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 #5 features CJEU Advocate General Tamara Ćapeta discussing her opinions and perspective with Professor Linos and Professor Pollack. Advocate General Ćapeta was appointed as the first Croatian Advocate General to the European Union Court of Justice in October 2021. She illuminates the role’s crucial function in Chambers which issue only unsigned, unanimous decisions. Advocates General write opinions and typically offer solutions in novel cases to help Judges grapple with the issues. Advocate General Ćapeta explains why it’s both solitary and liberating to express her solo views on crucial legal issues before the Court.
Advocate General Ćapeta is the first of seven Advocates General that were interviewed for this series. She comes to the Court with a deep background as a legal scholar and legal realist who believes that judges retain some choice in how they rule.
Advocate General Ćapeta is also the Jean Monnet Chair in European law at the University of Zagreb, where she was one of the founding members of the Department of European Public Law. She earned her Ph.D. in Law at the University of Zagreb in 2001, and her LL.M. degree from the College of Europe, Bruges in 1993. Her work experience includes teaching economics at the University of Zagreb, being a research fellow at the Institute for International Relations, and working for the Ministry for External Affairs. In 2006, she was a post-doc Fulbright scholar at the University of Michigan Law School and has held serval Visiting Scholar positions.
She is the founder of the Croatian Yearbook of European Law and Policy and was its editor-in-chief from 2010 to 2015. She has authored several books and a number of articles in the field of EU law. Her research interests include the judiciary in the EU, especially the questions of judicial interpretation of law and legitimacy of courts, as well as the constitutional aspects of European integration.
Cases and sources mentioned in the podcast:
· Links to C‑396/11, Ciprian Vasile Radu case re European Arrest Warrant and police notifications
https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62011CJ0396
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62011CC0396
· Links to C-159/20, Commission v. Denmark [‘Feta’] case
https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-03/cp220047en.pdf
https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-07/cp220125en.pdf
· Links to C-330/22, Friends of Irish Environment case
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62022CC0330
https://curia.europa.eu/jcms/upload/docs/application/pdf/2023-06/cp230103en.pdf
· Links to C-23/23, Commission v Malta, conservation of wild birds case
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62023CJ0023
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62023CC0023&qid=1731381001275
· Links to joined cases C‑778/21 P and C‑798/21 P, regarding EU trade agreements with Morocco and their application to the territory of Western Sahara
https://curia.europa.eu/jcms/upload/docs/application/pdf/2024-10/cp240170en.pdf
https://curia.europa.eu/juris/document/document.jsf?text=&docid=284121&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=5280293
https://curia.europa.eu/juris/document/document.jsf?text=&docid=290676&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=5281536
· Link to European Public Prosecutor’s Office
https://www.eppo.europa.eu/en
· Links to C-281/22, G.K. and Others, the European Public Prosecutor’s Office case
https://curia.europa.eu/jcms/upload/docs/application/pdf/2023-12/cp230208en.pdf
https://curia.europa.eu/juris/document/document.jsf?text=&docid=274882&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=8346456
· Links to C-106/222, Xella Magyarország case
https://curia.europa.eu/jcms/upload/docs/application/pdf/2023-07/cp230124en.pdf
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62022CC0106
· Link to EU Charter of Fundamental Rights
https://fra.europa.eu/en/eu-charter
· Link to C-507/17, Google v CNIL, the Right to Be Forgotten case
https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-09/cp190112en.pdf
· Link to General Data Protection Regulation
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679
· Link to Edward Snowden leak case documents
https://nsarchive2.gwu.edu/NSAEBB/NSAEBB436/
· Link to C-35/20, A (Border Crossing in a Pleasure Boat); the Obligation to Carry a Valid Identity Card case
https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-10/cp210172en.pdf
· Link to European Union regulatory framework on Artificial Intelligence
https://www.europarl.europa.eu/topics/en/article/20230601STO93804/eu-ai-act-first-regulation-on-artificial-intelligence
· Link to Treaty of Nice
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12001C/TXT
· Link to transfer of jurisdiction in six areas from European Court of Justice to General Court
https://curia.europa.eu/jcms/upload/docs/application/pdf/2024-08/cp240125en.pdf
· Link to EU Emissions Trading System documents
https://climate.ec.europa.eu/eu-action/eu-emissions-trading-system-eu-ets_en
· Link to Advocate General Ćapeta’s opinion in C-60/23, Skatteverket v Digital Charging Solutions case
https://curia.europa.eu/juris/document/document.jsf?text=&docid=285205&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=295027
· Link to Advocate General Ćapeta’s opinion in joined cases C-29/22 P and C-44/22 P, KS and KD v Council and Others, EU Common Foreign and Security Policy measures
https://curia.europa.eu/jcms/upload/docs/application/pdf/2023-11/cp230179en.pdf
Select Speeches and Publications by Advocate General Ćapeta for further research:
- Links to Eleventh Europa Lecture given by Advocate General Tamara Ćapeta,“70 Years of Advocates General at the Court of Justice of the European Union,” June 8, 2023, Leiden University
https://www.universiteitleiden.nl/en/news/2023/06/eleventh-europa-lecture-tamara-capeta-on-the-role-of-advocates-general
https://www.youtube.com/watch?v=hIZpNNxJCZE
https://www.universiteitleiden.nl/binaries/content/assets/rechtsgeleerdheid/instituut-voor-publiekrecht/europees-recht/europa-lecture_tamara-capeta.pdf - Link to Advocate General Ćapeta’s articles in the Croatian Research Information System https://www.croris.hr/crosbi/searchByContext/2/6366
- Link to Advocate General Ćapeta’s SSRN publications
https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2888860
Citation: Linos, Katerina and Pollack, Mark. Episode #5: Interview with Advocate General Tamara Ćapeta. Borderlines podcast, European Union Court of Justice Series (Jan. 21, 2025). https://www.law.berkeley.edu/podcast-episode/european-union-court-of-justice-series-interview-with-advocate-general-capeta/
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Episode Transcript
Katerina Linos: [00:00:00] 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: This is our series of interviews conducted in summer 2024 with Judges and Advocates General of the Court of Justice of the European Union in Luxembourg.
Little is known about the backgrounds, careers, and personalities of the key decision-makers on Europe’s highest court, and we hope to create an archive to shed light on these jurists.
In our last episodes, we interviewed Judges Koen Lenaerts and Lars Bay Larsen, the President and [then-] Vice President of the Court of Justice. In this episode, we’re going to share our interview with Tamara Ćapeta, a longtime Croatian legal scholar who’s currently serving as Advocate General at the Court of Justice.
Mark Pollack: As we’ve mentioned in previous episodes, the [00:01:00] position of Advocate General at the Court of Justice is poorly understood, and it has few analogues at other domestic or international courts. Basically, at the Court of Justice, there are 27 Judges who serve on various Chambers, and those Chambers rule per curiam with no separate concurring or dissenting opinions, leading to judgments that tend to be brief and formulaic with none of the vigorous back and forth that we associate with common law legal decisions and dissents. In that context, the original EU Member States created a special position at the Court, namely, the Advocate General.
The AG is a full Member of the Court, but operates outside the judicial chambers. And the assigned function of the Advocate General is to take a first look at legally novel cases, to explore the legal issues and the legal precedents raised by them, and to issue an opinion, a public opinion, that is designed to help the Court, which is to say the Chamber Judges, grapple with the issues.
