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European Union Court of Justice Series: Interview with Vice President Lars Bay Larsen

Episode #4 November 14, 2024
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Berkeley Law’s Borderlines podcast host, Professor Katerina Linos, and guest co-host, Professor Mark Pollack (Temple University), conduct a special interview series profiling Judges and Advocates General serving at the Court of Justice of the European Union (CJEU) in Luxembourg.

Episode #4 of the Borderlines CJEU Series features CJEU Vice President Lars Bay Larsen of Denmark in conversation with Professor Katerina Linos and Professor Mark Pollack. Vice President Bay Larsen served as a Judge at the Court of Justice since 2006 upon being nominated by his home country, Denmark. He was elected by his peers to two six-year terms as Chamber President before being elected Vice President of the Court of Justice, the position he held from October 2021 to October 2024.

Highlights of the interview include detailing the role of the Vice President at the Court and the use of interim and provisional measures; evolving Court decisions regarding privacy, security and technology; candid views on landmark cases such as Weiss and recent legislative policies like NextGenerationEU; and personal perspectives on taking time to find a career path and work-life balance.

Vice President Bay Larsen earned his law degree from Copenhagen University and was entered as a member of the Danish Bar since 1991. He worked in Denmark’s Ministry of Justice in various capacities from 1983-2003, then served on Denmark’s Supreme Court from 2003-2006 before being appointed judge for CJEU. Vice President Bay Larsen also represented Denmark at the K4 Committee from 1995 to 2000, the Schengen Central Group from 1996 to 1998, and the Europol Management Board from 1998 to 2000. He’s been a longstanding guest lecturer with the Faculty of Law, Economics and Finance at the University of Luxembourg and recently joined Gorrissen Federspiel’s EU law team upon leaving the Court of Justice after his dedicated service.

Cases and sources mentioned in the podcast:

Select speeches by Vice President Bay Larsen for further research:

Citation: Linos, Katerina and Pollack, Mark. Episode #5: Interview with Vice President Lars Bay Larsen. Borderlines podcast, European Union Court of Justice Series (Nov. 14, 2024). https://www.law.berkeley.edu/podcast-episode/cjeu-episode-4-european-union-court-of-justice-series-interview-with-vice-president-lars-bay-larsen/

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Episode Transcript

Katerina Linos: Welcome to Borderlines. I’m Katerina Linos, Tragen Professor of Law at the University of California at Berkeley.

Mark Pollack: And I’m Mark Pollack, Freaney Professor of Political Science and Law and Jean Monnet Chair at Temple University.

Katerina Linos: And this is our series of interviews that we conducted in the summer of 2024 with Judges and Advocates General of the Court of Justice of the European Union in Luxembourg.

In this episode, you will hear our interview with Lars Bay Larsen, the Danish Vice President of the Court, who joined us for a discussion just a few months before the end of his 18 years in Luxembourg.

Mark Pollack: Katerina, I think one of the most interesting elements of this interview was for us to learn more about the position and the duties of the Vice President of the Court, which I think is one of the least understood things about the Court, and which most strikingly includes the right and the responsibility to take all decisions regarding interim and provisional measures pending a judgment of the Court. It was, for example, Vice President Bay Larsen who adopted the famous fine of 200 million Euros plus an additional million Euros a day [00:04:00] for Poland’s failure to respect the judicial independence of its own Judges.

A case that we’ll talk about in some detail.

Katerina Linos: So now, let’s begin our conversation.

Katerina Linos: [00:00:00] Thank you so much, Vice President Bay Larsen, for speaking to us today. We wanted to find out more about the role of the Vice President. I know you’ve been incredibly busy these last few years, that one of your roles includes working on interim and provisional measures. Globally, we focus a lot on interim measures, for example, the International Court of Justice and their interim measures in the Gaza conflict are front page news, but less is known about what the Court of Justice does when it uses interim measures in important cases. We know that they’ve been used in important cases on the rule of law, on resistance to the migrant relocation scheme, on mergers, on the COVID emergency. So I thought I would start by hearing a little bit more about how interim measures work in the Court of Justice.

