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European Union Court of Justice Series: Interview with President Koen Lenaerts

Episode #2 November 01, 2024
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European Union Court of Justice Series: Interview with President Koen Lenaerts

Episode #2 of the Borderlines CJEU Series features CJEU President Koen Lenaerts in conversation with Professor Katerina Linos (Berkeley) and Professor Mark Pollack (Temple University). President Lenaerts has been re-elected to the Court’s top office by his peers three times since 2015, having served tirelessly since his nomination to the CJEU in 2003 by home country of Belgium. His interview traces the historic path to today’s Court of Justice, and illuminates differences from other courts, including the U.S. federal judicial system.

Listeners will come away with an overview of the Court’s functions and structural methodology in interpreting the EU legal order, including the role of the President, the Judge rapporteur, and the Advocate General. Presidential responsibilities include assigning cases to Judges and presiding over the Grand Chamber to deal with the most important cases. New developments in case law, evolving technological access, and finding balance between unity and diversity, privacy and security, are addressed by the head of the EU’s judicial institution.

President Lenaerts in total has spent 35 years as a European Union Judge, initially serving on the Court of First Instance of the European Communities (now the General Court) when it was established in 1989. He earned his legal degrees including a doctorate in Belgium and also obtained a Masters of Laws and a Masters in Public Administration from Harvard University. 

President Lenaerts is Professor of European Union Law at Leuven University in Belgium and a member of many legal and academic associations including the Academia Europaea, London; the Advisory Council of the British Institute of International and Comparative Law; the Advisory Board of the Centre of Law and Governance in Europe, University College London; the Governing Board of the Foundation of the Academy of European Law (ERA), Trier; and the Board of Trustees of the Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg. He is the recipient of numerous awards and author of a vast list of publications.

Some of the cases and sources mentioned in the podcast:


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: 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 first episode in this special series on the Court of Justice, we spoke with Erwin Chemerinsky, the Dean of Berkeley Law and a distinguished constitutional law scholar about the Court of Justice and why Americans should find it interesting and important. Today, we begin our interviews with the European judges by talking to Koen Lenaerts, the President of the Court of Justice.[00:01:00] 

Mark Pollack: Just to set the stage, we visited the Court at the invitation of President Lenaerts in late June and early July, interviewing, both together and separately, 10 of the 27 judges of the Court of Justice and 6 of the 11 Advocates General. It was an extraordinarily busy period for an already busy Court, just a few weeks before the summer recess, with members of the Court and staff working long hours to complete their cases before the recess, and with multiple hearings taking place every morning in the Court’s various hearing rooms. It was in that context on the first Monday morning that we sat down with President Lenaerts in his office to talk about the Court and his presidency. 

Katerina Linos: As you will hear, President Lenaerts is both a comparative law scholar and a long time Member of the Court, having started his time in Luxembourg as a Judge on the EU’s General Court, the lower court, moving up to become a Judge on the Court of Justice, and finally being elected and reelected by his fellow [00:02:00] Judges as President of the Court. 

In our interview, we asked President Lenaerts to introduce our listeners both to the Court itself and to his experiences, his responsibilities, and his views as President of the Court, a position that has both similarities to and differences from the Chief Justice of the U.S. Supreme Court, a topic we spoke about a great deal. 

As you’ll hear, President Lenaerts spoke of the Court, often in reverential terms, as a common court for the EU’s 27 Member States, more akin to a constitutional court than an international court. Yet, he also referred to it as “the EU’s Help Desk,” assisting national courts when they encounter the challenge of interpreting EU law.

Mark Pollack: Along the way, we discuss human rights, state of privacy, same-sex marriage, how European judges manage to decide cases collectively with no dissenting or concurring opinions, how the docket of the Court has expanded dramatically [00:03:00] over time, and why he is committed to making this historically secretive court into more of a glass house. 

Katerina Linos: It’s our distinct honor to start our series with President Koen Lenaerts, who has led the court since 2015. 

President Lenaerts: I’m Koen Lenaerts, President of the Court of Justice of the European Union and Professor of European Union Law at Leuven University in Belgium. 

I’m here in the office of President since October 2015. It’s an office which is filled by election, election by the colleagues, judges; election by secret ballot, every three years, so it’s for a three-year term, renewable as many times as the colleagues want to renew it. So it was renewed in 2018, in 2021, and we will see [00:04:00] what happens in October 2024. [President Lenaerts’ term was renewed for a third time in October 2024.] 

And that is indeed very important because the President is really a consensus builder. It’s the core essence of the task of the President, and this in all relevant respects, between the judges in deliberations, which lead to collegiate decisions, but also between the two courts which compose this single institution under the name Court of Justice of the European Union, that is the Court of Justice proper; properly, the Upper Court and the General Court, which is the administrative court, the court of judicial review of the decisions of the institutions and bodies of the Union and at the same time, a specialized court for some subject matters. That is what we now start on the 1st of October 2024, where that court will also answer references for [00:05:00] preliminary rulings in six specific areas. That’s the terminology of the treaty, and it’s basically the topics of indirect taxation, value added tax, excise taxes, customs, the combined nomenclature, also in the customs field, passenger’s rights, and the emission trading system for greenhouse gas emissions.

The main court for the answering of preliminary references remains the Court of Justice for all questions which are horizontally relevant across the subject matters covered by European Union law, and these subject matters are always increasing in number, but they are especially increasing in degree of the diversity of legal subjects covered by these matters.

And this has nothing to do with the Court of Justice, this has everything to do with the Member [00:06:00] States as “Masters of the Treaties,” entrusting ever more competences with each Treaty change to the common governance structure, which the European Union is: a common governance structure, a common legal order, whose identity is based on the values of Article 2 of the Treaty on the European Union. There are 12 values mentioned there: human dignity, freedom, democracy, rule of law, human rights in a society characterized by pluralism, tolerance, equality, in particular between women and men, but not only in that respect; solidarity. When you count all these values, you come to the number of 12. And I always told my students in Leuven, these are the 12 stars of the European flag.

And you know that the European Union flag always has 12 stars. Different from the U.S. flag, it is not one star per [00:07:00] constituent state of the Federation. Here it is 12, the number of perfection, which is seen as the 12 pillars of the European Union. And so, I mean, it’s probably sheer coincidence that the number of values of Article 2 of the Treaty on the European Union add is up to 12, but it’s a nice story all the same, to say that it is the 12 stars of the Union, the 12 values which the Member States share, and must share to be able to be a member of the club, that is to be a member of this common governance structure and of this common legal order. 

That’s in a nutshell what I’m working in as President of this Court. And as you know, the Court of Justice of the European Union, comprising the two courts, the Court of Justice and the General Court, is a judicial institution, which has an equal status to the three political institutions, namely the Council of the [00:08:00] European Union, the European Parliament – I should have mentioned the European Parliament first, because it’s the directly elected popular representation, then the Council of the European Union, you see the picture, House of Representatives/Senate, it’s that, the constituent entities, the Member States, are in the Council; and then you have the European Commission, which is the executive. So you have the legislature, the European Parliament, and the Council of the European Union, the executive having also the initiative for lots of legislation, which in the European parliamentary systems is ordinarily the case. 