Katerina Linos: The Advocate General [00:02:00] typically recommends a solution to the case, and in about 85 percent of all cases, the Judges broadly accept that recommendation. But in about 15 percent of the cases, the Judges go a different way, which provides a rare window into the various different ways that the Court might have gone in such cases. Advocate General Ćapeta is the first of six [seven] Advocates General that we interviewed for this series. In this episode, you’ll hear her describe what the life of an Advocate General is like. As you’ll hear, the position of the Advocate General can be somewhat lonely, insofar as she does not deliberate with her fellow Judges. But it can also be liberating, because the Advocate General, unlike the Chamber Judges, can speak very much in her own voice and weigh in on important legal questions that the Chamber Judges might choose not to engage in, or engage in only obliquely.
Mark Pollack: Advocate General Ćapeta is also particularly interesting, because in her previous life as a legal scholar in her native [00:03:00] Croatia, she was, and remains, a self-identified legal realist who believes that neither the wording of the law, nor the canons of legal interpretation, determine the outcome in any given case, meaning that the Advocate General and the Judges always have some degree of choice in how they rule.
In our interview, we talked to Advocate General Ćapeta about how this legal philosophy informs her work at the Court, where her opinions often conclude not with a single correct ruling on the legal issues at hand, but with a carefully considered set of alternative positions that the Judges could take, each backed by careful reasoning.
It’s a fascinating discussion, and we hope you’ll enjoy it.
Advocate General Ćapeta: Hello, I’m Tamara Ćapeta. I’m Advocate General here at the Court of Justice since three years ago, and I have three more years to go.
Mark Pollack: Advocate General Ćapeta, thank you so much for speaking to us today. It’s an honor to have a chance to talk to you about your role, your [00:04:00] responsibilities, your experiences here at the Court of Justice and about some of the cases in which you’ve offered opinions over the last several years.
Before we get there, I think we’d like to start at the beginning to understand what drew you to European law, and then eventually to the Court. And you began your legal studies in Croatia at the University of Zagreb with your initial law degree in 1991 and your PhD at the same institution in 2001.
But in between those two degrees, you took a degree in European law at the College of Europe in Bruges in 1993. I wonder if you could tell us a little bit about that particular moment in your life and the development of Croatia’s relation to the EU and what EU legal studies was like back then.
Advocate General Ćapeta: Well, you know, many things in life happen by chance. Some call it fate. So too has my entry to the world of the European law. At the very end of [00:05:00] this basic legal studies in Zagreb, then-young assistant in constitutional law, whom you met here at the Court and interviewed, as far as I know, Professor Siniša Rodin, who is now a Judge at the Court.
He came to me and told me that he just received a poster about a nice Master of Studies at the College of Europe in Bruges, and why don’t I apply? [Laughter] Okay, of course, at that time there was no even mention about EU law – there was no EU yet, European Communities law then – at my law school.
And because my studies actually take place in the transitional time from socialist law towards market-based economy, so it was a mix of different things. I lived in the transitional times in a way. However, already as a student I was interested in international law and so on and I did know that I want to go out of the confines of [00:06:00] national law.
So I applied, as Siniša proposed, and I was accepted, and I got the scholarship, and I went to Bruges. And my first encounter with European law made me fall in love [laughter], fall in love with that legal system. Not only with law, but also with the entire idea of the European project. And it was from that moment on that I more or less decided that I wanted to pursue my career in the field of European law.
Mark Pollack: I know that you then began your career as a civil servant in the Department of European Integration in the Croatian Ministry of Foreign Affairs before then returning to academia as a professor in the Department of European Law at the University of Zagreb and as a founder of its Jean Monnet Center for Excellence.
I know that during that period you taught and collaborated with many of the [00:07:00] leading scholars in Croatia of EU law. I wonder if you could say a bit about what it was like to teach and mentor Croatian students in that setting.
Advocate General Ćapeta: Well, first of all, establishing a department of EU law was really exciting times.
It was again Siniša Rodin, who then was still attached to the Constitutional Law Department, who received our first Jean Monnet project, which was then Jean Monnet module, to teach European Union law, European law. And then he invited me to come and join him and teach jointly with him. But I was working at that time at the Faculty of Economics, so I was happy to, to get there and to start teaching with him. And you know, little by little, then we managed to turn one elective course first into a Department of European Union Law, and Tamara Perišin, who is now judge at the General Court and Iris Goldner Lang, who is currently head of the Department of EU Law in Zagreb, [00:08:00] were there with us from almost very beginning.
And it was a struggle as well to persuade people in the 2000s, at the beginning of the year 2000, that we need the department for European Union law, and I have to say that the Jean Monnet project helped us with that a lot because we had a module and then another module and then a chair. And that was the argument that it’s good for the faculty, also, to have the European law in. And of course, there was a political consensus in the country, that the country wants to join the European Union. So it was clear that European law will be needed sooner or later.
But of course at the beginning, we were far from the Membership still, so it was very difficult to explain to people why would they at all learn something like European law. So our curriculum at the beginning was more concentrated on the accession phases, the association agreements, and all this, [00:09:00] even though throughout, from the beginning, till the end, till now, actually, what we wanted to transmit to the student is the big picture, the idea of how European Union is constructed, how European Union law functions. And then the topics on which we were trying to explain this were changing, even though we always had the internal market as the starting point.
And then, you do know that even though EU law is not a common law system, it is largely developed through cases. And so this is how we were teaching, of course, EU law from the very beginning, through case law. And that was really exciting for students. It was a change for them from the usual ex cathedra teaching, in which you learn and then you reproduce.
And so we developed our method in which we required students to, as in the U.S. universities, [00:10:00] come prepared for the classes, to read the cases we are going to discuss, and then we discuss that with them. And we tried to develop in them some critical thinking about any part of the EU law that we were discussing, and little by little build their knowledge and their point of view about it.
I think that we were quite successful in that. In time we built also the network, the links with the, let’s say, international community dealing with EU law. So in time EU law department became well known, and embedded in the European academic world. We developed our seminar, which is still going on in Dubrovnik for 20-something years, which has the title “Advanced Issues of EU Law,” and then changes the topic every year.
It was mostly meant for the young researchers, people on the way to the doctorate, or just young post-doctorates to present [00:11:00] their research there. And many of them today teach around Europe at different universities. So, yeah, I think that was a successful story about the establishment of EU Law Department. And it continues today still. The department there is still continuing this good work.
Mark Pollack: Then let me pick up exactly on your legal scholarship. And so as a legal scholar, you are well known as an advocate for legal realism and as a critic of legal formalism as a means of studying European law and the European court specifically.
And I find this fascinating, because as you’ve pointed out, so much of the mythos of the Court of Justice is that there’s one scientifically objective reading of European law, which is precisely what legal realism denies. In fact, I’ve heard many judges over the years say that one important reason why the Court should never have dissenting opinions is because it might [00:12:00] give the mistaken impression that there was an alternative reading of the treaty, right?
So you take a very different view. But I’m wondering how you apply this to your own work and the work of the Court because legal realism is often seen as an external critique of jurisprudence and not a guide to the internal production of jurisprudence.
Advocate General Ćapeta: Well, thank you for this difficult question. [Laughter] Maybe I first have to explain what I have as the idea of legal realism. What I believe that today distinguishes legal realists and legal formalists is not that the law is not determinate, because I think that everybody today would actually say that, of course, legal rules are not so clear and they’re not immediately applicable.
But what is distinguishing the two is their belief, whether there is a correct or right answer in law. This is, for me, the big distinction. [00:13:00] The legal formalists of today, how I see them, they actually see that this correct answer exists. And even though the law is indeterminate, the way you reach this correct answer is by applying the methods of legal interpretation which are given and which are going to lead any judge to this correct answer. And this is where I think that the distinction exists, because legal realists would say that these methods of legal interpretation are equally indeterminate and that in the end the legal answer depends on the choices.
