Nicholas Emiliou: Technology can substantially improve the administration of justice

Nicholas Emiliou, Advocate General at the Court of Justice of the European Union, discusses his atypical transition from diplomacy to the Court, the challenges confronting the EU’s legal order, and the changes technology will bring to the administration of justice.

Among other things, he also shares the advice he would offer to someone seeking to pursue a career in diplomacy and/or law.

It is almost 30 years since you began your career as an advisor to the Minister of Foreign Affairs on issues of European, Human Rights and International Law and, in a way, you appear to have come full circle following your appointment as one of the 11 Advocates General at the European Court of Justice in 2021. That said, most of your career has been spent as an Ambassador/Permanent Representative of Cyprus. Is your latest career move a common one for diplomats? Did you purposely seek this change?

It is true that I began my career as an academic lawyer in the UK. When I decided to repatriate to Cyprus in the early 1990s, the University of Cyprus, which would have been the natural destination for me to continue my career, was at an embryonic stage and without a Faculty of Law. Therefore, at the time, the Ministry of Foreign Affairs was one of the few options in Cyprus for someone with my qualifications and experience. I am fortunate to have had an interesting and exciting diplomatic career and seen international law and the EU in practice. After 27 full years at the Ministry, having achieved what I had set out to at the beginning of my diplomatic career, I felt it was a good time for a change and a return to my law books on a full-time basis. Thus, when the opportunity arose for the position of Advocate General at the Court of Justice of the European Union, I did not hesitate for a second, even though it is not a typical career move for a diplomat to become a member of the Court of Justice. Then again, my background was not a typical diplomatic one, given my previous career as an academic lawyer.

Drawing from your diplomatic (and academic) experiences, what valuable lessons did you carry over into your role as an Advocate General?

My academic background has given me a strong legal and theoretical grounding, which is invaluable in fully understanding and tackling the legal issues raised by each case that comes to my office for consideration. I was also fortunate to have served as Permanent Representative of Cyprus to the EU for approximately 10 years and, as such, to have been a member of the Committee of Permanent Representatives (CO.RE.PER.). As you know, CO.RE.PER. plays a key role in the EU legislative process, and my participation made me keenly aware of the sensitivities of each Member State towards a wide range of EU policies. The Court of Justice does not operate in a vacuum and an awareness of the role and the function of the other EU institutions, as well as the Member States’ legitimate concerns on key issues, is really helpful in my current function.

Let’s address some of the challenges confronting the EU’s legal order. The erosion of judicial independence and separation of powers in certain Member States, notably Hungary and Poland, has raised concerns about the rule of law. Some assert that there is no rule of law crisis in the EU, viewing it instead as a political or constitutional conflict. Where do you stand?

The European Union is a supranational community based on the rule of law. It has gone through various challenges during the last seven decades. In the 1960s and ’70s, it was the challenge of the recognition of the supremacy of Union law in certain national jurisdictions. Then in the 1980s and ’90s, it was about removing numerous obstacles to create a truly integrated EU internal market. The Union has met these challenges successfully and flourished. I believe that this will be the case with the current challenges we face.

Nonetheless, what actions should be taken to safeguard the rule of law and democracy, and how does the ECJ address these challenges?

The Union has several means at its disposal to safeguard the rule of law and democracy. One such mechanism is the procedure under Article 7 of the EU Treaty, which is a means of putting political pressure on the recalcitrant Member States. There is also the procedure under Article 258 TFEU, whereby the Commission may bring infringement proceedings before the Court of Justice, if a Member State has failed to fulfil its obligations under the EU Treaties, including respect for the rule of law. This is a means of legal pressure. Finally, there is also the conditionality concerning the respect of the rule of law for the financing of the Member States under various EU instruments, which is an effective means of financial pressure. The EU has already used all of the instruments at its disposal with a degree of success.

Now, let’s shift focus to the rapid rise of AI-powered large language models, like ChatGPT, regarded by some as potentially the last human-generated technology. With a few use cases already emerging in the legal domain, some with concerning implications, what specific risks do you identify concerning the administration of justice and fundamental human rights?

AI poses particular challenges when it comes to setting and applying the law, especially legal rules that seek to preserve the opportunities associated with AI while minimising potential risks. The law must aim to ensure good digital governance, both with respect to the development of algorithms generally but also the use of AI specifically. Particularly formidable are the challenges concerning the regulation of the use of learning algorithms, such as in the case of machine learning. The biggest challenges in this regard are ensuring transparency, accountability, responsibility, the ability to make revisions and, last but not least, preventing latent discrimination.

How can the ECJ adjust to this rapidly evolving technological landscape?

Technology has the potential to substantially improve the administration of justice. Digital tools helped the Court remain operational during the recent COVID-19 emergency and are poised to become a permanent feature of its operations. The Court is currently engaged in assessing and improving these tools, testing multiple technology products, collecting and analysing use and performance data and combining technology with other process improvements.

Which additional trends or developments do you anticipate influencing the future work of the ECJ?

Historically, the Court has responded to the particular challenges posed at each stage of development of the Union, the world at large and life in general. Given that we live in a largely unpredictable environment, it is hard to predict with any degree of accuracy what will be next in the work of the Court. However, given the radical changes in technology, one can predict with a reasonable degree of certainty that issues related to technological development will continue to have a prominent place in our work. The same can be said about asylum and migration issues, so long as the current migration crisis continues. The development of the Court as a “human rights court” will also continue, given the growing awareness by both national lawyers and EU citizens of the extensive panoply of rights they enjoy under EU law.

Finally, returning to our initial discussion, what advice would you offer to someone seeking to pursue a career in diplomacy and/or law?

Both careers require hard work, integrity, an eagerness to learn new things and to adapt, intellectual curiosity, common sense and humility.

This interview first appeared in the August edition of GOLD magazine. Click here to view it.