And then you have the judiciary, that is the Court of Justice of the European Union, but in interaction with the national courts, because we do not have, as you know, a separate system of federal courts and state courts. No federal remand, no federal question jurisdiction, no diversity jurisdiction like you have in the federal court system in the United States. [00:09:00] Here, the national courts are the courts of general jurisdiction on matters of European Union law for the interpretation, application, and enforcement of Union law so that Union law remains a law common to 27 Member States not only on the books but also in actual practice.

And in that respect, I sometimes said playfully to my students, “The Court of Justice of the European Union is the Help Desk” [laughter]. So when there is a problem of interpretation where the courts say, “well, would our colleagues in all these Member States, in all these different languages, in all these different legal systems understand this automatically in the same way as I do?”

If there is a doubt as to that, that we call then reasonable doubt, rather as the Court of Justice of the European Union, that allows our Court in trustful interaction with the national courts to say the law, the res interpretata, [00:10:00] in a way that the interpretation is the same everywhere, and that we are entirely dependent on the loyalty of the national courts to play that game.

Without the national courts submitting us cases for interpreting Union law and sometimes also for controlling the legality, the validity of acts of the Union institutions and bodies, we cannot do any work because our jurisdiction for 80 percent depends on that. I say for 80 percent because there is 20 percent left appeals against the General Court in judicial review cases, and then direct actions, which mostly then the Commission will launch against a member State for infringement of Union law obligations by that Member State. Or sometimes really constitutional cases where the Council is suing the Parliament or the Commission, inter-institutional litigation, and so on.

So in a nutshell, that is where we [00:11:00] stand. The Court is taken very seriously as an institution. It stands institutionally on the same level as the three political institutions. So the Presidents of the European Council, of the European Parliament, of the European Commission, and of the Court of Justice of the European Union, are institutional Presidents on an equal level of status.

So that is in a nutshell what my office represents. And lots of the questions which you have prepared for me will serve to spell this out and how it works more concretely. I hope this is helpful. 

Katerina Linos: It is very helpful. And if we have extra time, we’ll ask about Article 2 cases and the controversy around those but I just thought I would start by asking about your role as President of the Court.

So you started a very long time ago at the General Court. You joined the Court of Justice in 2003. You’ve been [00:12:00] President, re-elected continuously since 2015. And I wanted to ask about the role of the presidency. So in some courts – I interviewed Joan Donoghue, the most recent outgoing President of the ICJ, and she said, on the International Court of Justice, we rotate every three years and the Court is not named after its President. Whereas in the U.S. Supreme Court, we speak of the Warren Court, we speak of the Roberts Court. And the question is, to what extent can one speak about the Lenaerts Court? How is it different from the Skouris Court? Our introduction, our tour guide, told us already on press relations, you’re quite different from your predecessor.

But how would you characterize your legacy so far? 

President Lenaerts: On that precise score, there is certainly no talk of a Lenaerts Court. And that has nothing to do with my person or with the person of my predecessor, [00:13:00] Vassilios Skouris. It has simply to do with this very court and the essence of what this court is and stands for.

And that’s where I want to begin in the answer. The Court of Justice of the European Union is not an international court. And that’s probably the main sentence which I’m pronouncing in this interview. It is, in my view, not even a supranational court. That may even surprise you further. What is it then? It is a common court.

It’s a court common to the legal systems and to the judicial systems of 27 participating states, the Member States of the European Union. And why are these semantics so important? Well, it covers everything. We have Article 18 of the Statute [00:14:00] of the Court of Justice of the European Union, and you know the Statute has the same normative value as the Treaties themselves.

The Statute is laid down in the Protocol annexed to the Treaties. In that statute, there is an Article 18. And I promise you not to abuse the numbers, but that is an article which everyone, also looking from the United States at the European Union, should have on her or his mind when looking at that court.

And the article says that a judge can never be recused from sitting because of her or his nationality, nor the reverse: a judge cannot be requested to sit because of her or his nationality. That rule, which is simple in its wording, goes to the essence of the difference between the International Court of [00:15:00] Justice in The Hague or the European Court of Human Rights in Strasbourg.

Those are international courts. And they have, on that precise score, the exact opposite rule. 180 degrees opposite rule. Namely a rule which says, when a Member State of the Council of Europe, or a state around the world, is a defendant in a procedure, the judge having the nationality of that state must sit. And if that judge, for whatever reason, professional or personal, is prevented from sitting, there is even an ad hoc judge designated to have that nationality represented. This is not legal. entirely absent here, and deliberately and expressly so, because this court is not judging states. This court is doing what the [00:16:00] mainstream Supreme Court does in a national law context.

This is in fact a court which is best comparable to the Supreme Court of the United States, although the procedural ways are a bit different, but it’s a court which has in essence two tasks: to guarantee the uniformity of interpretation, of understanding, if you want, of the law common to these 27 states, that is, Union law, that’s a synonym for Union law, the law common to 27 states, to see to it that this law remains common in the field. Because without that guarantee, there is no equality before the law. If taxpayers are to pay more VAT in Portugal than in Estonia, there is no equality of taxpayers before the law, that is in this case Union law, because value added tax is an EU tax, at least the taxable base is EU, so there must be equality.

But the [00:17:00] same can be said of consumer protection. The same can be said for the users of the internet and the protection of their privacy and personal data. So all these laws, which are laws which stem from the EU governance level, these laws must remain common everywhere. So our Court is the court common to the 27 Member States to guarantee the uniformity and the common character in the field of Union law rules, thereby guaranteeing the core principle of the equality of people before the law.

Next to that, that’s why like the U.S. or like the Scandinavian countries, we do not have a separate constitutional court. The constitutional court function is also taken up by that same Supreme Court. And that’s us. We invalidate, every once in a while, a legislative act of the European Parliament and the Council.

Think about Digital Rights Ireland and Seitlinger. [00:18:00] References from the High Court in Dublin and from the Verfassungsgerichtshof Wien, the Constitutional Court of Austria, came to us challenging the validity of a directive on the retention of the traffic data and the location data [for] up to two years’ time.

And we have said that this was incompatible with Articles 7 and 8 of the Charter of Fundamental Rights of the European Union protecting these human rights. So it’s an example. So this Court is really sitting as a court of Union law. It’s not the court judging a state. Yes, you can have, of course, as I said, the Commission suing a Member State for allegedly not complying. Sometimes the Commission wins, sometimes the Commission loses also. So that’s a direct action. 

But even there, the concern is to uphold the common character of the Union law because the idea is that all the Member States must comply with Union law. Because if they [00:19:00] don’t then of course [Member States] say, “yes, but that state is not complying, and that state is not complying. . . .” If you have no mechanism to judicially uphold the compliance then again the equality of Member States, in this case, and their citizens before Union law, would be at risk. So there are also such procedures that can even lead to financial sanctions when the breach of Union law is persisting.

This does not happen very often, fortunately enough. But Member States know that. They can also be held liable through liability actions. So there are many very subtle but effective enforcement mechanisms, also judicial enforcement mechanisms, for upholding compliance with Union law. And it is, in fact, all of that which means that this court is to be seen as a court common to the Member States.

