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The IBA’s response to the war in Ukraine
Akima Paul Lambert
Litigation Committee Newsletter Editor; Hogan Lovells, London
Christopher Vadja KC was the UK judge at the Court of Justice of the European Union (CJEU) from 2012 until the withdrawal of the UK from the EU in January 2020 when his mandate ceased. During that time, he was party to judgments in a broad spectrum of fields, including banking, competition and state aid, data protection and privacy, energy, environment, private and public international law, public procurement, sanctions, tax, trade and investment protection agreements, and transport.
Akima Paul Lambert (APL): Christopher, it appears that from now on you will be known as ‘Christopher Vadja, the last judge of the United Kingdom and Northern Ireland at the CJEU until the withdrawal of the United Kingdom from the European Union’. How does that feel being part of your legacy? What feelings does that evoke?
CV: It is an important part of my legacy. I am proud of it. I had the privilege of sitting on world’s largest multinational court for several years. I got to know the thought processes of lawyers from 27 other jurisdictions. Before that, I had been a QC practicing in London for many years which I enjoyed very much, and I was also a part-time recorder in crime. The experience of being a judge was a completely different experience and I found it to be very rewarding. It also gave me a different perspective on how to – and more crucially, how not to – present cases before a court. I also hope that I left my mark on the judgments of the court to which I was party.
APL: You tell us that you learnt how judges from 27 different jurisdictions think. Do they in fact think differently? If so, what struck you as particularly different?
CV: The backgrounds of the judges in the CJEU were very diverse. I came from a traditional English background. By the time I got to the General Court, I had been a practitioner for 30 years. I did a bit of teaching and a bit of writing, but I was not an academic. The CJEU is largely comprised of people who do not have my profile: I was somewhat of a minority. Many were career judges, others had been in the civil service for some time and quite a number of others were academics. This resulted in a great mix of people in terms of background. A number of my colleagues also came from Central or Eastern Europe, and had experienced some of their professional life under a Communist regime, so they had very strong and particular views on certain subjects. It was a very diverse court, much more diverse than any English court.
APL: What are the lessons we can learn here in the UK from that approach? We have seen some changes made by the judiciary in terms of diversity, but are there any particular changes or initiatives you think should be adopted or replicated here in England and Wales, in our jurisdiction?
CV: My own view is that yes, we should ensure that the UK judiciary is formed by persons from diverse backgrounds, but always being careful to maintain the quality and independence of the judiciary. One thing that struck me whilst practising abroad was how well-regarded English judges are around the globe. What is critical in being a good judge is the ability to be wholly independent, and to be able to listen to arguments and understand why arguments are being made. There are no good reasons why professors and academics, say, should not have that skill. However, everything depends on context and the character of the individual in question. Certain skills are very important. You can’t be somebody who agonises: you must be able to make a fair and right decision, quickly. You have got to be productive and efficient.
APL: You have made it clear that you had such an enjoyable time. What has been your career highlight?
CV: That was a case I did for the government which lasted about 10 years. That was one of my highlights at the Bar. While at the CJEU, we had a whole range of extremely interesting cases. Privacy became a very big issue and the EU now has the General Data Protection Regulation (GDPR). It is fair to say that, during my time at the court, it developed a lot of case law on privacy which was an entirely new area of EU law. It was very interesting. One of the cases I sat in involved Google: the question was whether the GDPR had extraterritorial effect (the GDPR itself was silent on the question). I confess that I had very little knowledge of public international law before I went to the court, but this case brought me up to speed.
I was also privileged to work on a number of very high-profile international cases. For instance, there was a case involving a reference from the High Court in England about fishing off the coast of Western Sahara because Morocco had claimed sovereignty over the space. The CJEU had to decide whether that was compatible with international law.
I was involved in a number of sanctions cases (before the Ukraine war) in relation to Iran and in respect of the nuclear program in Iraq.
I also worked on a vast number of constitutional and competition cases. It could be said that we created a code as to how Article 102 should be applied.
Overall, I enjoyed the huge diversity of subject matter. For example, at the Bar I had never done an asylum case, but I ended up doing quite a few of these at the CJEU.
APL: So, lots of highlights. Are there any particular lowlights?
CV: No, nothing that I regret at all. Like all large organisations, there are some things which one could afford to change. The difficulty with the CJEU is that to change or approve things was not easy and took a long time. For big changes, one needed to involve the Council of Ministers. In that sense, the court was a bit like a supertanker.
Overall, however, it was a fantastic experience – particularly given how serendipitous my appointment was. I was rung up and informed that I was the unanimous choice for the role and that my name was going to be proposed to the Prime Minister. The Foreign Office official who called me said he understood that it was a big deal and invited me to sleep on it for 48 hours. I tried to take the time allocated but I was unsuccessful at sleeping on it. I rang them the very next morning and said of course I would. That decision has enriched my life in so many ways, not just legally.
