"We are getting all these VAT cases from government,” said our clerk. “Would you like to do one?” I had never done tax, let alone VAT. I had to be persuaded. One hour before the hearing, my opponent, a VAT Silk, sent me a list of 30 ECJ authorities. Irritated, I rushed around, got them photocopied and read the headnotes. They turned out to be irrelevant. We won, and I rather enjoyed it. So I did more.’ Christopher Vajda, the UK judge on the European Court of Justice, reflects on the start of his journey towards joining the ECJ 20 years later in 2012.
‘At first my main area was EU competition law, mainly for the private sector. I had a good run of cases, including ones on Sunday trading restrictions, which raised the issue of freedom of movement of goods; also cases on the Common Fisheries Policy. The VAT cases furthered my EU profile. I started doing a lot of cross-examination in the VAT tribunal and enjoyed it.
‘After taking Silk in 1997, I had a call from the Customs department. They had just started considering how to challenge VAT avoidance schemes under the emerging ‘abuse of rights’ doctrine from the ECJ. Many of the schemes were devised by the big accountancy firms. One such scheme, which was adopted by almost all major UK retailers, sought to treat a supply of goods as being a partially VAT-exempt supply of financial services.’
In that case Christopher was cross-examining a senior manager of Debenhams, one of the retailers that had adopted the scheme. ‘Their scheme was called internally “PITA”. Even after discovery we couldn’t find out what PITA stood for. At the end of my cross-examination, by which time I had established the artificial nature of the scheme, I asked, ‘By the way, could you just tell us what PITA means?’ The response came back ‘Pain in the A**e’. That said it all. ‘No further questions.’ ‘Another case, Halifax, was referred to the ECJ by the VAT Tribunal and we won a major victory for HM Revenue & Customs as we persuaded the ECJ to accept that the abuse principle applied to VAT.’
Christopher’s most important EU case was ‘the Factortame case’, which raised major constitutional issues and led to three separate references to the ECJ. In the first reference the ECJ held that a national court had the power to suspend an Act of Parliament that might be in breach of EU law. The case ended with Spanish fishermen obtaining damages for the UK’s illegal restrictions on their right to fish in UK waters. ‘I spent 15 years of my career on it up to 2001. I was in all three references, each time being led by one of the Law Officers.’
With the support of his Hungarian father and German mother – ‘who wanted me to do interesting things’ – he was educated at Winchester – ‘I found classics hard but I stuck with it’ – and then Corpus Christi College, Cambridge. ‘We had no legal connections in the family but I opted for law and it didn’t disappoint.’ Why the Bar? ‘I didn’t enjoy my summer vacation experience at a large City firm. Then Gray’s Inn friends from Cambridge took me to dinner in Gray’s Inn Hall. I saw a moot and thought that’s for me! My plan on graduating was for postgraduate studies in America. But Professor Hamson, the Emeritus Professor of Comparative Law at Cambridge advised me: ‘Go where the future is: Europe.’ He recommended me for a scholarship at the Université Libre de Bruxelles, a course in EU law, all in French. This was career-changing. It led me to consider specialising in EU law, even though it was still in its infancy.’ Conversations with EU giants Jeremy Lever QC and Christopher Bellamy led to pupillage at Gray’s Inn Chambers (now Monckton).
His first-six in those Chambers were spent with a common law barrister. ‘The first case was a murder at the Old Bailey. My pupil master was being led by a Silk. They were representing a wife charged with murdering her violent husband with a shotgun over Sunday lunch in front of the children. I was spellbound by our Silk’s closing address. It was nothing to do with the law. The wife was acquitted. It was an eye-opener, showing me the power of advocacy.’
Over 30 years later Christopher was interviewed for the ECJ job by a high-powered panel in a grand room in the Foreign Office. ‘I felt I had the right skill-set; I had done about a hundred cases before the court, both for and against the government and indeed against other bodies. The big thing for me was, and is, the quality of the reasoning in ECJ judgments. The party who wins may not be too bothered, but I try to ensure that the reasoning can be understood by the loser as well as the national judges who have to apply our judgment. I’ve loved the job from my first case.
