Olivier Jacot-Guillarmod, Le Juge national face au droit européen, Perspective Suisse et communautaire, excerpt : Chapitre 1, Introduction p. 23-32, Frankfurt, Bruselles, 1993
E_2.22_GUILLARMOD_Le Juge Suisse
[The judge facing European law, from a Swiss and European perspective]
a) Background
The text at hand is an introduction to a book, Le Juge national face au droit européen, Perspective Suisse et Communautaire. Olivier Jacot-Guillarmod uses a broad view as to what European law is; he pleads for the unity of European law. He advises Swiss lawyers not to limit their interests to EU law, but to include the Council of Europe; The European Convention on Human Rights; the treaty on EFTA area of free trade and various bilateral agreements with later member states of the EU such as Hungary, Poland and Czechoslovakia.
The book was a wakeup call following the negative vote of December 1992 on the accession to the EEA-agreement in 1992 under the motto after Denis de Rougemont “Les Suisses se lèvent tôt, mais se réveillent tard” (Swiss get up early but wake up late). It offers then the most extensive analysis of the case law of Swiss courts and the European Court of Justice relating to Swiss EU relations and beyond. Jacot-Guillarmot uses a personalistic approach and writes about Swiss judges as legal actors in Switzerland’s situation vis-à-vis the European Union, as well about the key complementary role of the attorneys, with a focus on the public role of those key legal professionals in the process of Europeanization.
Judges and attorneys are legal actors whose functions have an institutional nature and go beyond simply applying legal provisions. These functions cannot be understood without an understanding of the professional cultures; the specific roles of the judges in a national concept of separation of power; the specific organisation of the concept of separation of powers and the role of the judiciary; the potential closeness of the activities of the judges to the political process as well as issues of psychology of the activity of the judges. Jacot-Guillarmot’s text shows that an analysis beyond simply focusing on strictly legal aspects is necessary and requires the taking into account of other factors of national legal cultures. The text is an early example of the use of a personalistic conception to describe and understand the legal processes of internationalization, such as Europeanization.
Olivier Jacquot-Guillarmod was an emiment international lawyer in Switzerland who sadly died at the age of fifty one. He wrote a seminal doctoral thesis in 1979, “Droit communautaire et droit international public,” had an international education in Europe and in the United States and held an important function at the Federal Office of Justice, responsible for international affairs. At the same time, he was teaching at the University of Neuchâtel and represented Switzerland form 1981 to 1995 as agent of the Swiss Government in front of the Commission and the Court of Human Rights in Strasbourg. Jacot-Guillarmod frequently organised conferences and was writing and publishing texts. From 1995 to 2001, he was an elected Justice at the Federal Tribune in Lausanne..
b) Summary
In the first part of the text, Olivier Jacot-Guillarmod addresses the function of the judge vis-à-vis European integration. Swiss people having only shown discrete enthusiasm vis-à-vis the European integration, in spite of the fact that it all took place in front of its doors and that Switzerland is a direct beneficiary of the dynamics of peace resulting from European integration. The formidable opening on the part of the Federal Council, the cantonal governments, the Federal parliaments and the Federal and cantonal administration of a visionary approach to the EU discontinued, in particular after the vote of the 6th December 1992. Switzerland could breathe again and go back to its long “someille du juste.” Jacot-Guillarmot notes, that the judge was the great absentee in the debate on the EEA agreement, since he was not a negotiator, a parliamentarian or a politician. According to the author, it is high time for a first sketch of what the Swiss judge may expect in the next ten years faced with the dynamics of European integration. The course of the legal reality of the European integration and of the European Convention on Human Rights developed, contrary to traditional expectations in Switzerland.
In the member states it was the old and traditional activity of the national judges that brought EU law to life. While the national judge deals with the matters brought before him, the attorney, the representative of the interests of his clients, has an equally key role in the processes of European integration. At that time, there only existed a small number of specialists in European law working as attorneys in Switzerland, as “practician communautaire”. He notes a considerable discrepancy of knowledge at the time, when the text was written, between Swiss and Brussels based EC law specialists. Jacot-Guillarmod argues, that the attorney should be able to bring to the table commensurate knowledge and experience in matters of European integration. In this sense, Jacot-Guillarmod’s introduction to his book is the wake-up call that, in any country – whatever the relationship it has to the European Union – the legal substance and the life of the law is marked by judges and the attorneys, who are the key actors and have an institutional and public function in this process of realization of law.