Vice President Bay Larsen: Well, without making it too technical and [00:01:00] too complex, it’s a possibility that is open according to our rules, to put in place measures which are needed if we respond positively to a request for interim measures. Then to put them in place to preserve the position while the case is pending of certain situation or protect against deterioration of a situation, which may or may not already be the difficulty, especially for one of the parties, the requesting party. I take then the decision when it’s our court. Similarly, when it’s a case pending before the General Court for interim measures, it’s the President and Vice President there who are in charge of that and their [00:02:00] decisions in this type of measures can be appealed to us like other decisions taken by the General Court. And then it’s me as Vice President who handles these appeals.

Katerina Linos: Maybe I’ll ask about a specific case in which you decided not to unilaterally use your power to order interim measures, but instead to send that question to a broader formation. This is a landmark case on judicial independence in Poland. There’s been a series of such cases. They’re significant politically, they’re significant legally because of the treaty articles that are quite broad and they’re significant because there’s many of them pending. Could you talk to me about that?

Vice President Bay Larsen: It’s not just a question of whether or not it’s [00:03:00] politically sensitive, because cases might be politically sensitive.

But what I recall myself best is perhaps a situation where the question was closely linked to the internal procedural relationship between our court and the General Court and the General Court’s procedural practice in a certain manner, without making it too complex, and therefore the decision that a priori I would take at an early stage would require perhaps prejudge somehow what was a question of more legislative – procedural, legislative, institutional nature – and therefore it seemed to me at the time that this was better brought up before larger formation. And so that is, is possible. But the [00:04:00] nature of many of these interim measures is, it’s linked to the urgency. And therefore it is not taken by a complete formation of three, five or 15 Judges, but by a single Judge and in the case of our court for the time being, me.

So these, of course, important cases for – important for the parties in the individual case and important for the Court and certainly important for the Vice President because it’s almost inevitably cases of high urgency. It’s one of the reasons why a Vice President is normally rather busy.

Katerina Linos: Let me ask a question about the series of decisions that [00:05:00] followed the first cases on Judges in Poland. There can be a very positive story to tell, that you had a lot of preliminary references, you had a lot of decisions, you interpreted broad treaty articles on judicial independence in a way that forced the Polish government to comply.

There were big decisions on penalties. There were elections in Poland that were in the pro-EU, pro-democracy direction. How would you characterize – not this initial case on interim measures, but the jurisprudence on Polish Judges and perhaps Portuguese Judges – judicial independence as it’s evolving?

Vice President Bay Larsen: Well, I’m not sure I want to characterize them because I think first and foremost, [00:06:00] the policy of Poland and the past policy and the future policy is primarily for the Polish voters and population, government, responsible authorities to decide. That also includes, of course, Polish Judges.

What we are charged with is to interpret and apply Union law and to try and do that correctly. It’s not that we have a judicial program that now we want to do this or we want to do that and move in this direction. We don’t, unlike the American Supreme Court who has a discretion in selecting the 75 or 85 cases a year that they look into in full, we have to treat [00:07:00] every case that comes in through the door.

And we don’t create cases ourselves. That for me, that’s part of being a court of law. So it’s not like we have a judicial program or a five- or 10-year or 15-year plan to unfold. Every case should be treated in its merits one at a time and taking into account the pattern that has been laid in other cases to find a jurisprudence that is so far as possible coherent. And when it’s no longer possible to have it coherent, if that happens, you sort of break a new line, then you explain in the judgment why you develop jurisprudence in a [00:08:00] certain new way, if that’s the case.

We’re looking in that sense like most courts backwards and not straight into the future and saying, “Where do we want to be in 20 years time?” We apply the rules and that’s how it is.

Katerina Linos: The U.S. Supreme Court has had a break in its jurisprudence on abortion, a break in its jurisprudence on race relations.

Are there any breaks that the Court of Justice can acknowledge or any cases where you would say, “We’re not reversing ourselves, but here’s a big deviation?”