Katerina Linos: Let me ask you a bit about the nationality point. So I was fascinated in visiting the European Parliament and asking questions about a trillion [00:20:00] dollar stimulus program, NextGeneration EU. The rapporteurs at the European Parliament were two Romanians and one Spaniard. And I was saying, “but surely you need some Germans? It’s future generations of German taxpayers.” And they were shocked that I was asking about nationality rather than saying, “The People’s Party” or “The Greens” and the fact that you could have this idea that political identity rather than nationality being critical in the determination of this huge program surprised me.

I wanted to ask about the judge rapporteurs and your role in designating a judge very early on. So it’s fascinating to me that this happens at a very early stage, before the Advocate General. Rather than, when in the U.S. we have the Chief Justice who assigns at the very end, after the votes are in who will write the majority and how broad or narrow the decision will be. 

I wanted to ask about, in [00:21:00] part, the nationality of the judge rapporteur. I thought there was a soft norm that if the procedure implicated Germany, you would not assign a German judge, but maybe that norm is no longer necessary. I wanted to ask how you think about the role of the judge rapporteur. Are they supposed to present both sides? Or are they supposed to guide the Court like the Advocate General? That seems like a big part of the presidency. 

President Lenaerts: Allow me to pick up one line which you literally said: after the votes are in [laughter], relating to the U.S. That allows me to answer your first question. In order to make the law common to the 27 Member States work, the Member States and no one else, as Herren der Verträge, “Masters of the Treaties,” have provided, so it’s not a choice of the Court – for consensual, collegiate judgments, without concurring or dissenting opinions.

And it’s crucial to start from there. [00:22:00] It is for the President of the Grand Chamber, or exceptionally the Full Court sitting as a judicial bench, to sort of bring everyone on one line, a line, which is predominantly consensual after lengthy debates in several stages among us. So to contribute all the talents around the table to the strongest possible line, which is held not just by a bare majority, but largely overwhelming views. And this is the spirit of the house, and that is why there is no Lenaerts Court or Skouris Court or any other type of court, because all the work is done collegiately and geared at consensus, not when the votes are in. When we have to vote, that is felt like a failure. We have to [00:23:00] discuss with one another to deliberate.

It’s what Jürgen Habermas has called deliberative democracy. So in that sense, it’s of course in a rule of law setting, but the law is not an exact science, it’s an argumentative science, as we all know as lawyers. So, in fact, within the deliberation room, we very constructively exchange with one another, listen deeply to one another, it’s all orally, in one language, French, which everyone masters to the extent needed to really participate. We work with one another. And yes, it does happen all the time that people say, “hey, what you say there, I hadn’t thought about it before. I have to think it over again.” And so we sort of work it out. And then of course, the President is extremely proactive, but hidden from the public eye, because when we take our oath of office, we promise three things.

That’s first of all to do our best. That’s what the [00:24:00] school children must also promise their parents, isn’t it? So that’s not very surprising. Second, to be fully independent, not to take instructions anywhere, not to listen to instructions, full independence. The first is conscience, then it’s independence.

And the third, and only three things, is to keep the secrecy of deliberations during the term of office and at any time thereafter. That is to give all the intellectual space it takes to, independently from the outside world and especially from national governments or from major economic groups or other groups in society, whatever it be to really work on the basis of the understanding of the law common to these 27 Member States, that is all the Union law instruments, both of primary law, the Treaties, the Charter, and all the legislation and executive acts, etc, to really come up with solid, persuasive reasoning.

[00:25:00] It’s a bit like Alexander Hamilton wrote in the Federalist Papers, 230 years ago. He said, “the judiciary is the least dangerous branch of government. It has not the power of the purse. It has not the power of the sword. It has only the power of persuasion.” Well, that we play to the full . And I also tell it to our colleagues. I say, “we must really be deeply convinced that the line we are setting out in this core judgment can be held.” It’s not an ego tripping thing. It’s judges will not speak with the press nor speak on the television platforms,” et cetera. All things I observed in the United States, with all due respect, but it’s a totally different system.

So we work with one another. We have initial viewpoints. They develop throughout the deliberative process and we come to a single pronouncement. And that is why the President is charged immediately when a case comes in to designate a reporting judge. [00:26:00] The reporting judge does not havea role like the justice in the U.S. Supreme Court writing for the majority. Which is then often the most senior judge of those holding that majority, which is, of course, a post factum designation. Here, the system is totally different because the judge rapporteur is a servant of the court to sort of steer through the procedure to make a a first note for the general discussion, which we have in the most difficult cases.

And [he] then listens to everyone and together with the President comes to the final synthesis of what is said around the table. Then [he] makes a first draft judgment in the drafting style of the Court, which you know uh, it’s, in the paragraph settings, et cetera. It’s sort of a mixture of French, but not only French, and other legal systems, it has also somewhat developed over the years.

Then all the other judges make notes in writing with [00:27:00] amendments on the draft. So it’s not the opinion of Judge X. Judge X has only as reporting judge taken the lead, sort of the kickstart of the whole process. And then all the others make proposals and very often these amendment proposals have a very good view, but also from the part of the judge rapporteur. It is absolutely not unusual in the secrecy of the deliberation room that the judge rapporteur says, “yes, it was difficult so I’ve made a proposal, but you know, after I read the note of Colleague X, I found that brilliant, I’ve taken that up and then he will make a modified proposal, right before the oral deliberation, in which all these amendments are already integrated in an enriched proposal which might differ very broadly from the first draft.

And then on that basis, the President comes in with the very final proposals, certainly in cases where the views [00:28:00] remain different. And then we go on that basis to the oral deliberation. And so then we finalize the draft, literally, with the core passages, especially for the Grand Chamber judgments, being finalized in the drafting around the table.

So once you know this core essence of the functioning of the Court, you understand why there is no Skouris Court or Lenaerts Court or any other court. It’s really collegiate. That is the French or the German system, or the Italian Corte Costituzionale, it’s the Tribunal Constitucional in Spain.

It’s a mixture of all these traditions, it’s all collegiate. No dissenting opinions. The Member States have thought that the cohesion of the legal system requires always [for us to act] as a common court. Don’t forget, the core essence of the task is to have a common understanding, no confusion. But, to balance it out, they borrowed this Advocate [00:29:00] General institution from the French legal system.

Don’t forget that the Union started in 1952, here in Luxembourg, as the European Community for Coal and Steel. Court of Justice of the European Community for Coal and Steel was our first court. and it’s always the same court, which has developed across all the stages,  with today’s European Union.

It has always here been in Luxembourg. It has gone through these stages. Initially it was France and Germany, the three Benelux countries, and Italy. As I said, the Advocate General institution is a French institution of Napoleonic times, which has been extended to the three Benelux countries when they were between 1795 and 1815, 20 years under 

 The legal institutions, also the civil courts, other courts as well, but also the judicial organization has remained French in France and the three Benelux countries, up till the present [00:30:00] day. And in Italy they have also something which is comparable. Not in Germany, there they don’t know anything equivalent to the Advocate General.

