Reconsidering the principle of separation of powers: judicial networking and institutional balance in the process of European integration.
In the last years, the notion of "network" has catalyzed the attention of scholars seeking to find new interpretive tools to describe the current transformation of law under the integrative processes that are taking place at international and supranational level. Some legal theorists are even seeking to substitute the pyramidal model of legal system inspired by Hans Kelsen with a competing model based on the plurality of legal systems interrelated in a network. (2) Policy networks operating in the context of the European Union and networks of administrations that connect the EU Commission and member State authorities are object of various scholarly works. (3)
In this article I try to apply the concept of "networking" to the instruments and institutions of judicial cooperation in Europe, within the framework of Council of Europe activities and EU policies aimed at the creation of an Area of freedom, security and justice (henceforth: AFSJ).
In the AFSJ, in particular, the importance of a process of rethinking and improvement of traditional ways of judicial cooperation is growing. (4) This is true after the introduction of the EU Arrest Warrant, a mechanism nearly exclusively managed by judicial authorities (the one that issues the warrant and the other that assures its execution). The future, however, might even move towards the establishment of a EU prosecution authority, with jurisdiction initially limited to the financial interests of the Union, but, in the long run, likely to be extended to the prosecution of all crimes of transnational character, thus leaving to the public prosecutors of Member States the task of prosecuting only those crimes which are of strict national interest and dimension. Furthermore, "institutional" associations of the judiciary above all the European Network of Councils of the Judiciary - appear to introduce themselves as actors in the process of the European judicial policymaking and "mediators" between supranational institutions and member State judiciaries.
However, this research has to face some conceptual difficulties. Firstly, the notion of network is not a consolidated category in legal theory; consequently, it is required the effort to import from other disciplines a rigorous definition of this notion. Secondly, it is necessary to distinguish, among the various instruments and institutions operating in the context of the EU integration process, between different types of networks. In particular, a main subdivision appears to be between instruments and institutions for the cooperation in the exercise of the judicial function by member State and EU judges, and institutions created to promote, at supranational level, training, cultural and scientific exchange, if not "lobbying" action in support of autonomy and independence of the judiciary.
All these dynamics take place in the AFSJ, as newly designed by the Treaty of Lisbon, that will develop following the strategic coordinates established by the so called Stockholm Programme. This policy field is characterized by two conflicting principles: on the one hand, the will of member States to defend their sovereign prerogatives in the field of administration of justice; on the other, the need of effective tools to combat transnational crime and give an effective response to transnational litigation, inevitably growing along with the process of economic integration.
Hence the interest of a research on the topic of judicial networks, in order to verify if and how they help in determining the institutional balance in the AFSJ, and evaluate the consequences on the relations between EU institutions and Member State powers.
2. The EU as an Area of Freedom, Security and Justice
The Lisbon Treaty introduces many innovations in the AFSJ. This policy area leaves the intergovernmental pillar, where it was placed by member States eager to defend their sovereign prerogatives, and is now included in the field of shared competences between the Union and member States. (5)
Consequently, EU political action in this field has now to deal with the qualified majority voting system in the Council, the co-decision maker role of the European Parliament, and the new powers conferred to national Parliaments to guarantee the respect of the subsidiarity principle. Furthermore, it has to deal with the new legal status of the Charter of fundamental rights of the European Union and with the future access of the EU into the European Convention on Human Rights, that, ultimately, will make the Court of Justice of Luxembourg itself subject to the jurisdiction of the European Court of Human Rights of Strasbourg.
With the Lisbon compromise member States abandoned constitutional symbolism, and followed a more low profile evolution. However, the evolution of the AFSJ shows that the EU cannot abstain from operating in fields that realize the context for the exercise of the four fundamental freedoms of the Union (in particular, freedom of movement of persons), and the premise of economic integration and common market (i.e. fundamental rights, citizenship, immigration, asylum, human rights trafficking, access to justice, judicial guarantees, investigative activities). (6)
The Lisbon Treaty enables the Council, with the consent of the European Parliament, to establish a European Public Prosecutor's Office from Eurojust, by means of regulations adopted in accordance with a special legislative procedure, providing for the possibility of enhanced cooperation in the case of disagreement (artt. 85-86 of the Treaty on the Functioning of the European Union - henceforth TFUE).
This means that further deepening of integration in this field will not be left to the functionalist approach, typical of the so called "Community method", but could proceed through enhanced cooperations, with the risk, however, of higher costs of political negotiation and administrative adjustment in a "multi-speed" EU. (7)
In December 2009 the European Council conferred great priority to the subject, adopting, in execution of art. 68 TFUE, the so called "Stockholm Programme," that defines the strategic guidelines for legislative and operational planning within the AFSJ until 2014. (8)
Firstly, the Stockholm Programme gives an account of what has been already realized, describing a multi-faceted scenario. The elimination of internal borders was certainly fundamental for the creation of a "Area" of freedom, security and justice, but answered mainly to a functional perspective of economic nature, in particular to the need to reduce transaction costs and facilitate freedom of movement.
As for policy priorities, the Programme enhances the idea of a Global Approach to Migration, but controversies among member States on the problem of boat people (i.e. between Italy and Malta, in particular during the Lybian crisis), or criticisms by the Commission on deportation policies adopted by some member States (Italy again, but also France) underlines the need of a true EU immigration policy, currently still missing. In relation to institutional solutions, the Programme enumerates all the actions and institutions already in place, among all Europol, Eurojust, the Agency of fundamental rights, Frontex. All these actions and institutions compose what may be called an articulated system of governance of the EU justice system, with its shareholders and stakeholders. The evolution of this system was at the origin of the debate on the need of a EU "director's room", that finally led to the creation, on July 1, 2010, of the Directorate-General for Justice and Fundamental Rights. (9) However, the EU policy approach to the problem of fundamental rights is still mainly of administrative nature; this is the consequence of the absence of a full-fledged answer at the judicial level, since the exercise of judicial power is reserved to member States (apart from the competences expressly conferred to the Court of Justice and other EU Tribunals). Furthermore, the Stockholm Programme is cautious in describing the instruments proposed for the implementation of its strategic guidelines. Indeed, mutual trust in the legal systems of member States - that is the fundamental pillar of the division of competences between EU and member State courts - will continue to inspire the action of EU institutions in the AFSJ. Consequently, the quality of the "EU judicial system" is determined by the characteristics and performances of the judicial systems of member States. The strategic guidelines of the Programme will have to be implemented, if possible, using already existing institutional instruments, promoting the circulation and adoption of best practices. Legislative intervention of the Union should be tabled only after verification of the respect for the principles of proportionality and subsidiarity, and compatibility with the principles of internal market. Furthermore, the Programme stresses the need for coherence and improved coordination of the activity of the various EU agencies operating in the AFSJ; however, in order to pursue these objectives it supports the idea of more political control by the Council - in other words, member State governments. As for the instruments for the evaluation of policies and legal instruments adopted within the AFSJ, in order to avoid useless duplications it is planned to deepen the synergy, cooperation and active participation of the EU to the activities of the monitoring bodies of the Council of Europe, that would only benefit from the formal accession of the EU to the ECHR.
