Article 47 may be referred to in European private law adjudication. It aims to shed light on the main characteristics and constraints of Article 47 by analysing the case law of the CJEU concerning national remedies and procedures under Directive 93/13/EEC. Four key judgments of the CJEU are discussed. So far, the CJEU seems reluctant to accept the potential of Article 47 Charter as a weighty source for interpreting national law, let alone for setting it aside or filling gaps in the enforcement and protection of EU rights at the national level. Yet Article 47 could shift the focus from the effective enforcement of EU law towards individual rights protection. As such, it may provide a valuable instrument for national civil courts in cases covering (aspects of) EU law.

A proof-version of the paper can be found here. For citation and research purposes, please refer to the final version published in EuCML.

Judicial law-making in a changing European legal order

Workshop 'Judges in Utopia', Amsterdam 28-29 September 2017
Report by Timo Zandstra (student assistant)

Theory and practice suggest that the European judiciary increasingly takes on a more active role when deciding on cases in which different norms conflict. The courts are increasingly called upon to balance different values and to reconcile conflicting interests, such as balancing public interests in private relationships, as in Urgenda (2015) and CJEU Aziz (2013). Such delicate balancing necessarily comprises legal-political and institutional dimensions, and the court’s value-judgements as such invariably yield political implications. At present, a continuing ‘Europeanisation’ of private law extends this judicial balancing to the interplay of national and supranational rules in the multi-layered order of the EU, involving diverging ideas of justice and principles of law at the interface of EU and national private laws. Such hard cases may provoke innovative case law, sometimes attracting the label of ‘judicial activism’. How can we explain such rulings? How do we assess their democratic legitimacy? And, ultimately, what should the role of the judiciary be when reconciling conflicting interests at the interface of EU and national private laws? The workshop of 28-29 September facilitated dialogue between leading academics and legal practitioners on these questions (click here for the programme).

Contributions came from inter alia Jaap Spier and Luc Lavreysen, who argued that the judiciary should take on a more active role in solving global issues such as climate change in order to compensate political inertia. Moreover, CJEU Advocate General Maciej Szpunar elaborated on the tension between the case law of the Court and the procedural autonomy of the Member States, whilst Laura Burgers proposed a democratic legitimation of the Urgenda decision from Habermasian democratic theory. Oliver Gerstenberg, Chantal Mak, Micheal Dowdle and Dorota Leczykiewicz presented their work on the ideas of justice underlying the construction of a European polity and the potential of Fundamental Rights to serve as standards in judicial deliberations.

Furthermore, Fabrizio Cafaggi and Anna van Duin presented on the eminent role of courts in the interpretation and application of, and the development of (national) remedies and procedures based on, the fundamental right to effective legal protection – in particular under EU consumer law. Cafaggi spoke of the interaction between private and administrative enforcement; Van Duin presented on the role of article 47 ECFR in the case law of the CJEU on unfair terms. Spanish judge José Maria Fernández Seijo emphasised the search for justice in finding solutions for ‘real-life’ problems; Aida Torres Perez expanded on the narrative of judicial mobilisation in the case of housing rights in Spain. And finally, Aurelia Colombi Ciacchi expanded the debate to the level of judicial governance, expanding on different models across the EU member-states.

Just as the case law will evolve and develop, so will the questions discussed during the workshop increasingly be coming back to the national and European judiciary. The debate is blooming and, in the face of rising Euroscepticism and pan-European challenges, perhaps more relevant than ever: the shared search for justice binds the European polity - people and judiciary alike.

Opinion on Milieudefensie case in newspaper NRC

The Dutch newspaper NRC Handelsblad published an opinion article written by Laura Burgers, arguing that the judge rendered a democratically legitimate judgment in the Milieudefensie case that was already discussed at this blogpost.

See: Stop behalve luchtvervuiling ook debatvervuiling.