Vice President Bay Larsen: I think we can mention perhaps a couple of cases; cases on data protection vis-à-vis law enforcement is one area, which has been – it’s a [00:09:00] relatively new area.

The conflict between privacy and law enforcement needs is not something new, but the technology that surrounds not only the courts, but, but everybody is evolving and very often a lot faster than legislation and jurisprudence is able to to follow. So in that sense, it’s natural that there is a development.

Things that was not possible 10 years ago or five years ago or three years ago are now possible and that gives new possibilities but also new challenges and there I think we can. . . We had the case recently, this year, La Quadrature du Net II, where the Court decided to, [00:10:00] in fact a case that first went through the Grand Chamber and then was relaunched before the full court to allow the possibility to, if necessary, make a broader revision or, nuancing the jurisprudence of the Court.

So that remarks, for me, a good example of what you described, that the Court from time to time, do this sort of thing and does it consciously.

Katerina Linos: I want to pick up where Katerina left off on the question of interim and provisional measures. Again, Katerina noted that this is a major, major duty of the vice presidency. I wonder what sorts of [00:11:00] guidelines, considerations guide your judgment about what sorts of measures are required in what sorts of cases. I was discussing with another member of the Court, the Commission v. Poland IV, where there were provisional measures. How does one decide between a million Euros a day? 500,000? Are there guidelines for this in the Court? Does one use one’s judgment?

Vice President Bay Larsen: One first and foremost uses one’s judgment in the case of these, since there were, I can say that I think without disclosing any deep secrecy, because there was no massive jurisprudence on interim measures and the size of the amount.

And so you, you look at what jurisprudence there is. And I think what I had to look at was that there was already a decision of, I think, [00:12:00] 800,000 Euros concerning the non-closure of a mine that had been ordered closed in another interim measure. But of course, if you have a long, existing jurisprudence, with a number of cases where fines or big fines, or big penalty payments have been involved, then of course you have to take into account that jurisprudence.

But I think when I decided on one million, that was not – it wasn’t easy to find cases of the same nature, you could say, fortunately, in a certain way, but, so then you must do what you think is right. That’s what I did.

Mark Pollack: Fascinating.

Vice President Bay Larsen: And, and when Poland implemented partially, I also reduced it [00:13:00] to 500,000.

Mark Pollack: This was when the disciplinary chamber was closed.

Vice President Bay Larsen: Yeah, there were a whole string of measures and Poland argued that they had at least done some of them at the time, if not all of them. And then I revised the decision and decided on a new measure. But again it could be that another Vice President had arrived at it – I mean, law is a human business and sometimes you can have long manuals or you can have piles of existing jurisprudence that – I mean, when I was a national Judge, if you had a case on without making a comparison, but a case on import of [00:14:00] hard drugs, I mean, then there is a rather detailed jurisprudence, I suppose, in every country around the world that you get a longer penalty if it’s 10 kilos rather than 1 kilo or, and if it’s 100 you get even longer, but perhaps not 10 times as much as for 10 kilos and so on and so forth.

So you can, you have a rather fine meshed net that you can try to put your current case in the right place in the matrix, but here we didn’t. I wasn’t in that situation. You can say fortunately or unfortunately, but so you have to start somewhere.

Mark Pollack: So one of the things that we discovered when preparing for these interviews is that the office of Vice President is one of the least, I think, understood [00:15:00] at the Court. And so the most visible duty of the Vice President, I think we’ve already talked about, is interim and provisional measures. What are the other elements of the vice presidency that are fundamental and that people should know about and that take up your days?

Vice President Bay Larsen: Well like the President, I am always a Member  – the Vice President at any time is also the stable Member of all formations of the Grand Chamber. So, whereas for the President – it’s normally only in the Grand Chamber that he sits, I would say, regularly. For me (and he doesn’t have – because he simply doesn’t have the time to, normally, in cases where he’s reporting Judge). On the other hand, he’s the one who appoints. [00:16:00] That’s one of his tasks and privileges, prerogatives, whatever you call it, to appoint the reporting Judge in each and every case. I am not involved in that, but I sit in the Grand Chamber like he does. If he falls ill or for whatever reason cannot preside the Grand Chamber, then it falls by default to me to do so.