So how I see legal interpretation is that it is actually the matter of choices made by those who have the authority to make choices. So, of course, there is going to be a right or correct answer in EU law, once the Court of Justice gives it. But not because [00:14:00] this was the only possible answer, but because there is a court’s authority and the structure of the European legal system that gives to the judgment of the Court of Justice or the interpretation of the Court of Justice this position.
I just have to say also that this doesn’t mean that this interpretative methods don’t have any use. You very well know that our court explains that it interprets according to the wording, context, and purpose. And every textbook is going to say that these are the methods used by the Court of Justice.
And I, of course, agree that wording is the starting point. This is what we lawyers work with, no? You cannot invent something. There is a wording from which you start. However, wording, not only in law, but [00:15:00] generally – words very often do not mean much outside of the context. So they can change their meaning depending on the context.
And that means that we, at the Court, we have to decide what is the context for those words. And the context can be very different for different people. And the same goes also for the purpose, no? What you understand that the purpose of certain rule is, the wording that is put in the context of that purpose might change. So in the end, as purpose and context are not that easy to discover, in the end, this is also the choice for the Judges, no? So the Judges do have to make their choices.
Not everybody will admit that there might be different answers in law. Everybody would admit that we do not expect that the Judges will always come to the completely same decisions.
Katerina Linos: [00:16:00] Can I interject with a follow-on question? In the United States today, and I think in more traditional international courts, the idea of purposivist or teleological interpretation is seen as a radical departure from textualism. In the U.S., we’re going to originalism, so we’re going to the other extreme.
The Court of Justice has had some major cases from its early years that do in fact use teleological approaches. Are there any recent cases that you would want to point our listeners to (we’ll link to the show notes), where you see purposivist or textualist conflict, where you see teleological interpretation in an interesting way so that we can focus on those cases?
Advocate General Ćapeta: Well, to tell you one thing, I think that the Court is almost always going to justify its decisions with both texts and purpose, and [00:17:00] context. What I actually think that is happening is that text-purpose-context are not rules that are leading courts to the solution. They are justificatory instruments.
But as justificatory instruments that are expected from the Court, they obviously do constrain, or maybe do guide, the path towards a decision, you know? And then you might start from some idea about how the case should be resolved. And then once you go and you dig into legislative history and what might be the purpose there, and what might be then the context, and so on, it might even change your opinion or show you that what was your primary idea how the case should end, is maybe impossible given all these other things that you have learned in the meantime.
You are asking whether a purposive [00:18:00] approach is something that is very different from anywhere else. I think that the purposive part is only the justificatory. It doesn’t mean that during the thinking about how to interpret certain rule, the Judges are not thinking about the purpose. Of course they do. But, as I said, the purpose is the choice. But in the end, in the judgment as you will find it, you will have the purpose that is backing up the solution that was adopted by the Court.
Mark Pollack: You delivered last year the annual Europa Lecture at the University of Leiden, which is called “70 Years of Advocates General at the Court of Justice of the European Union,” which is one of the most open discussions of the subject I’ve ever heard. So I think we’d love to ask you a few questions that come out of that lecture about the role of Advocates General in the Court.
Actually, my first question here comes out of what you were just talking about because in that talk, you said that [00:19:00] everyone agrees that the role of the Advocates General is to assist the Judges at the Court by offering reasoned opinions, but that there’s a difference of views among the Advocates General – about what that means, whether it means advising the Judges about “This is the right interpretation,” or advising the Judges, “These are your options.” And having spent much of the last month reading your and your colleagues’ opinions, it strikes me that – and this might have to do with your legal realism – you are much more likely than, I think, most other Advocates General to say, “There are several possible solutions, but here’s my favorite,” or “This is my favorite, but there’s an alternative and I’ll tell you about it.”
Can you say a little bit about that?
Advocate General Ćapeta: Sure. First, of course, it goes without saying that the reason for the existence of Advocates General is to help the Court. So the Judges are, of [00:20:00] course, our first audience. That said, what actually means “helping the Court”? And what I have to tell you is that this kind of discussion was never – we never had it in the Court, at least since I was here. And I actually think we do need such a discussion and I’m trying to provoke it. [Laughter] Okay? So, when I was thinking about what to say at this Leiden lecture, I also spoke with some of my colleagues, and then I realized that we really don’t have the same opinion about what is our good service to the Judges.
Some think that what helps judges best is that we just produce a judgment type of opinion. So we give our point of view how the case at issue is to be resolved with the arguments that go together with it. And then the Judges take this opinion and then they [00:21:00] can take simply a position towards that opinion: “Yes, we agree,” or “We don’t agree.” And this is how their discussions start. Or, there is another possibility, and this is that you provide for all the options that you have found, or you have thought through; embed them, of course, in the real life as well; and think a little bit about what is the consequence of one and what is the consequence of another one.
And then, as we can’t avoid actually giving our answer, giving our position as well, choose one, but offer more solutions. But this makes maybe job of judges more difficult because it is not a simple start of the discussions in which they can just take positions and go from there. But it maybe makes it more difficult to organize their discussions.
And this is something that I don’t know. I personally believe – and I do try to do that, to have my opinions [00:22:00] offering more options – but to tell you the truth, I’m not certain whether this is what the Judges would choose. Which is why we probably need to have this discussion. I would be sad if they say no, because then I would have to change something.
And now your question about whether I really do it. Well, I have to say that I do try, but I probably do not always succeed. And I can tell you that there are sometimes cases in which it is really, maybe just more efficient to just provide one solution because it is so obvious that maybe the other one doesn’t work.
But whenever I can, I’m trying to do that. But we do have some limits and maybe two most important limits are time and page limit. We have both. Time plays a big role as a constraint for an Advocate General as we do [00:23:00] have the deadlines, okay? And this differs very much from the job of academic publishing, for example. Because I had come with that idea to the position of the Advocate General, because when you are publishing in the journals or so on, you can first of all always decide, “Well, I’m not going to offer it for this volume. I’m going to postpone it till the next one.” Or if you have an editor, then you can always negotiate a few more months. Here at the Court, we don’t have that benefit. Once we announce our deadlines, we have to be done with our opinions by then.
And the other thing is that there is also an internal rule on the number of pages. And this rule exists for more reasons, but maybe the most important is again, time, that is, this time necessary for translation, but also the time that the Judges can spend in reading our opinion. [00:24:00] Coming both of you from academia, you do know that it is much easier to write more pages than to write less pages.
So, in a way, page limit constraint comes into collision with the time limit one. And to have less pages and the good quality of text – which would be the text which clearly explains what you wanted to say to judges, no? – sometimes it is just makes it impossible, you know? To really say everything that you would like to say in the opinion and to really read everything that you would like to read in preparing the opinion.
This is why I probably don’t succeed always to implement in my opinion what I believe is the good opinion.
Mark Pollack: Building on that, in your Europa Lecture, you briefly discussed the audiences that one can [00:25:00] imagine when you are writing your opinions. And so, obviously every Advocate General will say the primary audience is the Judges.
But I wonder if you could tell us a bit about your imagined audiences. Beyond the Judges, who are you writing for?
Advocate General Ćapeta: I think that it is clear from my previous answer that I also think that obviously judges are our primary, necessary, and most important audience.
And because of this, also the language of our opinion sometimes is such that it addresses the Judges. First of all, because judges have to spend the least possible time to understand what we are sending them as a message. And therefore, sometimes, you know, using this – I cannot say beautiful, but not-beautiful, legal language, which is very often formulistic sometimes helps and sometimes we use it because it is a shortcut to [00:26:00] transmit the message to the Judges.