Finally, the Programme addresses briefly the topic of training of all the operators involved in the EU "justice system" (judges, prosecutors, but also court secretaries, law enforcement officers). It is proposed the definition of a EU training program that should involve a great number of justice professionals within 2015, through the use of already existing institutions and the setting-up of Erasmus-style exchange programmes for judicial and law enforcement professionals. However, the Programme cannot say much more on this topic, for two main reasons. Firstly, it recognizes that member States have primary responsibility on this respect, and the Union can only give support and financial backing. Secondly, it is necessary to avoid that the need of "European training" of judicial operators impinge on independence of judges.
Consequently, the action of EU institution in this field is strictly limited, although the problem of European training of judicial professionals - in particular judges - is of fundamental value for the Union, that has carried out its integration essentially through law.
In fact, training is a decisive element to assure the technical expertise of judges in general terms; technical expertise guarantees judicial independence and safeguards the democratic legitimacy of judicial power. (10) As it has been underlined, training and professional expertise of judges must be present at all levels of the judiciary, because, differently from what may happen with defense attorneys, the parties do not have the possibility to "choose" a well trained and skillful judge for their case. Clearly, this is forbidden by the fundamental principle that the judge must be previously established by law. Consequently, the fundamental right to a hearing - and judgment - by a well trained judge, implies that the technical expertise of judges must be guaranteed by the State. (11) Furthermore, professional training contributes to the creation of the "reference group" of judges, that is composed by those subjects (mainly legal scholars) that have a "dialogue" with judges and, in general terms and from a cultural point of view, may influence their judicial philosophy. In this sense, through professional training it is possible to guarantee the connection of judges with the legal culture. (12)
Clearly, along with the primary responsibility of member States for professional training of judges - both in national and EU law - the topic is of primary importance for the EU itself; however, due to the limitation of its competences, the EU has a very limited range of intervention in the field.
3. "Networks." Introduction to the Problem
This is the context of a study on European judicial networks. A second element is represented by the need to find a definition of the concept of "network", and investigate its applicability to the cooperation of legal systems in the European context.
In the last years, the concept of "network" has often been used as a metaphor to describe the action of public powers. Actually, it is only one of the metaphors that have been used to describe action and performances of public administration. (13)
Indeed, at least for common origins, to the functioning of the public administration was firstly applied the image of the army, stressing some aspects of bureaucratic structures: discipline, hierarchy; subordination and obedience to political power; executive nature of functions; presence of shared values, codes and rituals to strengthen corporative pride.
According to another image that still has many supporters, public administration is a machinery. This metaphor underlines the formalism of administrative procedures that are designed to guarantee repetitiveness, predictability and neutrality, but at the same time reduce readiness to amend mistakes and openness to the interaction with the external environment. A peculiar version on this aspect is the image of the castle, that is used with reference to enterprises but that, in some cases, fits also to public administrations.
The view of public administration as a cooperative and unitary body, instrumental to political directives, is completely overturned, on the other hand, by the image of the political arena, used to stress that public administrations, in fact, are highly fragmented and controversial systems; their components often have conflicting institutional values and interests, tend not to cooperate but to confront each other and political powers, in order to acquire resources, visibility and autonomy. In fact, civil servants are not neutral, and use their position to defend their own institutional interests and values.
As a reaction to the limits and malfunctions of public administration, underlined more or less explicitly by the above mentioned metaphors, some authors tried to remark that, on the contrary, the work of public powers should be inspired by honesty, impartiality, transparency. In this sense, the metaphor of public administration as a religious order focuses on the need to restore public ethics. This image underlines the need for moral integrity and strong motivation of public officers, that should act in the general interest with impartiality, sobriety, neutrality towards political power, avoiding corruption and abuse of power.
With the success of the doctrine of New Public Management, in the last decades a lot of consensus has been collected by the metaphor of public administration as an enterprise. The performances of bureaucratic bodies are often disappointing in terms of efficiency, due to self-referential attitudes and operative complexity; the results are low productivity, waste of public resources, insensitivity for citizens needs, hostility against technological innovation. Hence the idea to adopt also in the public sector managerial approaches and instruments borrowed from private business. This inevitably implies a radical cultural reorientation of administrative action, with a shift from a procedure-oriented to a result-oriented approach; and requires more autonomy of public officers charged with directive powers, that have the task to favor internal competition, expenses reduction, adoption of meritocratic systems of human resources management, in order improve the quality of public services.
This is the current reference paradigm for studies of administrative organization; although it is not immune from criticism and skepticism for the superficiality, sometimes, of the comparison between public organizations in particular their institutional goals - and private entities.
Only one metaphor is able to undermine the hegemony of the Public Management Approach, with a comparable evocative value; it is the image of public administration as a network, a notion used to underline the idea of a flexible system, open to continuous and transversal communication, and consequently more effective in its action.
The metaphor of network is nowadays considered more fitting to describe the nature of complex organizations (both public and private) and their relationships - also at a global level ("networks of organizations").
In the last years, many scholarly works have been dedicated to networks in many scientific areas, to such an extent that theorists have defined the current one as a network society in order to underline the diffusion of the network model. (14)
However, the concept of network still has to find a rigorous definition, that is necessary in order to avoid that it is relegated to the status of metaphor used in terms so broad to be too much generic and consequently without any specific scientific meaning.