But, but apart from that, we share, normally, the responsibility of replacing Judges who for whatever reason falls ill and cannot attend a hearing and falls out of a case. Or has to declare themselves not suitable to sit in this because they have a relationship or has done something in the past that could be perhaps in conflict with [00:17:00] judging the case.

So it’s quite often the President or me who goes in. Other Judges may do it, but then it’s the President who decides who should do the replacement. I don’t do replacements in this period because I’m apt to leave in October. And, therefore, it doesn’t make sense for me to replace anybody because if I’m here at a hearing tomorrow, I will not be there when the case is in all likelihood ready for deliberation.

So the President is awfully busy these periods between renewal of mandates or replacements, because he does an enormous amount of replacements in order to secure that there will be enough to fulfill the quorum to decide in each and every case, and other [00:18:00] colleagues who are staying after October assist him in this task.

Mark Pollack: This is one of the things that’s become quite clear to us, the run up to a change is a particularly busy time.

Vice President Bay Larsen: I mean, it’s always busy up to a summer holiday because everybody wants to do as much as possible before the summer holidays or before the Christmas holidays in order to get closure in as many cases as possible for the benefit also, not only for the statistics, but also for the people we respond to, to the national courts or to the individual parties.

But, we do our best, but it’s particularly harsh up to renewal of mandates or replacement of sitting Judges.

Mark Pollack: So I think we can pivot back [00:19:00] to some of the case law in which you’ve been particularly involved and you served as Judge rapporteur in several important cases concerning the interpretation of the Qualification Directive in the context of refugees who have committed serious crimes.

And these cases involve a delicate balance between the protection of fundamental rights and the need to ensure public safety. Could you share your insights on the key considerations and challenges in considering these cases? For example, how did you approach the proportionality assessment that’s required by the directive?

Vice President Bay Larsen: Well, in a certain sense, you can say that there is a proportionality assessment included in looking at the seriousness of the crimes that have been committed of, of an applicant for international protection. But it’s perhaps an area where it’s a little bit atypical in [00:20:00] the sense that you have a system which is essentially inherited from the Geneva Convention – that exclusion clauses, as we have them in the Geneva Convention, as we have them reflected in the Qualification Directive, are only relevant for people who actually otherwise fulfill the criteria for international protection.

Because if you don’t, if you are not a refugee in the sense of the Geneva Convention, if you are not fulfilling the need for at least subsidiary protection, well then you don’t need to look at exclusion clauses. It’s only for those who otherwise are qualified, or would be qualified as refugees. [00:21:00] And of course, the Geneva Convention only speaks about refugees, but we have the subsidiary protection regime added to, to enlarging a bit the scope of international protection.

But we have the same clauses that we don’t want to – I think part of the reasoning behind the Geneva Convention is that you don’t want historically, to give refugee status a bad name. I think historically it was, the Geneva Convention was created after the horrors of the Second World War, and the idea was that former members of the Waffen-SS should not seek and obtain protection, international protection, claiming refugee status, when they had committed [00:22:00] or were likely to have committed horrible crimes. What makes it delicate in, from a legal perspective, is it’s a little bit like I often say that there’s a built-in Goldilocks-type of dilemma in it, because you have to get the line between when you have committed these crimes, you have to get it absolutely right.

Because if you draw, when you draw this line, it means that if you are on the one side, you have committed something, but it’s not sufficiently bad to make you fall under the exclusion clauses, then the Member State is obliged to provide asylum, if we’re [00:23:00] talking about the Geneva Convention.

On the other hand, if you are on the other side of the line, that what you have committed is, or the applicant has committed, is sufficiently bad to fulfill the need to exclusion, then the Member State is obliged not to give asylum, not to provide the person with refugee status. So, those who are applying the law that are administrative authorities, but also Judges, they have to be able to get it like Goldilocks just right. Not too hot, not too cold, but just right. They have to know where this line goes because otherwise they will in one way or another make objectively wrong decisions, and that’s what I think [00:24:00] from a legislative technique point of view makes it delicate.

