1. You had a long and distinguished career working as a judge in both Germany and the European Court of Justice, as well as a law professor in various universities. In your view as an outstanding legal scholar/expert from Europe, what valuable experience in terms of legal development could be drawn from the process of European integration and might be shared with the rest of the world?
The European Union began as a community of six Member States in the fifties of the last century. Now it comprises 27 Member States with half-a-billion people. The legal framework of the European Union has been acceptable to all of them in spite of their great demographic, geographic and economic diversity and their different legal traditions.
A characteristic of this legal framework is that it allows a gradation of measures according to the sensitivity of the matter for the Member States. In the toolkit of the European Union there are e.g. regulations and directives. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. The Treaty on the Functioning of the European Union defines in which areas regulations may be used and in which areas only directives are admitted. In some fields the European Union can only prescribe minimum requirements, in others it can impose harmonization measures which do not allow the Member States to adopt higher standards. Even when a harmonization measure has been adopted by majority vote, the interdiction to maintain or introduce national provisions derogating from the harmonization measure is not absolute. However, the Member States invoking the exceptions permitted under certain restricted circumstances have to abide by a procedure which grants the European Commission a right of control.
Another gradation which reflects different degrees of sensitivity of a matter can be found in the provisions on the number of votes necessary for adopting a legal act. Sometimes unanimity is required, in less sensitive fields not. Over time, the areas in which legal acts can be adopted only unanimously have been reduced more and more.
New ways which amount to a more radical form of gradation were explored when the majority of Member States wanted to further develop the social dimension of the European Union despite British opposition: The Member States of the European Union, except for the UK, signed an agreement on social policy. It was annexed to a protocol on social policy in which the contracting states to the agreement were authorized to have recourse to the institutions, procedures and mechanisms of the EC Treaty for the purposes of taking amongst themselves and applying as far as they were concerned the acts and decisions required for giving effect to the said agreement. This protocol was also signed by the UK. Later on the UK changed its policy in favour of strengthening the social dimension of the European Union. Thus it became possible to integrate the provisions of the agreement on social policy into the EC Treaty and develop them further. The directives which had been adopted on the basis of that agreement were extended to the UK. Nowadays, the EU Treaty comprises a title with provisions on enhanced cooperation which enable a smaller number of Member States to press on with integration provided that certain conditions are satisfied.
Important legal development started with comparatively weak measures which were turned into stronger ones later on. When the EU Treaty was concluded in 1992, the decision-making procedure for the cooperation on asylum and immigration policy, judicial cooperation in civil matters as well as police and judicial cooperation in criminal matters was based on mere intergovernmental cooperation. Nowadays, the EU can adopt legal acts in these fields. Another important example is the Charter of Fundamental Rights of the European Union. It started in 2000 as a mere declaration, solemnly proclaimed, but not signed by the Member States. Finally, the Treaty of Lisbon, which entered into force on 1 December 2009, attributed the same legal value to the Charter as to the EU Treaty and the Treaty on the Functioning of the European Union.
The legal order of the European Union would not be what it is today without the European Court of Justice. The judges of this court elaborated the principal characteristics of the Union legal order, namely its primacy over the laws of the Member States and the direct effect of many of its provisions on both the states themselves and their nationals. They also recognized a number of general principles, among them fundamental human rights. An important mechanism which allowed the European Court of Justice to develop the law is the procedure for preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law.
2.Your co-deanship of CESL that began in 2008 seems to mark a major shift in both your career and personal life. Would you tell us how you made the decision to commit yourself to legal education in China and China-EU legal exchange?
When my term of office at the European Court of Justice ended in autumn 2006, I decided to allow myself a break for the first time in my life. I settled in Hamburg, explored my new surroundings and co-founded a non-profit arts company for the HarbourCity, the new urban district under construction where I had chosen to live. I devoted a lot of time to the activities of this company and enjoyed it very much. As far as law was concerned, I only did some honorary consultancy work for the Europa-Kolleg Hamburg, an institution for post-graduate studies and research.
One day, the director of studies of the Europa-Kolleg informed me that the dean of the Faculty of Law of the University of Hamburg would like to meet me. I thought the dean wanted to explore possibilities to engage me as a professor. The three of us had dinner in a nice restaurant. At that time I already knew that the University of Hamburg was preparing a bid for an EU grant intended for establishing a “Europe-China School of Law”. I asked many questions about that project. To my great surprise, at the end of the dinner, I was asked whether I could imagine becoming the European Co-Dean of that law school. I did not hesitate one second to agree. This was a unique challenge: to help create a new institution with an important mission in a fascinating environment. Soon afterwards, I received a number of very attractive job offers, but I turned them all down.