Actually, the better way to define the concept of network is adopting an a contrario argument. In this sense, networks are forms of social organization and coordination alternative both to market and hierarchy. (15) On the one hand, market is characterized by instantaneous exchanges, competitive relationships, and its fundamental communicative instrument is pricing; on the contrary, networks are based on continuous, Jong lasting and cooperative relationships, and adopt a communicative mode of relational nature. On the other hand, hierarchy is based on a formalized system of rules and procedures and establishes communicative fluxes mainly of vertical nature, whereas networks develop strong horizontal relationships, and coordination takes place through mutual adjustment, interpersonal trust and shared values. (16)
According to some legal theorists, a network model is to be applied also to the current transformation of modern legal systems. Ost and van de Kerchove were the first to describe the current transformation of law on a global level as a shift of paradigm "from (Kelsenian) pyramids to networks", in other words from a structure of vertical and hierarchical nature, such as the legal system in modern nation States, towards a structure of pluralistic, horizontal and interactive nature. (17)
In this sense, the theory of legal networks, in accordance with the concept of ordered pluralism deriving from the mutual integration of national, supranational and international legal systems, is ready to move beyond the traditional relationship between legal sources based on a hierarchical graduation.
On the other hand, we have already seen that the concept of network may be applied not only to the relationship between legal sources, but also between administrative organizations at transnational level. What is proposed here is to verify the possibility to apply this concept also to the dynamics of judicial power in the European context.
In doing so, it is necessary to take into account the mutual influence between organizational features and the relationships between legal sources. As it has been underlined, the analysis of the judicial function must consider both the institutional guarantees of internal and external independence of the judiciary, and the limits, possibilities and prerogatives granted to judges by the procedural system. Legal interpretation, that is the peculiar and decisive element of the judicial function, is not simply a logic activity, but a "situation" where the judge, during the legal proceedings, is in relationship with a plurality of legal sources (legal pluralism), institutional actors (institutional pluralism) and social actors (value pluralism). In consideration of this mutual influence, the interpretive activity cannot be isolated from the organizational aspects of the judicial function. (18)
Consequently, a research on European judicial networks must consider network dynamics not only in the exercise of the judicial function in strict terms, but also collateral network activities established by judicial institutions.
4. Judicial Networks and Networks of Judicial Institutions in the European Context
After describing the conceptual framework of the analysis, the purpose now is to verify if the network model may be properly applied to what may be considered as the judicial organization of the European Union, created by the relations between EU courts and member State judges - that, as widely known, have the primary role to guarantee the safeguard of EU law. (19) The result is a complex and integrated EU judicial system, that cannot be properly described according to a hierarchical or pyramidal model.
Member State judges - any member State judge, even at the lowest level - have the task to guarantee not only the implementation of the legal system, but the protection of fundamental rights; in Italy, as in many other member States, they act as "doormen" of the Constitutional Court, having the possibility to raise a question of constitutionality of the parliamentary law (or other act of comparable force) that it is necessary to apply to solve the case pending before them; before doing that, anyway, they have to verify if it is possible a constitutionally oriented interpretation of that law; in some cases, they may even apply directly the Constitution; at the same time, they have to interpret State law in accordance with EU law and, if this is not possible, they may (if they are Courts of last instance, they must) raise a preliminary ruling question before the Court of Justice of the European Union and, on the basis of the answer of the Court of Luxembourg, set aside State law that is in violation with EU law.
In this sense, the network model appears to fit to the above mentioned mechanisms of cooperation between judges (judges and Constitutional Court; judges and Court of Luxembourg) not only under a descriptive, but also under a normative perspective. Indeed, the legal instruments governing those instruments of cooperation not only propose but in some cases require that judicial function is carried out as a "collective" enterprise, and consequently as a "network" function. As an example, this is true in the mentioned case of the duty, for higher State courts, to raise a preliminary question before the Court of Justice of the European Union.
However, an analysis dealing with the topic of networking and judges must necessarily distinguish between cooperative dynamics that are strictly connected with the exercise of the judicial function, and other cooperative dynamics involving judicial professionals and judicial institutions in more general terms.
Indeed, the metaphor of network can describe cooperative relationships between judicial authorities in the exercise of judicial functions (judicial networks, or networks of jurisdictions); on the other hand, it is commonly applied also to the organizations operating in the training and cultural exchange between judicial professionals (networks of judicial institutions or networks of judicial professionals).
In the European legal context we find both judicial networks, such as the one established by the preliminary ruling procedure, and networks of judicial professionals and judicial institutions, such as those established for the training and cultural exchange between judicial professionals and in order to promote independence and autonomy of the judiciary. The latter in some cases are established by international law, such as those created in the context of the Council of Europe. In other cases they are self-organized private organizations that play a "lobbying" role that is eclipsed by the public interest relevance of their activity. (20)
5. The Preliminary Ruling Procedure as a Judicial Network
Since the origin, the EU Treaties established what can be defined a judicial network, that means a procedure that establishes network communication between jurisdictions.
The preliminary ruling procedure, now regulated by art. 267 TFUE, has established a continuous relationship between the EU Court of Justice and State judges (mainly lower judges), characterized by a cooperative relationship of communicative and relational nature, where coordination happens on the base of mutual adjustment, trust and shared values. (21)
Inevitably, there is a vertical (hierarchical) element, represented by the fact that the Court of Luxembourg is the final interpreter of EU law. How ever, the preliminary ruling procedure has strong horizontal elements, that do not follow a hierarchical approach. It is for the member State judge to evaluate the admissibility of the preliminary question on the validity and interpretation of EU law. (22) In the Cartesio case, (23) the Court of Luxembourg stressed that, in general terms, the member State judge has exclusive jurisdiction on the relevance of the preliminary question for the case pending before him. (24) Furthermore, in the Arsenal v. Reed case, a UK judge, as a consequence of what he considered a wrongful evaluation of facts operated by the EU Court of Justice, felt himself free to ignore its ruling. (25)
In this sense, the preliminary ruling procedure establishes a dialogue between the EU Court and State judges with strong horizontal and non hierarchical features, designed to resolve interpretive doubts not with a top down approach, but on the basis of questions raised at State level before ordinary judges, in execution of a principle of loyal cooperation. (26) This overturns the hierarchical logics that inspires the traditional pyramidal logic of the appellate system at State level, as it enables lower judges to directly communicate with the EU Court expressing their points of view in coherence with their national traditions. In this sense, the preliminary ruling procedure is a judicial network that contributes to the "socialization" of State and EU courts in a common EU legal and constitutional culture, favoring the construction of a common legal language.