So that is why that started. And what is the role of the Advocate General? She or he [is] as a full Member of the Court with an equal status to a Judge, and is acting as a single judge would do. Except that the pre-reasoning is in a much more discursive style, more a narrative – narrative is maybe not a good word, but narrative at the start – to explain the case, and then argumentative, also drawing the broader picture, the broader context of the case, doing comparative law research, bringing that in that opinion. It’s sort of to contextualize the actual decision to be taken by the judges and to make them a concrete proposal of possible reasoning and possible outcomes of the case. But all of this is non-binding. When there is an opinion of an Advocate General, that is for the more difficult [00:31:00] cases, it’s about half-half, then that is the start of the collegiate deliberation.

 The opinion is public, the opinion is immediately put on the internet the day of its delivery, and the deliberations start thereafter. So it’s very transparent as a process, so the outside world knows already the background against which the judges are going to have their collegiate decision making.

So, when I designate the rapporteur, the only rule, but it’s nowhere written, and you could say that it is an aspect of nationality after all. I shall never designate the judge from the Member State where the the preliminary question comes from or when it’s a direct action, Commission against a Member State, I shall of course not designate the judge of that state to be the reporting judge.

So it’s totally nationality blind for the composition of the benches hearing and deciding the cases. [00:32:00] That can be checked, and some parties do check it, under our Rules of Procedure, whether they have been complied with. We have an actual computer program in the Registry to have these benches composed.

Also, when a judge is then hindered from sitting – empêché [in French] – then there are rules how that judge should be replaced, et cetera. So it’s all to comply with the lawful judge requirement, gesetzliche Richter. It’s a German constitutional law concept, which we adhere to very strictly. It’s also spelled out in the Treaties. But the reporting judge, that’s my decision and it’s sort of a rule of thumb since more than 50 years, will not be a judge of the Member State which is more directly involved in a case. Although you never know, sometimes it happens that you have a case, Commission against let’s now say Belgium, I’ll take my own Member State, not to be diplomatically sensitive, and then I [00:33:00] designate, let’s now say, my Spanish colleague, and then it so appears that Spain intervenes on the side of the Commission.

Because the intervention is after the initial designation. Then, of course, the Spanish judge remains the reporting judge. We are not going then to change the rules. So it is sort of a soft law rule when you have the possibility The First Advocate General designates also, when the case first comes in, the AG responsible for the case. It’s a he now, so he designates also the Advocate General not coming from the Member State concerned. A last footnote to all of this: since the Advocates General as Members of the Court give non-binding opinions and they’re all always sitting alone. So the only one Advocate General per case, that’s the French model, as I told you, it is not needed to have as many Advocates General as judges.

We [00:34:00] have 11 and that’s enough because they do not sit in all the cases, but only in the cases which are the most important ones where new issues of law arise. And they’re all always sitting alone, whereas the judges sit normally with five and many times with 15 and for the easiest cases with three, but so the judges are far more needed physically also in the house; the AGs come in, in their cases.

So the five biggest Member States have a permanent [Advocate General] post available to them, and it’s filled like for the judges six years, renewable, for these five Member States. The 22 other Member States, some of them not so small like Romania or The Netherlands, but they accept it, they are in a rotation system on an equal footing, where every six years, it passes on to a next Member State, and this in the alphabetical order of the [00:35:00] Member States, but the alphabet in their mother tongue.

So now we have a Greek Advocate General, not because of the G of Greece, but because of the E of Ἑλλάς. With a little accent, I did ancient Greek, you see, it’s Ἑλλάς. So that’s how it works. So it’s with the “E.” But sometimes it has surprising effects.

You know, Croatia is not at all Croatia in the Croatian language. It’s Hrvatska, with an H, as you know. And Cyprus is Kypros. Kypros, with a K. And Hungary is Magyarország, it’s an M. and Finland is not an F, but it’s Suomi, so with an S. So in accordance with their national language, they’re in alphabetical order, and that’s how they come in, in our Court. 

Mark Pollack: Can I follow up on the bquestion of dissent? The Court is, has always been, distinctive in this consensual style of [00:36:00] deliberation and delivering opinions. The absence of separate opinions and dissents. To some extent, European constitutional courts started there, but they’ve moved towards a more open style, allowing for dissenting opinions. Obviously, the Supreme Court in the U.S. also has secret deliberations, but sees that as consistent with dissenting opinions. And of course, the Strasburg Court also has dissenting opinions.

So I know that, for example, Joseph Weiler has suggested that it would be beneficial for the Court to have a – you know, that the Court is well established, it would be beneficial to have a more open style with separate opinions and that that should be accompanied by a switch, as they had in Strasbourg, to nine- or twelve-year non- renewable terms of office. The current CJEU system has advantages and disadvantages. I wonder what you would say to that kind of concern. 

President Lenaerts: I shall here come back to what I started out with. This is not an international [00:37:00] court, nor a strictly national court. It’s in between. It’s a common court.

In a shortcut, I could say, this court has no dissenting opinions and should never have them. For the same reason that the Constitutional Court of the Kingdom of Belgium has no dissenting opinions. You got me? It’s as simple as that. 

Because when the Flemish judges are in the majority and the Walloon judges dissent, or the reverse, it’s the end of the kingdom.

That is the same here. To have a court common to 27 states whose core task is to see to the uniformity of the law everywhere, we must contribute our talents to have the strongest [00:38:00] common opinion of that court. It belongs to the task setting of this court. If you don’t do that – let’s take the United States Supreme Court, and I speak now more as a comparative constitutionalist and an academic than as a President of this Court because I would not allow in my capacity as President of this Court to pronounce a value judgment. But what do they do de facto and speak to the justices of the Supreme Court? They don’t deliberate with one another. They do what your colleague, Professor Linos, said. Take the votes. That’s it, in the conference room. And then they say, “well, it seems to be five to four. You write for the majority and I’ll try to make a dissent and the others win.” And the majority and the dissent pitch up against one another. And of course, academics like my good friend, Joseph Weiler, they love it.

But that is not – and now I come back to [00:39:00] my capacity as President of the Court of Justice of the European Union – that is not the task setting of this Court. And we do have the dialectics with the opinion of the Advocate General. It’s an extremely smart system. Because the Advocate General, I told you, the opinion is not binding. The opinion, for the difficult cases, is only followed in one out of two cases, in the most sensitive cases, in the Grand Chamber for instance. That gives you a real dialectics of a different view, but European style. We combine the best of two worlds. We have the dialectics of making it visible, that this case could also have been approached in a different way, the AG opinion.

But we keep the advantage that the college of judges speaks with one voice for the cohesion of a relatively fragile European Union legal system. [00:40:00] It is based on trust and compliance. We don’t have like it was done after Brown v. Board of Education, 1954, that they sent the Federal Guard to, what was it, Mississippi or something, to uphold the p We don’t have that, and fortunately enough. The European Union is not a state, and the Court says it with so many words. So that is the core core essence. Now, when the Advocate General is followed, we refer to precise paragraphs of the opinion, and then you have to read two at once. Then we are consistent. 