One major deficit on my side was that I was not familiar with China. But my role was to be the European co-dean, and for that role, I felt well prepared.
3. Based on your knowledge of China, especially your experience over the past three years working in China on legal education and academic exchange, what have you found are the features of Chinese legal culture and in China’s development of legal system?
Unfortunately, my knowledge of Chinese is not sufficiently advanced to read Chinese legal texts. So my access to Chinese law is not a first-hand one. That is why I hesitate to comment on Chinese law. Let me nevertheless give you some impressions which I received from the sources that were accessible to me.
After the Cultural Revolution China faced the enormous task of reconstructing its entire legal system. She accomplished this task with breathtaking speed, and the overall result is impressive. The professional level of the more recent laws at which I had a closer look is high. When I read, e.g., the English version of the new Enterprise Bankruptcy Law of 2006, I thought that it was a very knowledgeable, modern piece of legislation.
It seems that the Chinese legislator makes extensive use of comparative law in order to find out what was a success and what was a failure elsewhere before launching major legislative projects. Sometimes legislation is preceded by regional pilot projects. I like this scientific approach.
I particularly appreciate that already in 1989 China adopted an administrative procedure law which established a judicial review system for administrative cases. In the former German Democratic Republic such a law did not exist. In my CESL environment, I experienced an administrative legal culture that was characterized by great transparency and strict equal treatment.
A criticism which I repeatedly heard is that contradictions within the legal system are a major problem and that the courts cannot efficiently enforce the hierarchy of norms established by the Legislation Law. Another problem frequently mentioned is law enforcement in general. The Financing Agreement between the European Community and the PR China which laid the foundations of the China-EU School of Law, lists shortcomings in the system of law enforcement among the top priorities in strengthening the rule of law in China.
I was delighted when I discovered the fundamental rights in the Chinese Constitution and learnt that, in 2004, the paragraph "The State respects and preserves human rights." was added to the Constitution. However, the prevailing doctrine about the effect of these constitutional rights left me with very mixed feelings. If I understand correctly, the fundamental rights of the Chinese constitution are not directly applicable by courts or by the administration; they can only be indirectly applied through implementing legislation. If that is true the protection afforded by these fundamental rights is rather weak. I know that an experts’ draft of a Human Rights Law was published in 2008. Such a law would be an important step to ensure the justiciability of the fundamental rights of the Chinese Constitution.
Of course my reaction to this problem is a result of my own cultural background. When the European Union created its Charter of Fundamental Rights, there was a discussion about the direct effect of certain provisions of this Charter. Finally a distinction between rights and principles was drawn. According to Article 52(5) of the Charter, the provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by the Union, and by acts of Member States when they are implementing Union law. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality. However, this does not apply to the rights and freedoms enshrined in the Charter. They produce direct affect and can thus be invoked by individuals even in the absence of implementing legislation. Although it is still under discussion to what extent this applies to relations between individuals, the direct effect in relations between individuals and public authorities is beyond doubt.
4. Of the many cooperative legal projects China has established with foreign partners, CESL is very unique as the first and so far the only Sino-foreign law school approved by the Chinese government. How does CESL fulfill its special role in pursuing the overall objective “to support the Chinese Government in its efforts to develop a society based on the rule of law”? What is your vision for the future development of CESL?
The core activities of CESL consist of post-graduate qualification programmes, professional training programmes and research. In each of these three pillars, CESL endeavours to make a contribution to strengthening the rule of law although this is not its only concern.
The exact meaning of the rule of law has been the subject of ample debate in the academic world. I am convinced that not only the European Union but also China subscribed to a “thick” definition of the rule of law, embracing the protection of human rights within its scope. The preamble of the Universal Declaration of Human Rights 1948 described it as “essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”. The China University of Political Science and Law, into which CESL is integrated, highlighted the importance of this declaration by inscribing its complete text on a monument in the midst of its Changping campus.
In the European and International Law Programme of CESL, an entire module with four courses is devoted to the topic “Rule of Law and Human Rights”. However, rule of law and human rights can also be considered as a horizontal feature of other modules because again and again students are confronted with case law of the European Court of Justice implementing various principles which are part of the rule of law. As for CESL’s Chinese Law Programme, it does not only provide the students with the necessary knowledge of Chinese law, but also tries to strengthen their capability to resist eventual incentives to deviate from the rule of law. The Chinese Co-Dean of CESL Fang Liufang himself developed and regularly teaches a course on legal ethics.