But you will see that sometimes when we are even using those phrases that are shortcuts, additionally to this, we explain issues or quote case law that goes with that, even though this is not really necessary for judges; they know it.
I will give you one example. You know that in preliminary reference procedure, the Court can only answer the question if the answer is going to be useful for the referring judge.
So the judge has to be in a position to use it in deciding the main case. And we very often say that, and we very often refer to the case law, and this was already said several times. This is really not necessary for judges. They do know that. So obviously this goes for other audiences. So one of these other audiences are national judges, who asked the question.
So we sometimes feel that there are certain issues that we need to elaborate more, because it is [00:27:00] going to be useful for the national judge once it gets the judgment back. But may be, not everything is going to be in the judgment. Then the Judges can learn more from the opinion itself.
So this is one audience. I don’t think that our audience is a lay public. I think that our audience is a legal audience, but a very vast legal audience. And many of them are not professionals in EU law. And they also need more explanations because of this in our opinions. And finally, of course, our audience is academia.
And what I’m trying to do, and I believe also all my colleagues, is to, because of this, keep our texts also, let’s say, less boring and more interesting. [Laughter] Trying to put some literary aesthetics, additional to the same legal formulas that we use for the sake of having shortcuts, [00:28:00] so to also use some metaphors, use some quotes from literature and so on to make a text more easy and more interesting to read.
And if there weren’t for these other audiences, I think that probably our opinions would be much more boring. Because for the Judges, all that we say, or maybe just better to say, how we say it, is not necessary.
Mark Pollack: Reading some of your opinons recently, that comes out really vividly.
So I’m going to ask you in a few minutes about a case about Danish Feta. And in that case, you begin your opinion with the sentence, “It is ‘Feta’ again. That is how the present case can be introduced to students of EU law, given that it is at least the fourth installment of what has come to be known as the ‘Feta’ saga.”
I think a general public would be grabbed by that, but certainly, a legal academic audience would be grabbed by that.
Katerina Linos: Before we get to [00:29:00] the ‘Feta’ case, let me take advantage of the fact that you’ve taught EU law. And when I taught EU law, I always assigned Advocate General opinions.
I found it impossible to assign Court judgments because of the way they are structured. When you go and teach EU law in the future, when you taught EU law in the past, did you use judgments, especially now that they’re getting longer and longer, as teaching materials for your students, or did you also rely on Advocate General opinions?
Advocate General Ćapeta: We were using judgments and we were attaching Advocates General opinions to be read together. I cannot say that we were always successful that the students would read all of this. [Laughter] It is true. Because when you read it together, it takes time. It’s long, but actually Advocates General opinions also tend not to be very short.
And judgments are also trying to be short but sometimes it is impossible. Sometimes you just get the [00:30:00] 15 questions from the national judge in new areas like criminal law. We have a lot of that now, criminal procedure, lately, and then you have 15 questions about different issues. You just can’t be short. So we were even having shortcuts for students, like cutting to the important parts of the cases only, and so on.
Katerina Linos: Let me follow up with one more question about the role of the Advocate General before we get to ‘Feta,’ which of course I care deeply about. One of your colleagues put a provocative idea in a provocative way, and what he said is, “Advocate Generals, of course, need to answer all 15 questions, even if the Court will ultimately decide that, ‘If we resolve the first one, the answers to 2 through 14 are not at issue anymore.’ But Advocate Generals need to go through all of them and through all of the alternatives.” In addition, he said, “This question of obiter dicta, this [00:31:00] question of addressing issues that are not relevant to this particular case, is some freedom the Advocate General can take that the Court cannot.” The example he brought was an early arrest warrant case (we’ll find the case name and link in the show notes), where the Court has to address the question of whether the police needs to notify the person they plan to detain. The way he put it was, “Is there a fundamental right that the police cover their eyes and count loudly to 100 before they go after a suspect?”
And of course, there’s no such fundamental right. And he says that’s what the Court says. In less colorful language, of course. But he says, “Look at the Advocate General in that opinion and look at how we didn’t have a fundamental rights jurisprudence and there’s some elaboration of what fundamental rights are and are not, and a lot of [00:32:00] academics wanted the Court to reach all those questions, and of course we as a court cannot but the Advocate General has this role of going beyond the issues at hand, thinking of future legal development.” Does that sound right to you? Is that typical? Or is that a pretty extreme analysis of the role of the Advocate General?
Advocate General Ćapeta: I can tell you that certainly this was the very clear analysis of the role of Advocate General once for sure. Whether this persists because of the caseload today, I’m not really certain.
And whether this is something desirable, I would say yes, because this is something that helps in the development of law further than the case at hand. Whether the Judges love it, I can’t tell you, because this is just increasing their reading time about something that is maybe not necessary for the case. But usually these are [00:33:00] things that somehow arise around the case.
So you feel that it is necessary to touch upon those issues. I have to admit that very often, probably, Advocates General who do come from the academia, from before, also have the urge when there are issues that they know that are discussed in the academia to also discuss them a little bit more in their opinions.
And this again, I think is good because it does contribute to the development of law, but we have to find the measure between how much do we want to go into our academic discussion about certain issues and what the Court really needs. For that reason, you have different opinions from the same Advocates General.
Sometimes you go there, sometimes you don’t. Sometimes you just constrain yourself to the case at hand, and you say, “Okay, this is maybe not a good case to discuss these issues.” But yes, I would say that in terms of how the EU law [00:34:00] develops, this is one of the roles of the Advocates General, which also very often also helps judges, something that is also useful for judges.
It’s also brings the bigger context in which they have to situate their decision making about the particularities of the case at hand. And there were some cases of that kind – like my colleague Michal Bobek, before he left, he left us with a lot of cases of that kind, in which he went into for example, cases in which he went into the difference between interpretation and application, which sets the division between the role of our court and the national court in the preliminary reference procedure. He went very much into discussing this issue, maybe more than necessary for the cases, but this left a trace and we are still discussing this in the cases to come. So I think this is a useful job of the Advocates General and the necessary task maybe.
I mean, maybe sometimes it is not only [00:35:00] discussing, like you said, what are fundamental rights generally when you get to the case in which you have to say whether something particular is fundamental right. It is also maybe also sometimes discussing the context, pointing to the Judges the real-life context, which might be necessary to have in mind when deciding the case. So entering a little bit more into that, which is something that the Judges will not say in the judgment. That doesn’t mean that they don’t know it.
Mark Pollack: One of the things I found really interesting about your Europa Lecture, because, of course, we all know that since 2003, not all cases receive an opinion of the Advocate General and that the decision whether or not to ask the Advocate General to write an opinion is taken by the Court as a whole in response to the Judge Rapporteur’s preliminary report. So the Judge Rapporteur’s report precedes the Advocate [00:36:00] General’s opinion. I think lots of people don’t realize that. And that there is an sort of ongoing relationship between the Judge Rapporteur and the Advocate General long before you write your opinion.
Can you tell us a little bit about how that works?
Advocate General Ćapeta: Indeed. Thank you for asking me this. And I did say that publicly, not only in this lecture you mentioned, but elsewhere, that this was something that surprised me when I arrived at the Court. I mean, as a scholar, I was researching the Court a lot. So I thought that I know about the procedures in the Court, the role of different people in the Court. I even spent some time in the Court before doing some short stages, and I worked for a year at the Court. When Croatia became a member of the Court, I was here for one year to establish the translation unit into Croatian. So I had some insights in the Court. And I of course knew what the Advocate General is and what the role of Advocate General is.
And I did know that time-wise it goes: report, rapport [00:37:00] préalable, preliminary report, and then the opinion of the Advocate General. But I never thought through what that means. And I meant, as you said now, that it is the Advocate General that goes first. But now when I’m doing this job, now I realize that this is not true.