It’s a little bit like when national legislators say, “You must do this unless, by doing so, you violate fundamental rights or a specific fundamental right.” Then they kindly push the difficulty they are faced with as legislators, in the hands of the executive and in the hands of Judges, who are then going to draw that line which they for reasons which I can, you know, certainly understand, find difficult maybe to draw themselves. And so they don’t express it positively when you are obliged to do this and when you are obliged to do that. But they say, “You have to do this unless by doing so. . . “ That’s part of the difficulty.

But to come back to your question [00:25:00] on proportionality, I think there is an element of proportionality in drawing the line. But once you have drawn the line, I find it more difficult to see the next line, proportionality. Also because you should be, one should be aware of that saying that “You are excluded from refugee protection,” you should of course only do that when you must do so, because otherwise you miss the Goldi- or you fall wrongly in the Goldilocks thing.

But then it does not mean the same as returning, taking a return decision. There may be a distinction that you can provide some other form, or you at least have to decide, but can I, should I return this person who otherwise fulfilled the criteria of being a refugee or [00:26:00] somebody requiring protection, maybe with diminished rights, and maybe with a different regime but it doesn’t mean, and that can be, of course, then also a proportionality assessment but linked to the next decision, should we return or should we not return? I think sometimes a risk in the debate that people see the question of exclusion as synonymous with the idea of returning a person concerned.

Mark Pollack: Mm hmm.

Vice President Bay Larsen: So there can be some bits in between, the Court has said in that you should be careful in national, you can do that in national law have another regime, but you should be careful that you put it on a banner that doesn’t confuse and make people believe that it’s actually identical or quasi identical to [00:27:00] refugee status because then you have not respected the Geneva Convention.

Mark Pollack: I see, I see. If I can switch gears and talk a little bit about data protection, which has been one of the busiest areas, I think, of the Court in recent years and ask you specifically about the Schrems cases, which dealt with the tension between the fundamental right to privacy and the need for cross border data flows and some I think largely in the U.S. have argued that the CJEU seems to give more deference to EU government surveillance as opposed to U.S. government surveillance as opposed to Chinese government surveillance. And so I wonder, should the Court apply different levels of scrutiny to surveillance conducted by different governments or different kinds of governments or similarly should the Court distinguish between data harvesting by private party parties like [00:28:00] Facebook in the Schrems case or government surveillance?

Vice President Bay Larsen: I think the Court has made a distinction in between private and public, but have also been quite clear that, that it’s not an absolute right to harvest whatever, be it a government or a private enterprise.

On one hand there is a need for, to be able for everybody to exchange at least some data, to speak of it very abstractly, and for me it’s also clear that you cannot have an absolute insistence that every other state should have identical levels [00:29:00] of protections and means of protection to what you happen to have invented in your own jurisdiction.

That, for me, would not be a viable point of departure, to say everybody must do exactly like we do. And of course there are differences; there are various differences between European tradition and also American tradition, even though it’s the same technology. But apart from that, I must say I hesitate a little bit to to develop grand theories on this or other subjects because there’s a need, obviously, of cooperation, including law enforcement cooperation. And the reality is that communication and industry and people move across borders, and most people will hope that they can [00:30:00] continue to do so in one way or another. But I mean, with the Court, and I think individual Judges normally should not and would not have strategy working programs for what they want to do for the next 10 or 15 or 20 years or 15 months because technology moves rapidly.

We’re trying as always as lawyers to, to catch up with the fairly recent developments and solve the legal, new legal difficulties that arise. And I think we do that by nature one case at a time. And sometimes, like we did in our La Quadrature du Net, we realize that the latest La Quadrature du Net, that there is maybe reason to, to reconsider certain elements of our jurisprudence.