The CESL courses for judges and prosecutors frequently touch upon rule of law aspects even if this is not explicitly mentioned in the title of the course. An example is a course on the German criminal procedure code and its reform which CESL held. at the request of the National Judges College. It amounted to a course on the implementation of fundamental rights in German criminal procedure law. When, in courses at the National Prosecutors College, we dealt with the role of prosecutors in a comparative perspective or with evidence in criminal procedure in the EU, of course, fundamental procedural rights played a major role.
We also train for the application of law to complex and contested facts which is an art in itself. A new feature in the training programmes for judges and prosecutors were CESL courses on trial psychology, in particular psychology of witnesses and victims. Their aim is to help avoid mistakes in the assessment of facts. A number of courses for judges and prosecutors provide inspiration for combating certain types of crime by giving successful examples from other countries and showing ways for international cooperation, e.g. courses about fighting organized crime and cybercrime. In courses on mediation, the different roles of judges and mediators were highlighted which hopefully raised the awareness that it is a rule of law problem if a judge, trying to mediate, holds separate talks with the parties and nevertheless acts as the judge deciding the case if the mediation is not successful. As for the lawyers training, one of CESL’s courses deals with the role and function of lawyers under the rule of law.
In the field of research, several CESL research projects examine central aspects of the rule of law like the project “Legal Tranfer and Rule of Law in China” and the project “The Role of the Judge and the Parties in Civil Litigation. Towards an Efficient Procedure under the Rule of Law in China and the EU”.
You also asked about my vision for the future development of CESL: I hope that in future CESL can offer longer periods of studies in Europe to its Chinese students, e.g. for studying elective modules of the European and International Law Programme. At present, only the 30 best students of CESL’s Double Master Programme can go to Europe, and this only for a 2-week summer school. I also hope that the number of long-term Chinese and European professors of CESL will increase considerably. My dream is a separate building for CESL that is as beautiful as that of the China Europe International Business School in Shanghai. Legal personality would probably facilitate a number of things, e.g. fundraising in Europe, but that is only a long-term perspective.
5. In addition to furthering exchange and cooperation in legal education such as the development of CESL, in what other areas and in what ways do you think could China and EU strengthen bilateral legal exchange activities?
So far, development aid was an important platform for legal exchange activities between the EU and China. This tool was used for the EU-China Legal and Judicial Cooperation Programme which ran from 2000 to 2005. It was also used to finance the EU grant which laid the financial foundations for CESL. As a new measure of EU development aid for China, a major project in the field of legal aid is under preparation. However, because of China’s economic success, the days of European development aid for China are numbered. The more important became legal exchange activities implemented without the support of development aid.
We can distinguish several levels of cooperation:
Firstly, cooperation between institutions of China and institutions of the EU. An important example is the cooperation between the Supreme People’s Court of China and the Court of Justice of the European Union (by way of simplification often just called the European Court of Justice). Already in the past, there were meetings between these two courts. In response to an invitation issued by the President of the Supreme People's Court of China, the European Court of Justice carried out its first official visit to the People's Republic of China in March 2005. In October 2008 and in September 2009, delegations from the Supreme People’s Court visited the European Court of Justice. Such exchanges should be continued on a more regular basis. There are a lot of legal problems of common concern, e.g. in the field of competition law.
Secondly, cooperation between institutions of China and institutions of the Member States of the EU. For important Chinese institutions there is not a counterpart at the level of the EU as such but only at the level of the EU Member States. Take the National Prosecutors College of the P.R. of China as an example. They have a longstanding cooperation with the French École Nationale de la Magistrature, the French National School for the Judiciary. Now they are launching cooperation with the Deutsche Richterakademie, the German Judicial Academy, with which the National Judges College of the People’s Republic of China already organized joint training courses. Such activities could be intensified. The director of the German Judicial Academy told me that courses with Chinese colleagues are always considered as a highlight of the training programme by German judges.
Last but not least, cooperation between individuals, in particular researchers, from China and the EU. The China-EU Law Journal, created by CESL, will help to further this cooperation. It provides the academic community, in both China and Europe, with a platform to present innovative research and to stimulate debate on current issues of European Union and Chinese law. I hope that this forum for open and multifaceted legal discussions will be used frequently.
This article appeared in the China Social Sciences Journal. The online version is available in chinese here