6. Networks of Judicial Institutions
On the other hand, in the European context we find many examples of networks of judicial institutions. (27)
Particularly interesting is the European Network of Councils for the Judiciary (henceforth ENCJ), that unites the national institutions of Member States (and candidate Member States) of the European Union which are independent from the executive and legislature, and are responsible for the support of the judiciaries in the independent delivery of justice. The aim of the ENCJ is to improve cooperation and mutual understanding amongst the Councils for the Judiciary and the members of the Judiciary of EU Member States. Through this network, that formally has a private nature, State judiciaries appear to find a way to participate in the EU law-making process, trying to overcome the limits of EU competences in the field. In fact, one of the objectives of the ENCJ, as established by its founding Statutes, is the provision of expertise, experience and proposals to EU institutions and other national and international organizations.
Other comparable organs may be found in the context of the Council of Europe that usually does not produce binding norms, but has an important indirect role and a relevant cultural influence within the European Union through recommendations and resolutions.
Analyzing these documents it is possible to verify how the networks of judicial institutions may affect the circulation of models of judicial systems, in particular in the newly established European democracies. In fact, it must be underlined that in Europe, and in general in the "Western legal tradition," it is not possible to find a shared model of judicial system. Actually, the judicial systems of democratic countries may be classified according to the actual balance of two main parameters: independence of judges and relationship between judges and other legal professionals. As for judicial independence, there are four models: a. the US model, where judges are nominated or elected by political power; b. the model of limited political influence, characterized by low internal independence - i.e. higher judges have the task to evaluate the activity of lower judges and may influence their career - and limited external independence, being higher judges nominated by political power (a model now present in Sweden, but in the past common in continental Europe, also in Italy before 1959); c. the model of internal hierarchy, in which political powers have limited influence on the selection of higher judges, whereas higher judges have the possibility to influence the career of lower judges; finally, the model of self-government, guaranteed by the presence of Councils for the Judiciary (Italy, but also Spain and Eastern Europe). (28)
The second parameter that determines the classification of judicial systems in democratic countries is the nature of the relationship between judges and other legal professions. In continental Europe, judges are usually selected at the end of law school and after a period of training; in common law systems, judges are traditionally selected among experienced lawyers and law professors.
Important documents (29) elaborated by the Consultative Council of European Judges (30) and the Consultative Council of European Prosecutors, (31) and other documents also elaborated within the Council of Europe (32) suggest the adoption of a judicial system inspired to self-government and separation from other legal professions, with very limited influence of common law and Scandinavian models.
Consequently, thanks to the influence of networking of judicial institutions, we might say that the so-called Southern European Model of judicial system (33) is proposed to Eastern European countries in transition towards consolidated democracy. However, the tendency in favor of separation of the judiciary from other legal professions is not immune from criticism.
Nowadays, we know that the judge bouche de la loi does not exist in nature, and that, at the same time, it is necessary to build systems that guarantee legal certainty. Low internal independence - that means judicial systems in which higher judges may evaluate the work of lower judges taken under consideration for promotions or other career steps - guarantees higher level of legal certainty. However, it impinges on the impartiality of judges (that are inevitably concerned for the evaluation of their decision by higher judges) leading thus to judicial conformism, that is a strong restraint for the evolution of the legal system. On the other hand, total exemption from any kind of evaluation may lead to low professionalism and low legal certainty.
In fact, legal certainty may be guaranteed without damaging judicial independence through intense professional training of judges that can only benefit from dialogue and interaction with other legal professions (lawyers and legal scholars). However, the model proposed by the mentioned documents elaborated in the context of the Council of Europe says little or nothing about integration between the judiciary and other legal professions (in particular legal scholarship).
One further recommendation formulated in the mentioned documents is the institution of Councils for the Judiciary. However, such institutions, by themselves, do not safeguard the principle of independence of the judiciary (also in the Franchist Spain there was a Judicial Council; all its members were nominated by the executive power in person of the Minister of Justice). Clearly, the composition of the Council is of crucial importance, and all documents, in differently nuanced way, recommend the establishment of a Council that needs to be representative of the judiciary, and consequently composed of a majority of members elected by judges.
However, the question to be answered is whether an institution with full and autonomous competence on the careers of judges, composed by a majority of judges, in systems where the "socialization" of judges-bureaucrats, selected at an early stage of their career, takes place mainly if not only within the judiciary, is really able to avoid that the judiciary becomes a "separate body", responsive only to self-referential and corporative dynamics.
7. Beyond Networking, towards Coordination? Judicial Cooperation and (Possible) Effects on State Systems of Separation of Powers
Other experiences deserve to be included in a research on judicial networking in the European Union.
The first example is the European Judicial Network, created by the Joint Action 98/428 JHA of 29 June 1998 in order to fulfill the recommendation no. 21 of the Action Plan to Combat Organized Crime adopted by the Council on 28 April 1997. In this case, a series of national points of contact have the task of facilitating the cooperation in criminal matters. (34) In this context, member State judicial authorities operate within their own legal system, following their own investigative perspectives and procedural requirements, without the definition of a common strategy. Even less formalized is the European Judicial Network in civil and commercial matters (EJN-civil) established by the Council under the Decision of 28 May 2001. It is a flexible, non-bureaucratic structure, which operates in an informal mode and aims at simplifying judicial cooperation between Member States, giving unofficial support to State judicial authorities. Its legal framework was recently reformed, and now grants access to the Network's activities to other legal professionals through their national professional associations. (35)
However, transnational crime - drugs and human trafficking above all requires coordination of national investigative efforts and prosecutions; hence the need of a supranational authority that is able to coordinate State judicial authorities, within a common strategic approach.
In this sense, Eurojust is an example of "light" verticalization. Differently from the Network of contact points, that, as we have just said, operate within the various member States, Eurojust is composed by 27 representatives of EU member States sitting together in a common structure located in The Hague. According to the establishing decision of 2002, that has been formalized and deepened in artt. 85 and 86 TFUE, Eurojust has the task to favor coordination and overcome informative and strategic asymmetries between State judicial authorities in criminal matters, mitigating the differences between the criminal systems of member Sates. With the support of Eurojust, many operative protocols have been established in order to prevent conflicts of jurisdiction, elaborate common investigative strategies, avoid violations of ne bis in idem principle, etc.