‘On arrival as a judge at the ECJ it soon became apparent to me that I had no idea of how the court operated internally or of the volume of cases – about 700 a year – for which it has no filter system. Each of the 28 judges of the ECJ is allocated a share of those cases as Reporting Judge. In that capacity one produces a preliminary report of the case, in French, which is the internal working language of the court. I do about 30 of these a year. I set out the legislation in the case, summarise the written arguments of the parties and give my view on how it should be handled: what size formation should it go to, should there be an Opinion of an Advocate General, and should there be a hearing. Each case is also assigned an Advocate General who provides his or her input to the preliminary report. Every preliminary report is circulated amongst all members of the court. We all meet together every Tuesday, when any member of the court can query the proposed approach in the preliminary report. There will then be a full discussion and a different view on the handling of the case might be reached than that proposed in the preliminary report. The Reporting Judge then stays with the case throughout. The court can sit in formations of three judges or five, a Grand Chamber of 15 or the General Assembly of all 28. Obviously the more important the case, the bigger the composition. General Assemblies are rare – only four in my six years on the court.’
The larger the formation the more likely there is to be an oral hearing. ‘There’s no right to an oral hearing – only if it would add value. If we can write the judgment after the written pleadings, there is no point in having one. At oral hearings the parties normally get 15 minutes to present their cases. This works. I’ve never been in a hearing where I felt the parties had too little time or where there weren’t any questions asked.’
It is the Reporting Judge who prepares the draft judgment. ‘Where there is an Advocate General’s Opinion, he or she awaits the Opinion. The formation then decides whether to follow the Opinion in whole or in part, or indeed not at all. Reporting Judges may therefore have to write judgments with which they disagree. A draft judgment is then prepared and distributed to the other members of the formation, who have a fixed time period (generally two weeks) in which to produce comments and/or amendments. It is then the task of the Reporting Judge to produce a revised draft, taking into account the comments and/or proposed amendments of the other judges. That revised draft will form the basis of an oral délibéré at which only the judges in the formation are present. Depending on the case the draft can be discussed word by word and line by line for anywhere between ten minutes and three or four hours. The Reporting Judge keeps a note of all agreed amendments, and then produces the final version which is sent to be translated into all EU languages to be ready for handing down. I sign about 135 judgments a year, including my thirty-odd as Reporting Judge.’
Christopher’s fellow judges ‘all come from different backgrounds. Some are former judges in their national legal system, some are former lawyers, some are from an academic background, and some are former high-ranking civil servants. There is, I think, greater diversity in the background of ECJ judges than in the Court of Appeal and Supreme Court.’
How does the UK come across? ‘The Bar appears for the UK government and gives superb representation. They are listened to by the court. The influence of the UK Bar is significant, not just in terms of substantive argument but also in the ability to deal with questions from the Bench.’
Advice to those starting out? ‘Always keep an open mind. I have changed my mind about cases, including as a judge, even after the hearing. See advocacy in terms of both oral and written argument. Identify the key points at all stages and concentrate on them. Present your case attractively. Judges are not meant to be juries but we are all human. Where you have points of sympathy or merit, don’t overdo it, but avoid a dry presentation. Help the judges: provide a route map of how the case should be decided.’
What next for experienced senior judge Christopher in these Brexit times? ‘At the time of speaking it is pointless to speculate beyond that fact that the current Draft Withdrawal Treaty provides that from 29 March 2019 I will cease to be a judge of the ECJ,’ he says. His immediate concern is for the future of the staff working for him in his chambers.
Anthony Inglese was head of legal in five Government Legal Departments over a 38-year career. A Bencher of Gray’s Inn, he now trains and mentors lawyers