The development of the Court of Justice’s tax case law is an example of this kind of development. Melchior Wathelet: “In 1986, the Court condemned restrictive tax measures of the States that conflicted with the principle of free movement, even in the context of the fight against tax fraud. In 1998, based on the same legal texts, it opened the door a little by accepting the adoption of measures that restrict free circulation to combat artificial arrangements aimed at circumventing tax legislation. Since 2000, the Court of Justice, sensitive to their budgetary difficulties, has been giving the States greater and greater leeway in their fight against tax fraud”. And the judges change. “I left the Court in 2003 to return there in 2012. I found myself working with 35 colleagues, only 3 of whom I had sat with before 2003.”

Finally, adherence to the European Convention of Human Rights?

In his conclusions, Melchior Wathelet defends the Court against the insinuations of the Eurosceptics, who accuse the court of fostering the extension of the powers of the European Union rather than monitoring compliance with Member State jurisdiction. He cites several cases in which the Court rejects a broad interpretation of the powers of European institutions. Such was the case in 1996, for example, when it issued an opinion prohibiting community institutions from deciding on the European Community’s accession to the European Convention on Human Rights (ECHR). “In 1993, I was Chairman of the Council of Justice Ministers of the European Union. Many States were in favour of EU accession to this Convention. The English were against it. To move the issue forward, we asked the Court of Justice if the Community institutions could decide on EU accession to the ECHR. It answered in 1996 that it was a “constitutional” matter, which thus required an amendment to the treaties, which is entirely a matter for the States. In the Lisbon Treaty, the States thus included an article stating that the EU would accede to the ECHR.” After the Lisbon Treaty (2009) entered into force, the outcome of negotiations between the member states of the Council of Europe and of the European Union was a draft agreement of the EU accession to the ECHR. In July 2013, the Court of Justice received a new request for an opinion on this accession. The hearing was held in May of this year, the opinion should thus be rendered shortly.

Towards greater efficiency

The Rules of Procedure of the Court were amended in 2012 to improve its efficiency. “In some procedures, if it considers that it has sufficient information, the Court may decide that it will not have a hearing and limit itself to a written procedure to speed up the process, without having to invite lawyers from the 28 Member States to Luxembourg,” Melchior Wathelet explains. From now it will also resort to emergency procedures, for example, if a national judge asks it a question in a case where a person is being detained.”

According to Melchior Wathelet, other reforms will be necessary for improving the Court of Justice, in particular, as regards the tenure of judges. While the judges in charge of applying national law are appointed for life, those appointed to the Court of Justice by their government are only appointed for a term of six years. “To be completely independent, they must be appointed for life since their careers depend to an extent on those who appointed them and who could reappoint them.” In the conclusions to his work, the Advocate General is under no illusion as regards an upcoming development in this regard: “It will probably be a long time before we have judges or advocates general with life appointments to the Court of Justice of the European Union (…).Internationally, there has always been a desire on the part of the States to keep a certain control over the international judges through limitations on the term of their appointment.”