Because the preliminary report comes from the reporting judge in which the reporting judge gives his or her first assessment of the case and already more or less hints the way in which he or she thinks that the case should develop legally. Sometimes there are reports in which you really don’t know and then they just say, “We don’t know,” but most of, very often you do have already some hints how the case, how at least that judge, sees how the case is going to develop.
And that means that I come only after that. And in my opinion, [00:38:00] I in a way have also to respond to this preliminary report. And a preliminary report is something that is not public. So I cannot refer to the preliminary report in my opinion, but I have to admit that I do have it always in mind, because especially if I do not agree with what was at first proposed in the preliminary report, I do know that I need to put more effort into persuading at least that judge that maybe they should go a different way.
Of course, this is only the opinion of one judge. And there is maybe to now add to this another aspect of procedure, which has the same purpose for me, which I didn’t think about either before. And these are the hearings.
Mark Pollack: Mm-hmm.
Advocate General Ćapeta: Of course, hearings are important to get to hear from the parties, something that we didn’t have in the written part of the proceedings. I love hearings and the [00:39:00] Judges here know that I would always go for a hearing in the case. But what I also learned from the hearings, is what the Judges think about the case. Because I hear at the hearing what the Judges ask the parties.
And from this, I know more or less how they see how this case should be constructed. And that informs also my opinions. So there are these two aspects that I really didn’t think – I did know about them that they exist and all this, but I never thought from the point of view of an Advocate General, what use do they have?
Mark Pollack: Although I understand that you as Advocate General in the hearings are an active questioner.
Advocate General Ćapeta: Oh yes, I do ask questions. I kind of feel that I have to profit from that moment when I have parties there and maybe even ask something that maybe is not going to be that useful for the opinion in the end.
My [00:40:00] idea is that always I want to understand the case, even on the basis of facts, even though we do not decide about the facts, but to understand the background of the case is quite important. But my personal view is that the role of the procedure and of all these hearings is also to legitimize the final judgments of the Courts, so that we have to give the possibility to different points of views, different interests, to be expressed to us on legal points, on law, so that we hear all of them. And this is what in the end legitimizes one solution that we are going to adopt. If we give the opportunity to the parties to the case, to give their positions, legal positions, in the case, not only explain to us what is really happening domestically in that case, no, but give us their position about EU law that is being interpreted is I think a quite important part of [00:41:00] the legitimation of the Court’s role.
Mark Pollack: Let me ask a question that is prompted by a comment that Joseph Weiler made, that the Advocate General position is both the best job and the worst job at the Court. And it’s the best job because you can speak freely and write your own views, not submerge your views in a common opinion of a Chamber.
But that it’s the worst job because you’re putting your name to a potentially controversial judgment. I wonder how you see that question of the visibility of your individual opinions and how that shapes your experience of this position.
Advocate General Ćapeta: I could agree with Joseph Weiler that this is the best job for these reasons precisely. I do not agree that this is worse because my name is behind it. I didn’t find that very [00:42:00] problematic because, my name was behind my articles already before. So I don’t really find it very different from what I was doing before, that I’m just expressing my opinion. Even though this time, of course, these are opinions on particular cases.
And in a way, the job of the Advocate General is also easier because whatever I’m going to say is not final. So the responsibility in the end is on the Judges. So even though I am behind my words, and everybody knows that this is me. In the end, if the parties are going to be angry at someone, it’s not me. [Laughter] It is going to be a judge.
Mark Pollack: I hadn’t thought of it that way, but yes, that makes sense. So then let’s move a little bit from theory to practice and ask you questions about a couple of your opinions in recent years. And I do indeed, Katerina, want to start with C-159/20, [00:43:00] Commission v. Denmark. This was a Commission infringement proceeding against Denmark claiming that Denmark had violated EU laws on the protected designation of the origin for Feta cheese which under EU law is associated with Greece, and that they did so by allowing Danish exporters to export their products to non-EU countries as ‘Feta’ cheese in quotes.
And so the Danish government by contrast argued that the relevant European law only covered EU territory and not exports to third countries. So again, in legal realist terms, we have a legal provision that can be read in two very different ways by the Commission and by Denmark. And your opinion does something really interesting, which is it goes systematically through the ways in which the corpus of EU law can be read according to different canons of interpretation.
And I wonder if you can tell us about why [00:44:00] you structured the decision [opinion] that way and what that tells us about what you’re doing in these opinions.
Advocate General Ćapeta: Yes, thank you very much. I was surprised, to tell you, that you’re so interested in the Commission v. Feta case. [Laughter]. Even though it, was, for me, it was very interesting case. It was a fascinating case and it was one of my early cases and it really had a lot of feedback later on. And there was a lot of interest because everybody knows what Feta is. [Laughter]
So I’m really glad that you picked up this case. And I really can explain maybe some of the issues we addressed before. It was very clear in that case, that the legal rule didn’t tell us the solution. And it was also very clear that there are two possible interpretations of that rule in terms of its wording.
You said the facts of the case, so I don’t have to say anything, but the question was whether Denmark has to prevent export of the cheese produced in its [00:45:00] territory under the name of ‘Feta’ or this prohibition of use of the name of ‘Feta,’ only is valid for the European markets, in the internal market.
And I have to tell you that my first reaction was, “Why would the European Union have any interest of constraining European companies of competing at the external markets with other producers of that type of cheese who use the name ‘Feta’?” Because “Feta” is not prohibited in those territories. So what would be the interest of the European Union, of the European legislature – because this is what we were interpreting, that law – to constrain European companies to earn their profits like that, no?
And then, of course, I started digging more into the case and I learned much more about it. And I learned [00:46:00] much more that both wording, obviously, could be interpreted in two ways. Context can be interpreted differently. Purpose of this legislation is really not clear in itself. So, again, you can attach more ways to certain purposes, less ways to certain – or vice versa. So I wanted, in a way, for these judgments to show that even if we go through the usual methods of interpretation – text, context, purpose – you can still end in two different ways. And that in the end, the way, how you are going to decide the judgment is by making choice in all these aspects. You choose the context, you choose the purpose, and then you have to explain why did you choose it.
And this is more or less what I try to do, I think, in Feta case. I try to show that this is so. I then dug up, [00:47:00] why do we at all want to protect products geographically? Because it was not my area of expertise. I was digging a little bit into that. What is the purpose of this all together? Why are Europeans so attached to traditions and traditional ways of producing the food? Because you can also ask the question, “Well, why do we care? We just like a type of Feta cheese.”
And it would be much cheaper if there is more competition, and this was better for consumers. But then I thought, well, maybe not for European consumers. Maybe European consumers are proud of European traditions, and they want to eat “Feta” cheese as something different from a similarly developed or produced cheese elsewhere.
Of course, it’s protecting also these producers and making their position economically better, and so on. And once you took all this into consideration, I was thinking, “Well, maybe we should even prohibit Denmark to use the name [00:48:00] ‘Feta’ on the American market,” when they are faced with a Wisconsin ‘Feta,’ or Argentinian ‘Feta,’ or other types of Fetas.
But then I also realized that the European Commission is doing the effort of protecting the name of ‘Feta’ also on the American market. And imagine if the European Court says, “It doesn’t matter, Denmark can still sell ‘Feta’ cheese at the American market.” What would that do for the position, negotiating position, of the European Commission in this type of procedure?