That also happens in the U.S. Supreme Court, that you have a unanimous decision. Sometimes one tends to forget it, but it happens there as well or a quasi-unanimous, seven or eight against one or two. So that is then coherency with the opinion of the Advocate General. But more interesting is the case when the Advocate [00:41:00] General is not being followed. And this leads to a huge improvement and strengthening of the reasoning of the judgments leading to this collegiate pronouncement. Because the judges know that their opinion will be read against the backdrop of a possible different route to the solution of the case. So, in either way, I would even say the opinions with the most lasting influence are the dissenting opinions. That’s the dissent you speak of. So it’s really the European thing.

Now, you spoke about the analogy with the U.S. and with the, European Court of Human Rights. I already said the U.S. Supreme Court is a national supreme court of a nation whose existence is, I can say, after 230 years, entrenched. The European [00:42:00] Union legal order, albeit it’s now also there 70 years, it needs to rest on continuous trust building, on continuous mutual trust, on continuous persuasion.

That’s why I refer to Alexander Hamilton. We only have the force of persuasion, and it must be seen to the outside that all the judges have contributed their best possible talents, not to pitch up against one another, but to work with one another and to make the Union, in legal terms, work as a common legal order.

So that is one thing. That’s totally different in Strasbourg. The European Court of Human Rights has with the Court of Justice of the European Union only in common that somewhere in their name, they have the adjective European. It’s a totally different court. And I don’t say that in a demeaning way; on the contrary, they do very important work, but that is an international court.

I can’t underline it enough. [00:43:00] It’s a court where the only procedural route, as you well know, is an applicant in a direct action against a state. Where in the individual case of that particular applicant, very fact-related, the minimum protection of the European Convention on Human Rights has been complied with or not.

That’s like the court in The Hague, the International Court of Justice. It’s a case against a state, and sometimes in that court as well, there are interstate cases. So these are international courts. So we don’t fit in the category of the national supreme or constitutional courts, nor of the international courts.

And it’s telling that now in Europe, you may not yet be aware of this, there is a tendency away from dissenting opinions. So I’m coming in my capacity as President of the Court of Justice of European Union constantly in all the Member States’ capitals and in their [00:44:00] courts. That’s one of my tasks. And I represent the Court towards the outside and especially with the legal communities in the Member States.

And there are a number of the central and eastern European, somewhat newer democracies after all, it’s only 35 years. They say, “well, we should go for more cohesion In some [of those newer democracies] the rules allow it on paper, but in practice they don’t come to these dissents. A bit like the Marshall Court, as you’re probably aware of, it was only five justices, but there were hardly any dissents.

I think there has been one in the 30-plus, slightly over 30 years, of the Chief Justiceship of John Marshall. So it’s that same thing. But I conclude the case of Belgium is extremely telling because that is a state composed of two states basically, for historical reasons, and it’s a microcosmos of the [00:45:00] European Union.

About the length of the mandates, that is another phantom view, which academics – I’m also an academic but I’m not only an academic – have often sort of a dreamful view on, but of course they are not in these courts and in the practice. Let me explain this, and I must be very cautious because this is somewhat delicate what I’m now saying.

What is in your view the more independent position? A mandate of six years, which is renewable, but combined with the secrecy of deliberations and an absence of dissenting opinions, and 90 percent of the Member States automatically renewing the mandate when the judge is working. That’s our system. Or a system, Strasbourg, of nine years, where in the last three [00:46:00] years of the mandate, the judge starts negotiating with the government for the fall-back position when she or he returns because she or he has been appointed at 42 years of age and has done the nine years at 51 years of age and aspires to become the President of the constitutional court or the ambassador of the Member State in Rome and the Vatican because that’s rather attractive, or becomes the national ombudsman, wants to become judge here.

You got me. This is again one of these totally wrong abstract academic views. A long term non-renewable. If you were to say an appointment for 20 years, à la limite, I could agree. But of course the Member States would never agree. They have done nine years. The additional problem with these nine years is that you have people coming in at the beginning, [00:47:00] they have to learn the job and to go through the ranks and then they become Section President as they call it in Strasbourg and then Vice President and President. You know how long the mandate of the President there is in average, lately? 10 to 20 months [Professor Pollack: “Wow”]. Yes, always under two years because they are theoretically elected for three years, but I mean they never get there because the mandate is cut off there at nine years.

Frankly speaking, that is an international court and it may might work with them like at the the International Court of Justice. Here you visit a supreme / constitutional court of a common legal order for 27 Member States. A court which is integrated in the national judicial systems, a court which has to guard not just 20 articles on human rights, but ten[s of] thousands of pages of Union law legislation.

It’s like the federal government in the United States. And when the U.S. [00:48:00] Supreme Court visits here in September, we are framed for that meeting by two academics: Daniel Halberstam of Ann Arbor, Michigan, great friend of the house here, he was here six months as Dean Acheson Fellow 25 years ago, and speaks also perfect German, as you know. And then Armin von Bogdandy of the Max Planck Institute in Heidelberg, also a great friend of the house, and they’re framing that. So they’re both friends of mine, and they said, “Koen, we don’t have any difficulty to find case pairings, it’s – you can name any subject of U.S. Supreme Court law, and you have it here.” No, the Union is not a state, we said it with so many words, but it’s a common governance structure. And there the English language is fantastic because you have this word governance. French too, gouvernance, that does not exist in German or in Dutch, my mother tongue.

So we always say it [00:49:00] in English. Gemeenschappelijk governance niveau we say in Dutch. So we pick this governance term of English. And it’s in fact the Member States which agree to exercise their own sovereignty in common, in accordance with the ground rules of play laid down in the Treaties. And under respect of the Bill of Rights, and our Bill of Rights is the Charter of Fundamental Rights of the European Union, a very modern document, containing plenty of rights like privacy and personal data protection, which you will not find in the Bill of Rights in the United States, nor in the European Convention on Human Rights in Strasbourg, because that’s a minimum standard which dates back to 1950. So we’re operating really like that, and I think the whole system must be understood that way, whatever academics looking from afar might think about it, and with all due respect, they do very useful work, but when you are in the house and really shaping the case [00:50:00] law, you almost feel it, here there’s not a single colleague who is of a different view, and some who were academics before and have regretted them [i.e., those previous views]. “Dissenting opinions [are useful], to write scholarly articles.” But once they are in the Court, they say, “yes, now we understand why that would not work.” [Laughter]

Katerina Linos: So it’s very nice that you’re bringing Armin von Bogdandy and Daniel Halberstam to talk about specific cases and maybe we’ll turn to some specific cases that have been of great interest in the U.S. 

President Lenaerts: Absolutely.

Katerina Linos: The Schrems jurisprudence has has been very influential. It deals with the tension between the right to privacy we just mentioned and the need of American companies, Californian companies to move their data extensively. Some of the criticism is that the Court of Justice seems to defer more to European governments and to European government surveillance when it comes to the U.S., as compared to the U.S. government, rather than upholding a universal right to privacy. 