Eurojust is something more than networking, but it is difficult to move beyond "light" coordination. (36) According to art. 82 TFUE, the fundamental principle at the basis of EU judicial cooperation is still mutual recognition of State judicial decisions, established at the Tampere Council in 1999, and legal harmonization has to be pursued in a functional way, that means in order to assure a better implementation of the mutual recognition principle.
However, apart from the experience of the European Arrest Warrant, a "success story" that has set aside the traditional system of extradition, in order to acquire evidence or carry out investigations in other EU member States it is still common the use of letters rogatory, that are instruments inspired to a traditional view of judicial cooperation, following a horizontal dimension of intergovernmental relationships. This is due to the lack of implementation of various EU legal instruments, such as the framework decisions on freezing, seizure and confiscation of crime results (2003, 2005 e 2006); in other cases, to bad quality of EU legal instruments, such as the European evidence warrant (Council Framework Decision 2008/978/JHA of 18 December 2008).
Notwithstanding the efforts of the Spanish presidency of the Council of the European Union during the first semester 2010, aimed at following the model of a network among the general prosecutors of EU member States, the real perspective of the establishment of a EU Public Prosecutor's Office is yet to come.
The Treaty of Lisbon and the Stockholm Progamme confirm the idea of a step by step approach. Firstly, according to art. 85 TFUE, Eurojust will be conferred with the power to open an investigation, and only in a second time an EU prosecuting authority will be created, according to art. 86 TFUE - at the beginning only to prosecute crimes against EU financial interests (with inevitable organizational links with OLAF, the already existing EU financial investigative body).
However, the consolidation of existing instruments of judicial cooperation already affects the relations between powers at State level, as a consequence of the relational nature of the integration between EU and State legal systems.
One example is the new Council decision 2009/426/JHA of 16 Dec. 2008. This legal instrument strengthens Eurojust conferring new powers to national members (artt. 9 a-9e), and was already at the basis of a judicial controversy before the Italian Constitutional Court.
According to art. 2 Law no. 41/2005, the Italian national member of Eurojust is appointed by the Minister of Justice, and must be a judge or a prosecutor with at least 20 years of career. The Minister of Justice picks up his nominee from a short list submitted by the Superior Council of the Judiciary. The same law enables the Minister of Justice, through the Chief of Department for Justice Affairs, to give directives to the national member of Eurojust for the exercise of its functions.
The constitutionality of the above mentioned law was challenged for the suspect violation of a number of clauses of the Italian Constitution: art. 104 co. I, according to which the judiciary is an autonomous order, independent from any other power; art. 105 Cost., reserving to the Superior Council of the Judiciary, according to the law on the Judiciary, all decisions regarding recruitment, transfers, promotions and disciplinary rulings on judges; art. 107 that establishes the principle of immovability of judges, according to which judges cannot be dispensed, or suspended from judicial service, or transferred to other posts or functions if not by decision of the Superior Council; art. 110, according to which the Minister of Justice is in charge with the organization of services of the justice system.
All the above mentioned constitutional clauses design the Italian justice system, in which all the competences on the status of judges (recruitment, assignments, transfers, promotions, disciplinary rulings) are reserved to the Superior Council of the Judiciary, whereas the political organ, that is the Minister of Justice, that is not member of the Council, is in charge with the organization of the administrative services for the justice system, has inspective powers on judicial offices and can only require the beginning of disciplinary actions. In the light of this division of powers the executive power and the judiciary have to follow in their relations a principle of loyal collaboration. (37)
This is the constitutional context of the case brought before the Italian Constitutional Court regarding art. 2 Law n. 41/2005. The Administrative Tribunal of Rome raised the constitutionality question, reasoning that the discretionary appointment power of the national member to Eurojust, conferred to the Minister of Justice, was allegedly in violation of the Italian constitutional system, since Eurojust is an international organ that carries out judicial functions. The Administrative Tribunal focused in particular on some clauses of the decision establishing Eurojust, amended by decision 2009/426/GAI: artt. 6 and 7 give to Eurojust the possibility to ask to the competent authorities of Member States to undertake an investigation or prosecution of specific acts; art. 9 co. III, provides that, in order to meet Eurojust's objectives, the national member shall have at least equivalent access to, or at least be able to obtain the information contained in the registers of his Member State as would be available to him in his role as a prosecutor, judge or police officer, whichever is applicable, concerning: criminal records; registers of arrested persons; investigation registers; DNA registers; other registers of his Member State where he deems this information necessary for him to be able to fulfill his tasks; art. 9a, according to which each member State shall define the nature and extent of the powers it grants to its national member as regards judicial cooperation in respect of that member State; art. 9b, according to which national members, in their capacity as competent national authorities, shall be entitled to receive, transmit, facilitate, follow up and provide supplementary information in relation to the execution of requests for, and decisions on, judicial cooperation, including regarding instruments giving effect to the principle of mutual recognition.
All these provisions, according to the Administrative Tribunal of Rome, give a strong judicial connotation to the national member of Eurojust. This connotation is allegedly even stronger after the entry into force of art. 85 TFUE, according to which the European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Eurojust's structure, operation, field of action and tasks, that may include: the initiation of criminal investigations, as well as proposing the initiation of prosecutions conducted by competent State authorities, particularly those relating to offenses against the financial interests of the Union; the coordination of such investigations and prosecutions; the strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and close cooperation with the European Judicial Network.
According to the Administrative Tribunal of Rome, all this enabling provisions - in particular the possibility to initiate criminal prosecution - give to Eurojust the nature of a judicial body; the national member is appointed to exercise judicial functions, although in the context of an organization of judicial cooperation, and the appointment procedure affects the judge status, that is constitutionally guaranteed; consequently, any intervention of the executive power in the appointment procedure should be excluded, and the appointment power should be exclusively reserved to the Superior Council of the Judiciary.
For this reason, the Italian Constitutional Court was called to decide on a case directly affecting the balance of power between the executive power and the judiciary, and in particular to verify if the conferral of judicial functions to Eurojust still allows, according to the Italian Constitution, that the national member is, de facto, a representative of the government, or requires that the appointment power to such supranational post is reserved to the national judiciary. Potentially, the Constitutional Court was called to decide on the distribution of powers between the government and the judiciary in all cases in which Italy has the possibility to appoint judges in international and supranational judicial bodies.
With judgment no. 136/2011, the Italian Constitutional Court rejected the claims of unconstitutionality, declaring that the functions of the national member of Eurojust do not have judicial nature, and, in particular, are not typical of the public prosecutor.