So all this influenced my opinion. And this is the case in which really my first reaction was, “Thinking about trade liberalization and all this, and Feta is not protected at the American market, why should we do that?” So I more or less changed my opinion through the process of legal interpretation, in which I did use really all this, let’s say, the rules that we impose on ourselves – text, context, purpose – [00:49:00] realized that this doesn’t help me. But in a way it did help me, because it made me think through those rules, in a way. And then this streamlined my thinking, and then I decided what is more important and what is less important, and that is how I decided. To tell you the truth, I think that when you have enough time, any process of legal interpretation goes that way. And even though maybe we have to pretend that there was one clear legal answer, because otherwise it is very difficult to think about law, I think that it is simply happening like that. Admit it or not.
Mark Pollack: When I first saw the case, I thought, “Oh, well, this is good. We’ll start with a straightforward internal market case.” And it is not a straightforward internal market case. The case I wanted to talk about next is, I guess you could say, it’s an environment case.
It’s a fisheries case. Case C-330/22, Friends of Irish [00:50:00] Environment, and in this case you faced a decision in which an environmental NGO challenged a 2022 Council decision establishing quotas for various fish despite the fact that a scientific panel acting under that applicable regulation had recommended a zero catch. And in your opinion, you wrote that the Council generally had discretion in setting fishing quotas and that it could weigh environmental issues against other sorts of concerns, but that the specific language of the Common Fisheries Regulation in question didn’t leave the Council discretion to set the quotas above the scientifically determined maximum sustainable yield.
So you encouraged the Court to invalidate the quotas for these four types of fish, although coming back to our previous discussion, you also provided the Court with an alternative, explicitly with an alternative interpretation in case they were not convinced by your reasoning. So could you say a little bit more about this [00:51:00] case?
Advocate General Ćapeta: Yes. Thank you very much. It’s very interesting, your choice of cases. This is really, as I saw it, one environmental case, not common fisheries case, but very much also environmental case. And fortunately, I had some other environmental cases, which are maybe also interesting to mention like there is in the European Union, this biodiversity habitat directive and the parallel birds protection directive, which are trying to protect the biodiversity, and they’re also coming often into the Court.
And I had several cases in which we had to decide whether the wolves are properly protected by the national legislation. Or I recently had the case – it was just published, the opinion, not the case yet, not the judgment – in a case against Malta, which Commission started against Malta, in which the question was about birds and the tradition in Malta to catch the singing birds, in which [00:52:00] Malta now developed a research project under which they were now capturing the birds. And the question was whether this falls under the exception in the birds directive. So there are fortunately a lot of environmental cases, even though our court didn’t make a step yet, as the Strasbourg Court did, to maybe open up the standing before our court for the environmental cases. This is a topic to come.
But going back to the case, the Friends of the Irish Environment you asked me about, this case is also maybe nice to explain some things we already discussed. First, the beginning of my case was that we found an old Irish god, creature from the legends, Manannán mac Lir. I don’t know whether I pronounce it properly. And this was the entry into my case.
It was written [00:53:00] that he was the lord of the seas and the fish was abandoned around him. And then I found – when I’m saying “we,” I’m doing this always with the help of my referendaires – so they help me dig also these things. So we also discovered that in the end of the 19th century, the beginning of the 20th century, the ichtyologists theologists of the time were saying that the fish is so abundant that we don’t have to think about it, that there will always be fish for all of us. And unfortunately, this case then showed us that this is far from the truth in the 21st century. So the beginning of the case, again, what I was talking about: finding some more, literally, entry into the case is also something that I try to do in this case.
Mark Pollack: When I read this case – we will put it in the show notes – the introduction to this opinion is amazing. This [00:54:00] opinion is a joy to read. And that’s probably the first time that sentence has ever been spoken about an Advocate General opinion. It is just wonderful.
Advocate General Ćapeta: Thank you very much.
Mark Pollack: Anyway, please go on.
Advocate General Ćapeta: Thanks. Thanks a lot. Well, in any case, as you said the Court didn’t follow, as we say, my opinion in this case. So what was at issue was a decision passed for that year by the Council about the quota of fish that can be caught and the question was whether this particular decision had to be annulled or not.
I proposed that it is annulled, and even in my alternative proposal of the interpretation of the entire story, I also proposed the annulment to the Court. The Court didn’t annul it in the end. And this case maybe shows, first of all, nicely that both me and the Court had very [00:55:00] sound legal arguments for our solution, which very clearly shows that two solutions were possible and that in the end this was a choice.
And then if you read it through, you can maybe once reading through the opinion and the judgment, you can see simply, what influenced choices more? To which aspects I gave more weight, and to which aspects the Judges did? Maybe I have to explain the problem. The problem is that, when you catch certain type of fish, there is always some other fish swimming by. And so when you take the nets out, this other fish is also caught and this is called “bycatch.” The problem was that in this case, the decision of the Council allowed certain [00:56:00] bycatch of some of the fish species in the year 2020 of certain species of the fish for which the scientific advice was that they shouldn’t be caught at all if we really want to allow their reproduction in the future.
And obviously if you catch now this fish, you have to stop also fishing the fish you really fish, so your target fish. Because as soon as you achieve the quota limits, you have to stop fishing. My opinion would cause maybe some fishing operations to stop. Well, not really to stop, because it was in the past. I was deciding about the decision in 2020. But in the future, if this is then applied to the future, that would mean that they would not be able to catch that fish that has the bycatch, that has the scientific advice of zero catch. That is why it was [00:57:00] difficult because it was also economically complicated because it could leave some people without jobs, it could maybe ruin some fisheries industries and so on. And I had that in mind. And so this was one very important interest to take into consideration. And this interest was not only interest that you would think about, but it was also expressed in the relevant legislation. But there were also other interests. There were also this environmental interest, which was actually the main interest in this legislation. So my way of thinking of this was, “Well, I’ve put more weight on the environmental interests,” aware of the problems that this would cause. But you know this legislation set the year 2020 as the final, final date when we have to achieve maximum sustainable yield.
We were already in 2022 when we were deciding this. And therefore I thought that, we have to have [00:58:00] something that allows us to stick to our promises.
However, the way I then came to this opinion is that I thought that this was not left for the discretion anymore of the institution, that they closed on their own, the door for themselves to adopt this legislation.
And there were of course a lot other difficult issues also in this case, because there was some newer legislation which could be read as amending the previous legislation. This maybe also nicely explains this other aspect in which the Advocates General sometimes explain things that are not maybe directly relevant for the case.
And I entered into the entire discussion there about this legislative process and how in the European Union you can amend laws because there is nothing written about it. We don’t know whether you have to amend law by an express amending legislation, or you can do it just with the next newer law, which [00:59:00] implicitly amends it.
So the question was also whether this newer law could also be read as already allowing for the bycatches’ higher, higher quotas, no? So all this entered in the case. I think that it is a nice example of showing how the same case can be decided in two different ways on the sound legal justification.
Mark Pollack: The last case I want to ask you about is actually a set of three opinions that you wrote this last March, or released this last March, in which you confronted a series of challenges to the legality of two separate trade and fisheries agreements with Morocco. All three opinions focused on the question of Western Sahara, including whether those agreements treated Western Sahara as separate from Morocco. So this is in some ways a public international law [01:00:00] case. And essentially, you argue that the EU was under an obligation to treat Western Sahara as separate and distinct from Morocco. And on that basis, you agreed with, I think, an earlier General Court ruling to invalidate the EU fisheries agreement with Morocco while upholding the trade agreement. So there’s a lot going on in all three of these opinions. And I know that the Court has yet to rule, so you probably can’t say that much. But I wonder if you can tell us anything about your thinking.