Does it make sense for [00:51:00] a European court to differentially scrutinize actions conducted by the U.S. government or the Chinese government? Should the Court be distinguishing between data harvesting when it’s done by a private party and if this private party is called Facebook or if it’s called TikTok how should we think about different leeways given for surveillance, especially after the Ukraine invasion, especially in a moment when at least in Brussels, the conversation has moved towards more talk about security, more talk about protectionism.

President Lenaerts: Well, first of all I would like to dispel the image that our Court would be more lenient with European government surveillance than American government surveillance. The very word surveillance is already causing [00:52:00] an itching reaction of this Court. So do not forget that this whole case law started not with Schrems, but with Digital Rights Ireland and Seitlinger already referred to.

In that case, as I said, it was national courts. The High Court in Ireland, they do not have, as you know, a separate constitutional court. So [that was] the Court first seized of the case. They questioned this newly adopted Directive 2006/24, which organized precisely traffic data retention, location data retention for all electronic communication means. They said, “is this still proportionate to the objective of national security protection or public security protection?” Like this.

And there, it was an entirely European case. And also the Constitutional Court in Austria. In addition, there were cases pending in about ten more constitutional [00:53:00] and supreme courts. And here again, I have to be slightly more technical, but I think it’s important for the audience to understand this.

The European Union is in essence legislating by directives. Directives, as you know, are a bit modeled after the German constitutional concept of Rahmengesetzgebung, that means framework legislation. It spells out a precise outcome to be reached, but the Bundesländer, in this case, the Member States of the European Union, are to decide on the form and the methods to reach that prescribed outcome within the time limit set for that outcome to be reached. So the Member States must make choices, and sometimes the range of choices they can make is rather wide, provided that they reach the outcome. Now that in turn leads to the following judicial path. The Member States do [00:54:00] their job, they comply with their obligation, and they adopt the legislation to implement such a directive. But that is a national law. That national law can be submitted for constitutional review, to the national constitutional court or to the supreme court or another court in Member States’ different judicial systems. And that’s exactly what happened. So in more than 15 states of the Member States, procedures were launched against the legislation, the national legislation, that is, implementing that directive.

These courts say, “hey, but this law does not do anything else than almost word for word transcribe that directive into the national legal fabric. So if there is something wrong with that law, there is probably something wrong at base with the directive.” So that’s a typical constellation where these courts refer for a preliminary ruling on the validity, that’s the word of art, [00:55:00] of the legislation.

But that is constitutional review. That is Marbury v. Madison, EU style. That is the verification of compliance with the constitution of the legislation adopted by the European Parliament and the Council of the European Union with the required majorities, the identical text in the two houses of the EU legislature. That is the setting. So a setting which is totally understandable. Now there, we were very severe in saying that the traffic data and the location data revealed so much about privacy that in a way we had to be severe for the legislature that they could only order data to be retained and authorize access to data when this was strictly necessary for national security or beyond that for the gravest [00:56:00] sort of threats for public security.

That is the core essence. So, when you listen to this, it’s really the opposite, that this Court would be lenient for European government surveillance. It’s the exact opposite. We developed that case law further in Tele Irish case, so it’s now a vested line of case law.

And then comes Schrems. And Schrems, as you may know, when he brought his first case, where did he bring the case? In Ireland. That’s European Union law, the forum of the defendant, the Facebook, now Meta, EU-wide seat, is based in the Dublin docks, that is the rehabilitated area of Dublin, where now international companies are being established.[00:57:00] 

Very well. So, and he says, well, but Facebook brings over my data to the United States, and it’s kept on a server somewhere in Hawai’i, if I’m well informed, in any event in the United States jurisdiction. And the Commission has, in the year 2000, said that there was an equivalence of the protection of personal data between the U.S. and the EU. But in fact, that decision, that was long before we knew everything about the practices of the NSA. And then [these] practices came to the surface, which are exactly the things which we precisely condemned, in this Digital Rights Ireland and Seitlinger case. So he said, “the directive [is invalid].” Now it’s of course the GDPR, the General Data Protection Regulation, which is a successor – and notice that they went from a directive to a regulation.

Why, do you think? Because the regulation is directly applicable and does no longer need national [00:58:00] implementing legislation. So it also shows that, albeit the Union is not a state, the common governance structure is often, by the will of the Member States, strengthened because they want to be absolutely sure that the same law is applied everywhere, because otherwise, the risk exists that some might take it a little bit more lenient than others. So, equality is very important. So that’s how it works. And so these two texts, the 95 Directive and then the 2016 GDPR, they provide the power for the Commission, the competence for the Commission, as the executive of the European Union, to negotiate with the executive of third states, in this case the U.S. government, equivalence agreements. And so in the first Schrems case, this court said that the Commission clearly could no longer in, 2015, demonstrate that this 15 years earlier decision, which can be [00:59:00] modified at all times, was still adequate. We said there is no proof of equivalence and then we had to say why that was so, but it was a repetition, so there is certainly no double standard.

On the contrary, it is by extending the very exigent standards of the European Union in its core elements to these agreements with third states, not only with the United States, with all our third states, that we said the Commission has to do its homework over again. And it did its homework together with the U.S. administration over again. Schrems was not satisfied. The case was again brought before the Irish courts which referred, and we still felt some limits which were still an obstacle to equivalence. A new agreement was struck with the Biden Administration, and we may have to rule on this again. But of course, our case law makes it very clear that [01:00:00] equivalence is not identicality.

So it is not that we will require that all these third states do exactly the same, and with the same procedures, and the same norms, etc. But the core elements must be assured. What are the core elements? That there is judicial review possible on the grounds on which a public authority seeks access to this data and that this judicial review, must be equally possible for non-American citizens and for American citizens, because there, we know it also from Guantanamo case law – which of course is another far more dramatic context – but the European Union has this, and all European states, by the way, have this as a basic rule.

We never distinguish when it comes to access to courts, between EU citizens and non-EU citizens. An American citizen who is [01:01:00] living here or who is as a tourist subject to a police control [inspection] and his iPhone is being taken and read out, that person will have exactly the same protection and access to courts and everything. Also the National Data Protection Authorities. The person is already returned, [he] can claim damages when wrongful use has been made of his personal data without a single distinction than when it happened to me as an EU citizen.

 That is, of course, not guaranteed, as you all know, in the United States. So all these things made an obstacle. But it is definitely incorrect to start from the premise that we trust the U.S. government less than we trust the European governments. No, we simply want to make sure that the core criteria for retaining the data, for getting access to the data, and the judicial protection against abuse of the data, be in essence equivalent.

That’s at least what the [01:02:00] equivalent rule means. And the Schrems 1 and even more, the Schrems 2 judgment, have made it clear what should be the essence of the newly to be negotiated agreement between the U.S. and the European Union. I’m told that now there is that new agreement, there is a new equivalence decision, and we will see whether further cases come.

There, of course, I should stop because I can’t say anything at this stage because it might be pending. 

Katerina Linos: So just to recap, the scope of the national security exception is the same, whether it’s the French government or the American government. 

President Lenaerts: Of course. Absolutely. Yes. yeah, yeah, 

Katerina Linos: It doesn’t matter whether we are in an era when we worry tremendously about China and Russia versus in the early 1990s when we’re, “we love one another.”