In order to correctly evaluate the decision, it must be underlined that the Court expressly refused to consider the EU framework decision recalled by the parties, since the term for its implementation was still pending at the moment of the decision. Then the Court underlined that, differently from the judicial institutions established by the EU or international organizations, Eurojust activities of "assistance", "collaboration", "support" and "coordination" are instrumental to the functions of member State judicial authorities, and do not have binding nature. Consequently, they do not have the nature of autonomous prosecutorial functions, that are still reserved to State public prosecutors, but only administrative nature. According to the Court, the function of "coordination", in particular, has a different qualitative nature from the powers conferred in Italy to the National Antimafia Prosecutor (art. 371-bis of criminal procedure code). Furthermore, the possibility to access to judicial information contained in public registers does not have decisive value, since in many member States (Italy included) analogous access is granted also to non judicial authorities. Finally, as for the powers of the Eurojust member regarding judicial cooperation in respect of its Member State, the Court underlines that the decision leaves to the member States the task to confer judicial powers. In sum, according to the Court, the decision does not confer any judicial function to Eurojust, and at the same time does not require to the member States to confer judicial functions to their national members. Also Law no. 41/2005, implementing Council decision 2002/187/GAI, does not confer judicial functions either to Eurojust or to the Italian national member. Consequently, the Court rejected the question of constitutionality.
In sum, analyzing the decision of the Italian Constitutional Court, it is possible to say that the constitutional principle of immovability of judges forbids the appointment, by the Minister of Justice, of magistrates to supranational or international judicial organs outside the guarantees of the procedure before the Superior Council of the Judiciary. On the contrary, it would be legitimate the appointment to international or supranational judicial functions of subjects not covered by the constitutional guarantee of immovability (i.e., law professors).
However, the deepening of EU judicial cooperation leads to a growing tension between a system of selection that still reserves to the national government the power to appoint organs directly involved in such cooperation (even if they do not carry out judicial functions in strict terms), and the constitutional traditions of many member States, that reserve judicial appointments to the area of self-government of the judiciary.
8. A Few Concluding Remarks
In the European context, the networks of judicial professionals and judicial institutions, and the networks of jurisdictions and judges contribute to the creation of the Area of Freedom, Security and Justice. This Area is not the mere sum of territories of member States, but has a more dynamic and relational dimension, we could say a network nature, involving the interdependence, sometimes controversial, between legal systems, that determines a real "risignification" of the legal notion of territory as an essential element of the State. (38)
At the same time, member States, although subject to a mutual solidarity duty, still are the "lords" of the integration process, on the basis of a ratio of subsidiarity and efficiency that justifies the delegation of competences to supranational authorities. (39) This is true in general, and even more in the field of EU justice system, that, apart from the express judicial competences conferred to EU courts, has State judges as its fundamental pillars. (40)
On the other hand, all these networks have a direct or indirect impact on the judicial function. In general terms, they enlarge the margins of judicial interpretation, making the European legal system more complex and more difficult to interpret.
However, it is necessary to find a balance between the will of member States to defend their sovereign prerogatives in the field of the administration of justice, and their need to find institutional answers to transnational crime and transnational litigation that inevitably grow together with the process of EU integration. As a consequence, EU judicial cooperation is often of informal nature, and open to institutional controversies. The lack of legal harmonization is coupled with dynamics of cooperation in fields that are instrumental to the judicial function, and this inevitably affects the relationship between EU institutions and State powers.
In fact, the European judicial system is composed by a few judicial organs and a complex of systems of networking, cooperation, coordination of administrative nature that are designed to support the activity of EU and State judicial authorities. Their importance must not be underestimated, if we consider that also the mere collection of data for investigative purposes has great relevance on the protection of fundamental rights.
Paradoxically, the desire of member States to retain their competences in the field of justice, coupled with the need to give a response to transnational crime and inter-State litigation, has led to the creation of cooperation systems that favor the enlargement of the role of judicial power. The disagreement of member States on harmonizing legislation, also in the field of judicial procedure, has been balanced, at least in part, by the role of judicial networking.
Networks of judicial professionals and judicial networks affect the institutional balance between European organs, member State powers, and also have an impact on member State systems of separation of powers. The European Network of Councils for the Judiciary is an expression of horizontal subsidiarity that affects the institutional balance between European organs, aiming at being involved in the EU law-making process. The preliminary ruling system before the EU Court of Justice has a double effect: it influences the powers of member States, assuring their compliance with EU law; on the other hand, it leads to the empowerment of member State judges and contributes to their independence (both internal, from higher judges, and external, from other powers). The foreseen conferral of judicial functions to Eurojust will inevitably affect the Member State system of separation of powers, as already demonstrated by the described institutional controversies on the appointment power of its national members.
In all cases, the role of the judiciary is not merely of passive safeguard of the legal system. In the Area of Freedom, Security and Justice, member State judiciaries, through the instruments and institutions created by the Treaties, or through self-organized organizations, promote European integration, advancing their own "institutional agenda". On the other hand, the impact of judicial networking shows that also at member State level the allocation of powers is evolutionary, relational, responsive to the evolution of the process of EU judicial integration.
In sum, judicial networking facilitates the "institutional activism" of the judiciary in the European context. The attention is consequently drawn to the critical reflection and re-interpretation of a fundamental demand of the "Etat du Droit" or "Rechtsstaat" principle, which is the principle of the separation of powers. Of course, its normative and binding content is not questioned. In fact, it could be considered a meta-constitutional principle, as it operates even without express formulations in constitutional texts. But the attempt is to reconstruct its configuration according to terms which appear more adequate considering the consolidation of dynamics which seem to be intrinsic and characteristic for the constitutional "Etat du droit" or "Rechtsstaat," as they are coupled with the EU integrative project, and do not necessarily correspond to pathological involutions of the system. The main hypothesis, based on these observations, is the use of the "institutional balance" formula for the explanation of the very concept of the separation of powers. This formula, coined in the lexical and conceptual context of the EU legal system, if applied to the pluralistic and multilevel structure of European judicial integration, appears to highlight much more efficiently its interactive moments and cooperative features than the static and mechanic traditional concept of the separation of powers.