Advocate General Ćapeta: You’re right, I would prefer not to comment too much on that case because even though my opinion is out, so I can say whatever I want about my opinion, there is still judgment to be decided [decision reached October 4, 2024]. And it’s a very, very politically sensitive case and very, very complicated case. I can tell you a few things why this case was very complex and difficult. It was first complex in terms of history [01:01:00] behind that case. And I have to tell you that this is maybe one of the examples of the cases in which I had to invest much more time in this case, and take it from some other cases. Because I really read a lot of books about the history of this conflict from colonization times on. There is a very, very complex history behind it. There is a big political sensitivity of this case. And there is a lot of international law implicated in the case.
In fact, the case is asking the Court to say, in which way are EU institutions bound by international law in this type of situation. And therefore it demands from the Court to interpret first of all that international law and second of all to say in which way that international law can be also interpreted by those institutions themselves [01:02:00] when they act internationally, no?
And then the third complication, and this is a big complication in all these type of cases, was that this was an appeal case. And in appeal cases, the Court is limited to answer only to the questions that were raised on the appeal in relation to those parts of the General Court’s judgment that were decided.
And as the General Court in that case only decided about certain previous decision of the Court, and how this decision is applied in that case, my space of maneuver was limited only to that question. And even though there was much more international law that might be important in the end for assessing this case, I couldn’t really go into it. I did go a little bit into some questions that I thought could not be completely left out, but really it was simply not there in this type of procedure.
And of course, it was [01:03:00] also very, very difficult because there was a lot of international law present. And well, you know that international public law is a very, very different type of law in terms of interpretation. There are rules – some rules – of interpretation, but there is not an interpreter. There is no final interpreter; I mean, final authoritative interpreter. So interpreting the meaning of the international law is a different type of task, I would say, than any other more organized types of law in which you have some final court who is going to say what it means.
Plus there is not yet many interpretations. So it was also difficult to go into those issues and think about how, when the Court of Justice is interpreting international law, that court has to proceed. I don’t want at the moment to enter into that subject, because it is really politically sensitive and one of [01:04:00] the unfortunate unfinished post-colonization stories that we still have.
Mark Pollack: So moving from some of your opinions to the broader set of legal issues facing the Court, one of the things that’s really obvious is that from the early constitutional issues of the ‘60s to the internal market issues of the ‘70s and ‘80s, the agenda of the Court has just expanded dramatically.
I wonder what you think are the most important sets of issues coming before the Court right now.
Advocate General Ćapeta: First, big constitutional issues, which actually made me fall in love with European law once upon a time, are still present, of course, and they’re still developing.
And we still had recently the cases about the direct effect of directives and so on. So this is all present still. However, this is also now implicated in maybe different areas of law. Whereas previously, we were mostly deciding [01:05:00] about internal market, now we are in all these new areas. Like, as I already mentioned, there is a lot of new criminal law cases at the Court. There is a lot of new legislation about the criminal procedures which came with a new competence that was given to the European Union. So there are more and more directives or different interests in that field to which the Court has now to give first interpretations, no? And this is exciting because, I mean, there’s not many people who are criminal lawyers here at the Court, no?
So we are all learning the new areas of law. And of course, criminal law is always very connected with fundamental rights, because after all, criminal procedure is there to defend some fundamental rights. And in the European picture, then with the mutual recognition, this is a very interesting and very difficult area that we now have as a new area in front of us.
We also have this new institution, European Public Prosecutor’s Office, [01:06:00] EPPO. I had a chance to give the first opinion in the case that arose in relation to the EPPO. We have some new cases pending. So this is, for example, one new area. Of course, all this is the result of the changing world.
So maybe I have to start from there. Maybe I have to say that the narrative now of European integration has started to change because the world around us is changing, and this is why the topics at the Court are changing, no? Once before, trade liberalization was seen as necessarily good, so the market freedoms were very easily called fundamental freedoms, okay?
Today, we question, first of all, the effects, whether the effects of liberalization of trade were really so good. In this, I don’t know how I would even call it, world of today, [01:07:00] what we are now doing, we are protecting ourselves, for example, from foreign investments, which we never did before.
This is something completely different. We are screening foreign investments. I have an interesting case called [Xella , C-106/22] which was about the screening legislation that exists and where I realize, I have to admit that I was surprised, that we have such legislation in the European Union.
But yes, the world has changed. Then, some other values, like liberal values in the civil sense of the world, not economic, were not questioned ever before, no? Today we have even claims in Europe that there is something like illiberal democracy and that this is possible. And of course the Court has to face all those challenges and that’s why we had all this line of cases about the rule of law.
The rule of law, that was something we took for granted until recently, and now we [01:08:00] suddenly had to think about. Once you have to explain what a concept is, then you start to think about it in different ways, and we were put in front of explaining this to the general public and therefore explaining also to us what we really understand under this concept of the rule of law.
And then of course there are, and I hope there will be even more, challenges in the environmental field because I personally think that this is one of the biggest concerns that we have at the moment, even though there are many others. There are, of course, unfortunately, wars going around, and this also brings cases to the Court.
So the sanctions to Russia, for example, had a lot of cases, and they’re still coming to the Court. And they also all, of course, involve very often the [01:09:00] issues of the protection of fundamental rights. And the role of the Court as a fundamental rights protector became much larger since the European Charter of Fundamental Rights was adopted as a binding legal instrument, even though, of course, fundamental rights were always present in our legal systems.
But it is just now that everybody knows about it. So there are no cases anymore, which do not come to the Court without lawyers invoking Article 47 of the Charter. So right to effective judicial protection, that became something that you will always find as present today. And this differs very much from once before. And then, of course, there are all these complex cases, which are complex because we don’t understand the world. Technological cases, but which open very, very important questions. And we all have to learn this. I feel like I have to mention our colleague who just recently passed away, Judge Marko Ilešič, who had [01:10:00] some time ago one of these important cases about the right to be forgotten on internet.
At that time, judges had to, just go into that and understand what all this is. Today, we have to decide, about platform workers and their rights. And very soon we are going to have the European Union Artificial Intelligence Act on which we will have to say something.
Katerina Linos: So there are also all these new issues that are coming because of that. And of course, a lot of cases came because of the GDPR. So General Data Protection Regulation which also maybe raised the right to privacy to a very, very high level in the European Union. And maybe we now have to balance it against other fundamental rights, little by little. So you just said that we have a lot of GDPR cases as a volume, and because this was [01:11:00] a tool that was available, the right to privacy has been raised, and now we have to balance it against some other issues. Could you elaborate a little? I know there’s a war in Ukraine. I know, for example, that when the NSA was obtaining data in the Snowden case, we were furious. Now that the NSA has helped some with Ukraine, maybe it’s things are more positive. That’s one development.
The other development, as you mentioned, is artificial intelligence. Now we can connect information that previously we could not connect. You said that maybe going forward, we need to do some balancing of the right to privacy against other rights, and I would love to hear more about that.
Advocate General Ćapeta: Well, of course, right to privacy, of course, came in clash with many otherfunctions of the state or any other interests, like security. How far can you intrude into people’s privacy because of security? And there were key important cases that the Court had to decide for that. And there are some simpler cases.
There was a case about which information can you put on the identity cards, for example. And how much this might influence your right to data protection, because obviously, there is your personal data. That’s the idea. So this kind of comes into clash.
So there is more and more of these kind of cases. But for now, the Court was very much trying to protect personal data. And of course, with the artificial [01:13:00] intelligence, this is, again, accentuated. And it is going to become difficult because whatever artificial intelligence does, learning from the new models that are learning from the entire internet, when you cannot know how much data was actually the protected data and should not be used, and whether this is going simply to prevent us to use the new technology. It’s not realistic, no? It is not possible that we are not going to use it. And then still we have to find the right measure to still keep the protection that we have imposed. But to enable still the use of data. Of course, Europe also has the issue that, data is today, everybody says the most important currency, or asset. Today, what is worth, is data and with such high protection of data, [01:14:00] Europe might start lagging behind the rest of the world that is using data more easily. We will have these kind of cases coming before us. I’m expecting this.