And [00:31:00] then we try to find a new way forward and to develop that jurisprudence. But, but it’s not that we have a working program and now we, this decade we will do this – that is for good scholars to look backwards, like courts normally also look backwards on what has happened in the last year or two or ten or fifteen.

But not looking anyway, that’s what, in a better world, legislators perhaps more should try to do, but even for them it’s very difficult. And we – I mean, if you look at, at the copyrights, the international intellectual property rights – we use the instruments, we have lawyers use them, legislators and development on the basis of a certain technology at a certain moment and then [00:32:00] comes a new technology and we think, “Yeah, but what about the virtual, and the books, the audio books, the internet books,” that, “How do we look at them and how should that be put into the existing framework that didn’t even think of it?”

And I think we, we have to do, to do it on our part, on the basis of the law that we have to the extent that it’s possible taking into account new developments, but we have to be careful. It’s difficult to give predictions, especially about the future .

Mark Pollack: Well, then let me take you to another line of cases and another set of issues.

You were Judge Rapporteur in the landmark Weiss case and you played a key role there in assessing the validity of the European Central Bank’s public sector purchase program the PSPP. [00:33:00] And this judgment sparked an unprecedented reaction from the German Federal Constitutional Court, which in its own PSPP judgment openly challenged the CJEU’s rulings, and so I wonder how you reflect on this episode of judicial dialogue, if indeed that’s the word for it, and what lessons we can draw from that case about the balance between the CJEU and national constitutional courts.

Vice President Bay Larsen: I think we all have different roles and the Court of Justice has one role and that is to interpret and apply Union law. And that’s what we did, also in the first reference in the same line from the [00:34:00] Bundesverfassungsgericht in Karlsruhe in the Gauweiler case.

And then again in the Weiss case, we interpreted European Union banking law as we saw it. And national courts have, they are also applying Union law day to day or occasionally, but actually, often they apply Union law more regularly than they are, and I don’t mean that in any negative sense, that sometimes they’re not even aware that they’re applying Union law because they’re applying the national implementation of Union law.

And, if that is in perfect harmony with Union law, then all is good. And otherwise they have the ability to ask questions on the interpretation of Union law. And what [00:35:00] I think happened in the Weiss case, and, well, it also, there was an element of it in the Gauweiler case, perhaps, that the German Constitutional Court, a little bit reluctantly, perhaps asked us of our interpretation.

And then they got our interpretation, which clearly from judging from what they wrote in their decision to ask the question and that is always very welcome that a national court explain and German courts are particularly good at doing that and it’s excellent for us, not only because we get their view or we get their view of their interpretation of Union law, because by that they also inevitably explain how they see the interplay between national, in this case German law, [00:36:00] and Union law. Then we give our interpretation of Union law, and the Gauweiler case they also then apply it, perhaps with limited enthusiasm, I don’t know – or I think I do know. Be that as it may, that is not what they did in the Weiss case.

The Court exceptionally sent a press release following the German decision in the case and, that’s what caused the incident that happened. The German Constitutional Court said something which could be summed up saying, Well, we believe that the decision that the Court in Luxembourg has taken is incomprehensible and wrong to the extent that we are able to understand it, we think it’s wrong. And in any [00:37:00] case we then will take back the competence that the German Federal Republic has conferred upon the European Union by the treaties. We take it back and then we exercise this, since the Court won’t do it in a way that we like or can understand or both, then we’ll do it in a different way ourselves.

And, and that for me is the element that cannot fly, could not fly then and cannot fly today.

Mark Pollack: So I wonder, it’s been several years how you see the, the ongoing dialogue between this court and the national courts in light of that. Where are we in 2024?

Vice President Bay Larsen: I think basically we are where we have been, that occasionally we have situations where [00:38:00] supreme or constitutional courts of Member States, well, would have wished that they had got another reply to their question than the one they got. That is perhaps still uncommon for Supreme Court. But it’s every-day life for private parties and going to court. And sometimes everybody leaves a court building without being fully happy. It’s a fact of life. We took the decision that we thought was correct, and which personally I think is correct. And gave the interpretation of the decision.