NOTES AND REFERENCES
(1.) This article is an updated version of a paper presented at the European Union Studies Association Twelfth Biennial International Conference Boston, Massachusetts (USA), March 3-5, 2011. The research was funded by National Interest Project Prin 2007 "Magistrature, giurisdizioni ed equilibrio istituzionale ("The Judiciary, Jurisdictions and Institutional Balances"). The Author of this article was member of the research Unit of the University of Trento that organized on the topic of judicial networking in the EU legal context the conference "Le reti giudiziarie europee: le esperienze, il potenziale, le conseguenze per la funzione giurisdizionale" ("European judicial networks: experiences, potential, consequences on judicial power"), attended by judicial professionals and legal scholars. Consequently, the author would like to thank Andrea Di Nicola, Filippo Spiezia, Andrea Venegoni, Luca Perilli, Daniela Bifulco, Fabio Roia, Clara Tracogna, Pasquale Profiti, Sergio Bartole, Nino All, Sergio Gerotto, Carlo Guarnieri, Maria Rosaria Ferrarese, Roberto Toniatti, Andrea Scella, Giuseppe Martinico for their comments and bibliographical suggestions. Finally, the Author would like to thank Francesca Bignami for her comments on the paper presented in Boston. Usual disclaimers apply. An Italian version of this article is published as M. Magrassi, "Reti giudiziarie ed equilibrio istituzionale nel processo di integrazione europea," in R. Toniatti, M. Magrassi (eds.), Magistratura, giurisdizione ed equilibri istituzionali. Dinamiche e confronti europei e comparati, Padua, 2011.
(2.) See F. Ost and M. van de Kerchove, De la pyramide au reseau? Pur une theorie dialectique du droit, Brussels, Publications des Facultes universitaires SaintLouis, 2002. On the topic, see also E. Frediani, La produzione normativa nella sovranitd "orizzontale", Pisa, 2010.
(3.) See A.M. Slaughter, A New World Order, Princeton, 2005; F. Bignami, Individual Rights and Transnational Networks, in S. Rose-Ackerman, P.L. Lindseth (eds.) Comparative Administrative Law, Cheltenham, UK, Northhampton, MA, pp. 632-638: Edward Elgar, 2010; E. Chiti, European Agencies: A Legal Form for Network Management?, in A. George, P. Machado, J. Ziller (eds.), Law and Public Management: Network Management. Part II, European University Institute Working Paper, Law, 2001, n. 13, p. 23 ss.; M. de Visser, Network-based Governance in EC Law. The example of EC competition and EC communications law, 2009.
(4.) On the topic, see ex multis, G. Giudicelli-Delage, S. Manacorda, L 'integration penale indirecte: interactions entre droit penal et cooperation judiciaire au sein de l'Union europeenne, Societe de legislation comparee, 2005; E. Guild, G.F. Aldershot (eds.), Security versus justice?: police and judicial cooperation in the European Union; Burlington, Vt. : Ashgate, c2008; G. de Amicis, Cooperazione giudiziaria e corruzione internazionale: verso un sistema integrato di forme e strumenti di collaborazione tra le autoritd giudiziarie, 2007; B. Nascimbene (ed.), Da Schengen a Maastricht: apertura delle frontiere, cooperazione giudiziaria e di polizia, 1995; B. Piattoli, Cooperazione giudiziaria e pubblico ministero europeo, 2002; L. Salazar, La lotta alla criminalitd nell'Unione: passi in avanti verso uno Spazio giudiziario comune prima e dopo la Costituzione per l'Europea ed il programma dell'Aja, in Cass. Pen. 2004, 11, 3510; N. Bartone (ed.), Dirittopenale europeo: spazio giuridico e rete giudiziaria, 2001.
(5.) For a first analysis on the topic see R. Toniatti, Approvato il programma di Stoccolma. Lo Spazio di libertd, sicurezza e giustizia dopo Lisbona, in Affarlnternazionali, Rivista online di politica, strategia ed economia, available at http://www. affarinternazionali.it/articolo.asp?ID=1356. See also R. Toniatti, Lo Spazio di libertd, sicurezza e giustizia: il sistema delle <<reti di collaborazione giudiziaria>> e gli equilibri istituzionali nel sistema dell'Unione Europea, in R. Toniatti, M. Magrassi (eds.), Magistratura, giurisdizione ed equilibri istituzionali. Dinamiche e confronti europei e comparati, 2011, pp. 325-392.
(6.) In this sense see R. Toniatti, Approvato il programma di Stoccolma, quoted.
(7.) In this sense see v. M. Savino, Trattato di Lisbona. La Pesc e lo Spazio di Libertd, Sicurezza e Giustizia, in Giornale di diritto amministrativo, 3, 2010, 226231. On the topic of the EU prosecutor, see M. Bargis, Il pubblico ministero nella prospettiva di un ordinamento europeo, in Riv. it. dir. e proc. pen., 2004, 3, p. 745; M. Delmas-Marty, Evoluzione del pubblico ministero e principi direttivi del processo penale nelle democrazie europee, in Quest. gius; F. de Leo, Da Eurojust al pubblico ministero europeo, in Cass. Pen., 2003, 4, p. 1432; L. Lombardo, L'istituzione del procuratore europeo: problemi e prospettive, in Cass. Pen.. 2003, 2, p. 690; V. Monetti, Il Pubblico Ministero Europeo, in Quest. giust., 2002, n. 6; B. Piattoli, Cooperazione giudiziaria e pubblico ministero europeo, 2002.
(8.) See GU C 115 del 4.5.2010, pp. 1-38. The Commission presented its implementing plan, COM(2010) 171. On the topic see F. Spiezia, Il coordinamento giudiziario sovranazionale: problemi e prospettive alla luce della nuova decisione 2009/426/GAI che rafforza i poteri di Eurojust, in Rivista della Corte dei Conti, 1, 2010, pp. 14 ss.
(9.) On the topic, see The Case of a DG Justice at the European Commission, briefing paper del Conseil des barreaux europeens - Council of Bars and Law Societies of Europe, available at http://www.ccbe.eu/fileadmin/user_upload/NTC document/ The_case_for_a_DG_Ju1_1231414454.pdf
(10.) In this sense see v. A. Pizzorusso, Principio democratico e principio di legalitd, in Questione giustizia, 2, 2003, 345 and following; A. Proto Pisani, Controriforma dell'ordinamento giudiziario: ultimo atto?, in Foro it., 2004, V, 109 and following.
(11.) In this sense see R. Romboli, La professione del magistrato tra legislazione attuale e possibili riforme, in I magistrati e la sfida della professionalitd, Milano, 2003, p. 9 and following.