President Lenaerts: No, but that’s a different question what you now add. This new era could of course lead to the finding that there is now an actual threat to national [01:03:00] security, both in Europe and in the United States. So yes, that does matter. But equally so in Europe and in the U.S. So the context, of course, developed, I would add, unfortunately, but yeah, we are taking that into account. That speaks for itself. Yeah, absolutely. But that’s more in the application of our jurisprudential balancing. It’s basically the balancing between privacy and security. And of course that balancing in, in actual fact will develop with all these risks developing. The conceptual framework is still the same, but of course what you put on the two sides of the balance [scale] will develop.

And that’s maybe a footnote, you know, I’m a comparative constitutionalist and especially geared towards the U.S. federal system. I read a marvellous book of an academic colleague of ours of Columbia Law School [01:04:00] in New York. I do not know the person personally. The man is called Jamal Greene. 

Katerina Linos: Yes. 

President Lenaerts: J. A. M. A. L. and G. R. E. E. N. E. He wrote a book which I came across when searching in one of these constitutional law type of cases here. Together with our research department, I said, “could you find something about the balancing of rights in other jurisdictions than the EU?”

Because we do that comparative law context, and I also had to prepare a speech. And he showed up, a book which Professor Jamal Greene recently wrote, “How Rights Went Wrong,” and I started reading it and I read it in one stroke. I had also a few days which I could devote to it. It’s a marvelous account. He compares the U.S. system with the European system. [01:05:00] And he says, in America, there are relatively few rights, but they’re then thought through to the absolute of these rights, and outside, there is nothing. Nothing in the sense that every right will be seen in this absolute sort of throw forward. And he notes, for instance, free speech, access to information, which is of course also here a core right, let that be clear.

But he said sometimes this right may have to be balanced to other things. And he quotes a case of apparently a law of Vermont. I’ve not checked the case directly myself, but I read it in the book, which was struck down by the Supreme Court in Washington. And the law of Vermont was limiting the right of access by pharmaceutical companies to medical [01:06:00] prescription data of physicians.

Because these pharmaceutical companies said, “yes, it’s our access of information and we need these data in order to be able to make sort of targeted publicity, advertising, and that’s commercial speech.” We all know the case law, the commercial speech, it’s all First Amendment freedom of expression.

But Professor Greene explains the competing right that you have, the personal data protection and the privacy protection of the people who are the subject of these medical prescriptions, do not come in in the whole judicial discourse. And of course, when you read in original intent terms yes, then you have, of course, we say, “privacy, security, personal data.”

It’s not in the Constitution. I know there is [01:07:00] Justice Goldberg, in Griswold against Connecticut, where they [the U.S. Supreme Court] spoke about the penumbras of all the other rights of the Bill of Rights to sneak privacy in, but it’s still a relatively shaky balance. And it’s a construct which some originalists in the United States are still pointing at that case [of] 1965, to say, it was Goldberg – the opinion of the Court – to say, you know, it’s from there onwards that it went wrong, because it’s not in the Constitution – and Professor Greene is referring to this case, and he says, that is totally different in Europe.

And so in this Court, it’s a concrete example of all what I said before about the functioning of this Court, a court common to 27 states with very different sensitivities also in terms of constitution building and constitutionalism. It is important that we take into account, it’s almost in our judicial DNA, all the competing rights and [01:08:00] values.

Of course, we work on the basis of, very modern texts. Even at the European level, the Charter of Fundamental Rights of the European Union has been drafted in 2000 and it has become binding primary law of the Union the 1st of December 2009, with the entry into force of the Lisbon Treaty. So with all of that, you see that we have very concrete support and so the balancing is what we do in every case.

So access of information, yes, but not when it comes to sensitive personal data, health data is Article 9 of the GDPR. Those are the most sensitive data. So this case would absolutely sure have gone out but haut la main [an expression meaning “easily” in French] and even not in the Grand Chamber almost with three judges because the case is so obvious. 

The commercial speech of a pharmaceutical company cannot prevail over your or my intimate [01:09:00] health issues which I’ve discussed with a doctor who made medical prescriptions etc. So that is what we speak about. So, and it’s not a criticism as such, it only means that we have on fundamental issues different approaches.

The death penalty is another crucial thing. Some speak about the right to life in an abortion context, but a death penalty is allowed. You know a country, having the death penalty, cannot become a Member of the European Union. So, again, I’m not speaking about right or wrong, but it shows that we have, as comparatists, always to be very sensitive to see the global picture.

That is what we are talking about, and we do that very fruitfully with the colleagues of the United States Supreme Court in these exchanges. That’s also what the exchanges serve to do . It’s not judging one [01:10:00] another, it’s learning from one another, but also making known to the other side what is in essence different. and that you can only do from the inside,, speaking with one another. and These two academic colleagues are only there, in fact, to single out a few cases, but the dialogue is really between the judges.

That’s how it works. 

Mark Pollack: We’ve already started talking about data privacy and fundamental rights. The set of legal issues facing the Court has changed substantially even since you’ve been here. From the constitutional issues of the 60s to the internal market issues of the 70s and 80s.

What do you see beyond the issues we’ve already talked about? What do you see as the fundamental legal or constitutional issues coming before the Court today? 

President Lenaerts: Well, thank you very much. You’re so right with this question. In the 35 years that I’m now an EU judge, counting my General Court term and my Court of Justice term, the Court of Justice’s fields of [01:11:00] activity and, the specter of it’s activity is in fact, and that’s not surprising, the direct consequence of the development of the Treaties and the successive steps taken by the Member States – and by no one else – to put ever more responsibilities in the common governance structure and to confer – that’s the term of art in Europe, it’s not attribution of competence, it’s conferral of competence – on the European Union legislature, the European Parliament, the Council of the European Union and the Commission, acting at qualified majority in the Council, parliamentary majority in the Parliament, the power to make laws in ever more fields.

I also stress these majorities because it also shows again the common governance structure character of the European Union. This is not a classical international organization, just like this Court is not an international court. The European Union is not a classical international organization. [01:12:00] Why?

Member States can be bound by legislation to which they did not adhere. When the majority is there, then they accept, although they were not in favor, the fact that there is a need to have a common legislation. Even if you don’t share its substance, you’re bound by it. Of course, the rules of play must have been strictly complied with. And if there is a doubt as to the voting system, as to the correct legal basis in the Treaty, which determines in turn the voting requirements in the institutions, it comes to us. That’s clear. Now, with that said, the successive Treaty amendments, not just that new subject matters were entrusted to the European Union, but also that the voting requirements were relaxed. Many things which required unanimity at the start can now be decided with qualified majority.

That’s the importance of what I just said. So you get now much more legislation in [01:13:00] fields which were already a long time in the Treaties, but which were sleeping there, because they were subject to the unanimity rule. Lisbon is now sort of the most integrative stage at which the European Union has ever had when you combine the number and the width of subject matters entrusted to the Union and the voting requirements in the Council and in the Parliament.