APL: And what are some of those ways?
CV: One of the things I very much enjoyed was the court’s programme of dialogue with the national member courts. There was also lots of informal dialogue, ie meeting with judges from other Member States; as my predecessor very neatly put it, those were to discuss where the shoe pinches (in other words, whether there were judgments of the CJEU that hadn’t gone down very well!).
I also very much enjoyed judicial visits. We visited a number of different jurisdictions. I also enjoyed the speeches I was asked to give. The CJEU was constantly being asked to provide speakers at events. I spoke on two occasions in Hong Kong, before the national security law was introduced. What struck me was the huge interest in EU law in Hong Kong, particularly on the GDPR and privacy. I gave talks in the Middle East, in the US and the Member States. That was a very nice part of the job.
APL: Are there any particular persons that influenced your trajectory? Any mentors who helped you along the way?
CV: When I was at Cambridge, I decided I wanted to become a barrister so I changed subject. I also wanted to do a postgraduate year studying abroad. My focus was on going to America and I could see that there were various generous scholarships that existed. I went to see a professor at Cambridge called Jack Hanson (he wrote a lot in the 1950s on French administrative law). He was on the board of a scholarship committee ran from Brussels. He told me it was an extremely generous scholarship. The course was in French. He sold me on that. I then talked to one or two people older than me who had done the course and who spoke highly of it. I decided to apply and got the scholarship.
This brings me then to my second mentor. When I was in Brussels, I met the man who had the most influence over my professional life, Jeremy Leaver QC. He was the leading UK competition lawyer at the time and he had decided to move to Brussels and to set up chambers in Brussels to practise EU law. To cut a long story short, Jeremy became almost a father figure to me and was instrumental in getting me pupillage. A few years later, I told Jeremy I wanted to move back to London. By that stage, I had developed quite a practice in EU law. I later joined Monckton Chambers and I remember doing cases with Jeremy and sitting around the table with him. I would produce a draft of a document, and he would sit to review it and my draft would be changed completely, but it was just such a revelation to work with him. He always put things in a great way. I continued working with him on cases until I myself took Silk. He was probably the greatest singular influence on my career.
APL: I love hearing your stories. I think mentorship has a profound effect on how we get on in our respective careers.
Turning to more prosaic matters, what has English jurisprudence lost by leaving the European Union?
CV: I hope we have not lost too much. The CJEU gives about 800 judgments a year and admittedly, a lot of them are bread-and-butter judgments on the interpretation of statutes and statutory instruments, which may be of increasingly less relevance to the UK. On the other hand, what the CJEU has done over the years, is develop general principles of law. Many cases deal with issues of proportionality for instance, and there are distinctly European concepts that have now been embedded in English law.
However, one of the great strengths of the common law system was the ability to extract the best out of other judicial systems and effectively incorporate those aspects into English law. I have no doubt that the higher English courts will still look at judgments of the CJEU in the future.
APL: Will English lawyers still be European lawyers? I studied in France and it was great to be exposed to the continental legal system. Is that opportunity still there in a real way?
CV: As you know, English lawyers who wish to plead before the European courts will have to be called to the bar of another Member State. There are a number of practitioners who have already done that. To get such a qualification involves some investment. I think it will be up to individuals as to how pursue that. But admittedly, there may not now be the same interest in becoming European lawyers in the broader sense.
APL: To conclude, what does the future hold for competition law in particular – here in the UK, post-Brexit? Antitrust litigation cases are still on the increase, is this likely to continue?
CV: Competition law, in my view, is one of the areas there will be no change. Domestic competition law is modelled on EU competition law and I do not think there is a big appetite to fundamentally change that. I think that the explosion of competition law cases and antitrust litigation is a great testament to the legislative changes Parliament has introduced and to the fantastically vibrant legal industry that one has in the United Kingdom. The United Kingdom will not abolish competition law nor change it fundamentally.
APL: What were some of the points of litigation practice we can take from the European court?
CV: Possibly the lesson in relation to the right to an oral hearing. There is no automatic right to an oral hearing in Luxembourg. However, in about 80 per cent of the cases, we did have oral hearings. The question that was often put was this: is an oral hearing going to add value? This was the test. For oral hearings where I was the reporting judge, I would always ask the parties, before the hearing, to concentrate on specific issues and questions.
The other thing that was different from English courts was the premium placed on time. In the CJEU there were fixed time limits which worked well to focus the mind on the case. In my experience, the time limits worked quite well provided you were on top of the case. I think the system worked well and I can’t say there was ever a case where I thought it was a pity that the oral hearing had not been longer. I should say, in the CJEU, we were essentially not hearing arguments of fact and were just a court of law. Where there are facts, one might need a longer oral hearing.