(12.) See C. Guarnieri, P. Pederzoli, The Power of Judges. A Comparative Study of Courts and Democracy, Oxford, Oxford University Press, 2002.
(13.) On the topic, also for reference bibliography, see F. Campomori e F. Toth, L'amministrazione a rete: retorica o realtd?, in Stato e mercato, n. 1, aprile 2007, pp. 107 ss.
(14.) For reference bibliography, see again F. Campomori e F. Toth, L'amministrazione a rete: retorica o realtd?, quoted.
(15.) In this sense see Powell, W.W. (1990), Neither Market nor Hierarchy: Network Forms of Organization, in Research in Organizational Behavior, vol. 12, pp. 295-336, quoted in F. Campomori e F. Toth, L'amministrazione a rete: retorica o realtd?, quoted, p. 113.
(16.) Nohria, N., Eccles, R.G (1992), (eds.) Networks and Organizations. Structure, Form, and Action, Boston: Harvard Business Scholl Press., quoted in F. Campomori e F. Toth, L'amministrazione a rete: retorica o realtd?, quoted, p. 113.
(17.) See M.R. Ferrarese, La governance tra politica e il diritto, Il Mulino, 2010.
(18.) In this sense see D. Bifulco, Il giudice e soggetto soltanto al diritto, Napoli, 2008.
(19.) On the topic, see, ex multis A. Arnull, The European Union and its Court of justice, Oxford, 2006; N. Brown, T. Kennedy, The Court of justice of the European Communities, London, 2000; R. Calvano, La Corte di giustizia e la costituzione europea, 2004; C. Cattabriga, La Corte di giustizia e il processo decisionale politico comunitario, 1998; M. Condinanzi, Il Tribunale di primo grado e la giurisdizione comunitaria, 1996; A. Dashwood, A. Johnston, The future of the judicial system of the European Union, 2001; G. de Burca, J.H.H. Weiler, The European Court of Justice, Oxford, 2001; U. Leanza, P. Paone, A. Saggio, Il tribunale di primo grado della Comunitd europea, 1994; A. Stone Sweet, The judicial construction of Europe, Oxford, 2004; A. Tizzano, La "Costituzione europea" e il sistema giurisdizionale comunitario, in Dir. Un. Eur., 2003, 2-3, p. 455; N. Zanon (ed.), Le corti dell' integrazione europea e la corte costituzionale italiana: avvicinamenti, dialoghi, dissonanze, 2006.
(20.) On the topic see A. Canepa, La progressiva "retificazione" dell'Unione europea: il caso del settore giustizia, in Diritto Pubblico Comparato ed Europeo, 2006, fasc. 3, pp. 1033-1061.
(21.) The reference bibliography on the topic is extremely wide. For a close thematic connection with the line of reasoning followed in the text see G. Raiti, La collaborazione giudiziaria nell'esperienza del rinvio pregiudiziale comunitario, 2003.
(22.) See recently Court of Justice of the European Union, Transportes Urbanos, case C-118/08.
(23.) See Court of Justice of the European Union, Cartesio, C-210/06, point 67.
(24.) However there are some filters, such as Court of Justice of the European Union, Cilfit, C-283/81, and also art. 104 p. 3 of rules of procedure of the Court.
(25.) Football Club v Matthew Reed  1 CMLR 13.
(26.) On the topic see M. Claes, M. de Visser, Courts United? On European judicial networks, in B. de Witte, A. Vauchez, The European Legal Field, 2010.
(27.) Other examples, among others, are the Conference of European Constitutional Courts, the European Association of Judges, the European Association of Labour Court Judges, the Association of European Judges, the European Judicial Training Network.
(28.) See C. Guarnieri, P. Pederzoli, The Power of Judges. A Comparative Study of Courts and Democracy, quoted; J. Bell, Judiciaries within Europe: a comparative review, Cambridge, 2006.
(29.) Bordeaux Declaration: Judges and Prosecutors in a Democratic Society, 2009.
(30.) See http://www.coe.int/t/DGHL/cooperation/ccje/default_en.asp
(31.) See http://www.coe.int/t/DGHL/cooperation/ccpe/default_en.asp
(32.) See Group of Specialists on the Judiciary, Draft Recommendation on the Independence, Efficiency and Responsibilities of Judges, Strasburg, 4 December 2009; European Commission for Democracy through Law, Report on the Independence of the Judicial System. Part I: The Independence of Judges, Venice, 12-13 March 2010; (compare resolution n. 1685 of the Parliamentary Assembly of the Council of Europe of 30 September 2009.
(33.) See W. Voermans, Councils for the Judiciary in Europe: Trends and Models, in F. Fernandez Segado (ed.), The Spanish Constitution in the European Constitutional Context, Dykinson, 2003, pp. 2134-2135.
(34.) See http://www.ejn-crimjust.europa.eu/
(35.) See http://ec.europa.eu/civiljustice/index_en.htm
(36.) On the topic, see E. Zanetti (ed.), Eurojust e l'ordinamento italiano, 2006.
(37.) See Italian Constitutional Court, judgment n. 380 of 2003.
(38.) In this sense see Alessandra Di Martino, Il territorio: dallo Stato-nazione alla globalizzazione. Sfide e prospettive dello Stato costituzionale aperto, Giuffre, Milano, 2010, passim.
(39.) In this sense see R. Toniatti, La razionalizzazione del ruolo dello Stato: spunti e appunti per uno studio sistematico sull'ordinamento composto, in A. Reposo, L. Pegoraro, R. Scarciglia, M. Gobbo, S. Gerotto (eds.), Federalismo, decentramento e revisione costituzionale negli ordinamenti policentrici - Liber Amicorum per Nino Olivetti Rason, Padova: CLEUP, 2010, (Il Diritto Della Regione), 266.
(40.) This is not an application of a sort of "subsidiarity principle", but an answer to the need to guarantee implementation, in member States, of judicial decisions adopted on the basis of EU law. In this sense see D. F. Waelbroeck, Liability: Convergence or Divergence?, in D. Curtin, T. Heukels (eds.), Institutional Dynamics of European Integration, Essays in Honour of Henry G. Schermers, II, Dordrecht, 1994, p. 468.
University of Trento
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|Publication:||Contemporary Readings in Law and Social Justice|
|Date:||Jul 1, 2011|
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