And for me, that’s also something – I did three years at the national [00:39:00] Supreme Court before I was allowed leave to go here and serve as a Judge for the rest of the time that I would otherwise be spending in the Supreme Court in Copenhagen. It’s a fact of life that when you are a Judge, you cannot always have entirely happy customers to all sides.

If you can’t live with that then you should find another job. And I have been very pleased to be here for almost 19 years, so I live fine with it. And I accept that sometimes you have frustration, but then it’s better to talk together. And of course that’s a difficulty when you have to write, because of course when you are in a judicial procedure, you more write to one another.

[00:40:00] But we have had an excellent dialogue with the German Constitutional Court both before and after these incidents. I will not say that there was – perhaps a time when it was like a free and frank exchange of views. But we have, as I see it, a good cooperation in general with the German constitutional courts and even among best friends, you sometimes cannot be entirely in agreement on everything.

Mark Pollack: Right. Thank you for that.

That’s really fascinating. So just one more question, if I can, in this line, not about judicial dialogues but more about how the CJEU’s jurisprudence during the Eurozone crisis has perhaps been [00:41:00] crucial in shaping the EU’s response to financial crises since then, potentially to financial crises in the future.

So with the benefit now of hindsight, how would you assess the Court’s approach in balancing the need for effective crisis management in the moment with the constraints of the EU treaties, the principle of democratic accountability? This is obviously a set of issues that the Court is going to have to deal with as a result of the fallout from the COVID-19 pandemic, the implementation of the NextGeneration EU recovery package.

So where do we stand in terms of how this court manages the exigencies of crisis governance?

Vice President Bay Larsen: That’s very, very difficult to give a general answer to. If I’m going to say anything on it, I would say that it’s a [00:42:00] kind of dilemma between a rock and a hard place. You need to secure a necessary level of judicial control, even in time of crisis. But you also have to strike a balance between being part of a solution or being part of the obstruction to a solution. And I think that it’s not easy to give a much more precise answer, but I would say if you go too far to one side, well, then you dispense legal guarantees that should have been in place, even in very difficult and hard times. If you go too [00:43:00] long in the other direction, then you become part of the problem and not part of the solution.

And if you are in a house that is on fire, you I think you normally get out of the house and start pouring water on the thing. And then you take the discussion with the insurance companies and the constructors and who did what and should have done differently in hindsight at a later time. But that’s just my private, very general, imprecise observation. I have some, as you can hear, some sympathy for those who say when [00:44:00] you are under if not nuclear, then a real military attack, well then you beat the enemy and then you look at whether or not the preparations were optimal or what we can learn for the future and if some mistakes were made in the process, in the next phase.

And I’m not sure Judges are the best suited to micromanage neither war nor epidemic but not to say that there isn’t and shouldn’t be a legal protection and some rights to be respected. I mean, [00:45:00] again, we are a Union, which is also in these areas united in diversity.

And by the way, when we talk about the pandemic, you will also see here we are in an area where before the pandemic, the Union was largely without real or very strong competence. What was on human health and is on human health in the treaty is not very much. Had it been a disease among chickens, or pigs, or cows, then you have a whole string of measures. You have a huge building of some general directorate in Brussels with experts who have emergency plans in their drawers to pull out. And you have national authorities who are coordinated largely by Brussels to put them into immediate play and seal off [00:46:00] whatever sectors.

But when it’s humans, human health, that is the first line, then Member States have traditionally thought, for reasons I can certainly understand, but perhaps which in hindsight, where maybe it would have been better to also pool a bit more competence in that field, because then we might have had – I think Member States quickly found out that this needed a more coordinated response.

So they invented something largely on the spot and they could use the meeting facilities, but they didn’t have the skyscraper filled with experts that could immediately press print or send on their computers. They had to invent it, and I think they improvised surprisingly well. But, [00:47:00] because nobody had really foreseen this to be so bad a situation but still we do it differently in different Member States and that is one of the strengths of the Union that we say united in diversity.