Katerina Linos: I wanted to ask a question about preliminary references. It seems that preliminary references have increased in number tremendously and perhaps the Court’s thinking has changed on who should handle them and how they should handle them. Could you talk about this?
Advocate General Ćapeta: You’re asking this question at the right moment because we have some significant changes about the preliminary references. First of all, yes, you’re right. Preliminary references are the major part of the Court’s work at the moment. I didn’t look at the statistics recently, but I think that around 60 to 70 percent of the cases are the preliminary ruling type of cases.
Soon on, it is not going to be only the Court of Justice who is going to be involved in this kind [01:15:00] of proceedings. You know that we have shared a lot of jurisdiction of the Court with the General Court since it was established in ‘89, and part of the cases now start at the level of the General Court and come on appeal to the Court of Justice.
However, preliminary references was always the field in which the Court was not willing to share this jurisdiction, even though the legal basis for this existed, because since the Nice Treaty amendments, the treaties provided for the possibility to transfer to the General Court in particular areas, and that’s, I think, the wording of the Treaty, “particular area,” also, the jurisdiction in preliminary references. The big increase in caseload and the cases are so complicated. And we feel this lack of time. The Court decided to try the Treaty opening. And we have proposed a year ago or so to the EU [01:16:00] legislator, which is for the amendments of the statute of the Court, both the Parliament and the Council. What is necessary to be done is that the amendment of the statute of the Court, we proposed to transfer to the General Court in certain areas, in enumerated areas, also the jurisdiction over preliminary references.
Areas are the VAT, so Value Added Tax; customs classification; passengers’ rights, so this regulation granting rights to passengers; the system of exchange of climate quotas. It has a name . . . Well, there are several particular areas that we transferred to the General Court.
Mark Pollack: The emissions trading scheme.
Advocate General Ćapeta: Emissions trading scheme. Thank you very much. And now this legislation, even though it was not yet formally adopted, it went through all the procedures in the Council and the Parliament, and it will [01:17:00] soon come into force. And so from autumn on, we can start implementing this new procedure [the new system started to function as of 1 October 2024].
And then we also, of course, had to amend the procedural rules of the Court and of the General Court for that. But from my perspective as Advocate General, this is also important and interesting. Because from now on, the General Court is going to have a sort of Advocates General as well. Because the way the General Court is going to decide preliminary issues that are going to be referred by the national judges to it is going to be in the same way as the Court of Justice does it.
So they are going to replicate more or less our procedure. They are not going to have the permanent Advocates General. But some of the Judges are going to be appointed to the position of Advocate General, which exists already now as a possibility for the General Court, but I think they used it only twice up to now in their history.
Now they are going to appoint one or two persons in time as Advocates General, and they are [01:18:00] not going to cease being judges as well, but not in those cases. And they will have the role of the Advocates General. This is going to change a lot in my view because it is not going to be anymore the Court of Justice who is going to have the final interpretative word about these areas of law.
There is not going to be appeal on these kind of cases from the General Court’s judgments. There is going to be a mechanism through which the case can be forwarded up to the Court of Justice if the General Court so wants. Or even some mechanism in which we can say, “This is important, give it to us, back.”
The way the procedure is going to work is that the references are still going to arrive to the Court of Justice. So it is going to be national judges who will refer to the Court as before. And then the Court will do the triage, so to say, to see which of those [01:19:00] cases concern only those issues that are VAT or customs duties or so on and don’t involve any other issues. And then it will give them for decision making to the General Court.
So there will still be, of course, VAT cases which will have other important issues and they will stay with the Court. Like Åkerberg Fransson is one of these cases, which is usually quoted, which was the “pure VAT” case, but it was actually the case in which the Court stated the limits of application of the Charter.
This will happen, this transfer, which means – and the big change of which I wanted to talk about – is that the Court will now lose its final word in these areas. And this is something that is maybe not yet perceived as such. This is perceived as, “Okay, this is a transfer that has happened,” but that simply means, “a VAT situation.” For example, I recently had a one of the last VAT cases in the [01:20:00] Court which was an interesting case.
It was about how do you characterize the transactions that happen when you are filling your car with electricity? What kind of transactions are in and who has to pay VAT? More or less. And now I’ve proposed something, and the Court is going to decide something, but you know, maybe something else could be decided as well.
Maybe the Court would decide differently. But now, the Court cannot anymore decide differently just because the Court thinks this is a better choice, because now the final choice in those areas is going to be for the General Court. And so this is going to be for the first time that actually, the Court of Justice doesn’t have the final word in interpretation of some areas of European law.
So, conceptually, it’s a big change, I would say. It is not such a big change because it is not a very big number of areas, and these are the areas – and this is how we chose them – which already, [01:21:00] there is a lot of case law behind it, that they’re already interpreted a lot, but there are always new issues that come.
Mark Pollack: So, we have covered a lot of ground. And I’m very aware though, that we may not have asked you about some things that you may consider to be vital to the quarter, EU law. Can I ask if there’s any things that we should have asked you that we haven’t or any final words that you’d like to leave with our listeners?
Advocate General Ćapeta: Maybe one of the interesting cases, of which I also don’t want to say much because it is still pending, was the case about the limits of the jurisdiction of the Court in the field of common foreign and security policy. It was also several cases together which raised for me the interesting question of part of the text of the treaty, if read as at first sight obvious, actually comes into [01:22:00] clash with the constitutional order and constitutional role of the Court of Justice.
So I propose the reading that many find very broad reading and some find even going against the text. Of course, I don’t find it going against the text, otherwise I wouldn’t propose it. But, which is also the case, which is happening in the environment, in a context, which I mentioned in the case, which is not relevant for my decision, but which is relevant to know and which also points to what we were discussing before, that the Advocates General point also to other issues that are not only the issues that the case itself raised. And that is that the question of the jurisdiction of the Court for common foreign and security policy was one of the questions in the Court’s opinion about the accession of the European Union to the European Convention of Fundamental Rights.
This is still the [01:23:00] open question, and therefore this is the context which also, in a way, is important in this case. That was, for example, one of the cases that I also had to spend a lot of time thinking about and drafting it very carefully. I knew that there is going to be a lot of those who are going to say, “Well, no, she’s trying to propose to redraft the treaties.” Which of course is not something that the Judges can do or should do, and we don’t have legitimacy for something like that. But it does open the question of the limits of the interpretation again.
Mark Pollack: Well, wonderful. This has been such a great discussion. I want to thank you so much for talking with us and for appearing on Borderlines.
Advocate General Ćapeta: And I want to thank you for this project because this is going to help us, learning more about our colleagues. [Laughter] [01:24:00] And I’m looking forward to it. I am expecting all this, not my interview, but other interviews with a great curiosity, really.
Katerina Linos: Thank you so much.
Katerina Linos: We hope you found our interview with Advocate General Ćapeta as fascinating as we did. If you’d like to watch Advocate General Ćapeta’s Europa Lecture, or read more [01:32:00] about the various cases we discussed, including her own legal opinions, please check the show notes, where you’ll find many links.
Mark Pollack: As always, we want to thank our producer, Toni Mendicino, our sound engineer, Keith Hernandez, for their work on this episode, and of course, Advocate General Ćapeta for giving us such a vivid look into the life of the Court.
If you enjoyed the episode, please like us and leave a comment, and we’ll see you next time on Borderlines.