Sometimes it can also be a little more tricky that way.

Mark Pollack: So this is an area where the Court is going to have to keep striking that balance case by case.

Vice President Bay Larsen: Yes, I think so. Because if we are in an area which is completely without competence for the Union, well, then there is no competence for the Court either.

The principle of conferral of powers applies to the whole of the Union, including the Court. So if the treaties doesn’t give us the power to scrutinize in a certain area, then we have to [00:48:00] say, sorry, this is not our business. We have not been conferred powers because principle of conferral also applies to the Court.

Mark Pollack: Fascinating. Well, I’m mindful of your time, and I’m also mindful of the old expression that one knows the Court through its case law, through its jurisprudence, but one of the reasons why we’ve been here this week, one of the reasons why we’re having such an interesting time, is that there’s more to learn by talking to the Judges, to the Advocates General.

And so I want to end with two questions, on a little bit more personal note, one about the past, one about the future. And so over lunch, you were telling us a little bit about your path to the Court and without putting the burden on you of taking us through that entire path, I wonder if you could tell [00:49:00] us whatever you think is most relevant about your path.

Either to EU law or to this Court or, or maybe both.

Vice President Bay Larsen: Well, I don’t know how to answer that, but I’m a little bit colored by a visit I paid to the University of Maastricht on a Saturday a few weeks back, where they had a career day. And all the young, very disciplined students I think were shocked when they asked me about my far from direct route to law and that I was 25 when I started studying law and consequently graduated only at the age of 30, and I tried to [00:50:00] explain to them that it’s not always – I’m not saying everybody should fool around to the extent that I did, but doing something else in the end doesn’t matter so much. And that the straight route is not always the best. And that something, like Mr. Micawber used to say, will always turn up. Or is likely to turn up at, at some point. And yes, life is what happens when you’re busy making other plans.

But many young people today that you meet at universities, they almost feel paralyzed by the fear that if they fail this test or they get delayed three months at that point, then it’s going to be disastrous for the rest of their career.

[00:51:00] There are only half as many young people in Western countries as there used to be. I wouldn’t be so worried that they will find good jobs. Maybe, I don’t know, doing what. I mean, you can make all kinds of plans, but something else is likely to – you have to adapt your plans and your view.

Mark Pollack: So this brings me to my last question. You are as you said, leaving this court after 19 years. I wonder what you see as the primary issues, challenges, opportunities that the Court faces in the coming years.

Vice President Bay Larsen: That I leave happily to my successors to meet these challenges, but I think the Court probably [00:52:00] wisely will not start developing what it hasn’t or to my knowledge courts should normally not do: develop action plans, programs. It’s in the nature of being Judges as I see it, at least that you deal with the cases one at a time when they come in and you tell the law of the land. That’s why you are there. And you try to keep coherence in your jurisprudence as best you can, develop it when it deserves to be developed, but you don’t build castles in the sand about what to do in 10 or 15 years.

There will be people to do that who are younger than me. So that is the least of my worries.

Mark Pollack: Well, [00:53:00] that seems an excellent note on which to end. Vice President Bay Larsen, thank you so much for talking to us.

Vice President Bay Larsen: It was a pleasure.

Katerina Linos: I hope you enjoyed this conversation. I personally was fascinated with Vice President Bay Larsen’s discussion of some of the most high-profile and important decisions that he himself was involved in as reporting Judge. For example, we spent a good bit of time discussing data privacy and data retention cases that have proven really important to American tech firms.

We talked about the so-called judicial dialogue between the Court of Justice and the German Constitutional Court, about the limits of the powers of the EU institutions, and about the so-called competence [00:53:00] question. That is, which court gets to decide whether and when the EU is staying within, or exceeding, its delegated powers. You’ll also hear his thoughts about the future of the Court and his advice for young lawyers embarking on their own careers in European law.

If you enjoyed this episode, I hope you share it with your friends and give us lots of stars. If you’d like to see more, the show notes have links to key cases, to the many people who contributed to the series, and to speeches and other resources for scholars and students of European law.