So that is very important. When this Court started, it was a purely economic court. The Common Market of Coal and Steel for six years, then the Common Market, tout cours [the equivalent of “period/full stop” in French]. The first qualitative shift occurred with five words introduced by the Single European Act into the original Treaties of Rome in 1987.

And these five words are: an [01:14:00] area without internal frontiers. Full stop. That’s the Schengen area. The Schengen area existed between the Benelux countries, France and Germany. Then extended to Italy, and now, as you know, it covers almost the whole continent, and those not yet covered, it’s simply transitional, because there’s still some practical arrangements for outside border control to be arranged, I’m thinking of Bulgaria and Romania. But the vocation of all continental states is Schengen. And as you know, it is so successful, that also non-EU Member States, on the basis of bilateral agreements, are part of Schengen. Norway, Iceland, Liechtenstein, but also Switzerland, which is not in the European Economic Area, it’s in Schengen.

If you go here to Zurich by car, you don’t see a single border guard, at the [01:15:00] border between France and Switzerland. So it’s a very successful formula. Why do I put the focus so center stage on that? Once you no longer have the right as a state to control your borders, you arrive in a state like the United States of America, where you go between the 50 states, like between the provinces of a single state.

It’s one area. It’s one territory. In the U.S. you have for that purpose mechanisms like Full Faith and Credit. You have compacts among states for the extradition of criminals. Well, you guess the rest. We have all the same here. Judicial cooperation in civil and commercial matters. Brussels 1, [01:16:00] Brussels 2, Rome 1, Rome 2, Rome 3, Rome 4.

Coded language for private international law. Which more integrated than in the United States of America is all federal law here adopted by this legislative process, which I just described. So conflicts of jurisdiction, conflicts of laws in the criminal field, the European Arrest Warrant – highly successful, so successful that it is the first thing which the United Kingdom on the basis of the now bilateral EU-UK trading cooperation agreement wanted to keep.

And they kept it. And it’s very good. So the UK remains in the European arrest warrant system. Named differently, but identical in substance. So, we speak about police and criminal justice. We speak about civil and commercial justice. Including family law matters, inheritance matters. Things which have [01:17:00] nothing to do with the initial common market.

Asylum and immigration, of course. Because once you have no borders control checked inside, the ones crossing the external borders are in the area as a whole. So, asylum and immigration. And then, you want, of course, to be sure that when you make use of your movement [rights] as Union citizens, that you have, roughly speaking, the same human rights being guaranteed everywhere.

Yes, yes, you feel me? [Then] comes the 14th Amendment. The incorporation [doctrine], Palko v. Connecticut. All the rights inherent in the ordered liberty of the Bill of Rights over the 14th Amendment as federal human rights opposable against the states. So here, of course, we say it is within the field of application of Union law, Article 51, first paragraph of the Charter of Fundamental Rights, that the Charter is applicable as the Charter in the national [01:18:00] context.

But of course, all those making use of their free movement, that’s already sufficient to be in that realm. That pretty much resembles a Commerce Clause, doesn’t it? So everything is basically interstate. So we have had this whole development. So we now have many cases on the Charter combined with one or another rule of substantive Union law, very often free movement rules.

And yes, it [the Court] does us rule on same-sex marriage on two mothers having together a child and all these things. We have our Obergefell case. I always told my students you replace Maryland by Belgium and Ohio by Romania, and it’s the exact same case. But, as I wrote in the American Journal of Comparative Law on that case, what appears is that we only went halfway.

We took the Full Faith and Credit part. So yes, Ohio is to recognize the Maryland marriage. Romania is to [01:19:00] recognize the homosexual marriage concluded between two men in Belgium. but The Member States are not as a matter of Union law, to introduce in the domestic field same-sex marriage. There we refer to the principle of conferral, that competence has not been conferred. It remains national law. But of course we say yes there is an inequality. So we saw what Justice Kennedy wrote in the five against four, we read all of opinion so we followed in fact the Kennedy opinion for the Full Faith and Credit part and the dissent written by Chief Justice Roberts, for the equality part. We said that that is a matter of national law and the national law can then either by its constitutional court say well as a matter of the national equality clause we now have to introduce that, or the parliament can take measures. That’s for the national law to decide. And so that’s [01:20:00] how we balance always unity and diversity and those are now the main constitutional issues where we try to balance unity and diversity.

The unity is to make all the Union law core principles and rules work like free movement, equal treatment, all things like that. And then the diversity field is like in any mature federal system where the global system can in fact tolerate without being threatened in its existence, diverse choices made in the Member States.

And as a matter of fact, in Romania, after our judgment, they said, yes, there is a problem of equality. And the parliament adopted the registered partnership, which is the first step. And many of the other former communist countries in Central and Eastern Europe, they have now introduced similar legislation after our case law, as a family law competence, which is their own.

And in Estonia, after all, a former Soviet [01:21:00] republic until 1991, they have now a year ago, in May 2023, introduced same-sex marriage. So you see, we work through persuasion with a single judgment, we point to the equality point, but we said it needs to be taken care of, but that is for the Member States to do. And they do. So that is how it works, you see, in a very practical way. When I was a judge in the General Court, I did competition law and state aid cases. And then I came here and we did essentially free movement cases, but also of goods and services. it [The ECJ] was an economic court, and it shifted, strongly with the full force of the Lisbon Treaty. And now we have [what] we call the Area of Freedom, Security and Justice. It’s all these topics I was mentioning: non-discrimination law; constitutional issues of all sorts; on the functioning of the common governance rules, on the Charter of Fundamental Rights.

It’s relatively rare [01:22:00] now that we have a purely economic case. So we’re really operating like a mainstream constitutional court. 

Katerina Linos: I would love to ask a ask a final question. 

President Lenaerts: Final question. But I’ve said a lot, so you can, certainly. 

Katerina Linos: So final question is about the press and about your role in opening up the Court of Justice. We understand that there’s a new pilot program to perhaps live stream some decisions.

The American court has press coverage even before the decision is issued in anticipation of the decision . Maybe a decision will come down today and television Stations are ready. All the journalists are ready. What is your view on the existing press coverage and to the extent you’re expanding it, how are you thinking about that shift? 

President Lenaerts: Well, I’m extremely happy to finish with that question because that has maybe been in terms of the understanding of my task as President of the Court, the major vis previous [01:23:00] periods. Of course that is without any criticism to my predecessors who were great Presidents and great judges also. But times have changed and it was necessary there to sort of make a renewal of the practice.

So it all starts with the representative role of the President being the communicator of what we actually do here. So I’m constantly in the Member States talking with all the stakeholders in our case law: the judiciary, the bar, academia, political people, government people, sometimes the state Presidents, and also the press.

So I always give press conferences, and I speak in a very free and open way like I do here. It’s maybe also my academic background. I’m a communicator, an oral communicator. I play it out. I happen to speak fluently in four languages, but also technically in two more.

I understand a few more, even. It’s also a matter of [01:24:00] proximity, because this Court really should be part of the national law. Union law is Estonian law, is Portuguese law, is Greek law, is Dutch law, is Belgian law, et cetera. I can say it 27 times. So Union law is not on the Kirchberg in Luxembourg, Union law is done in the field in all our Member States. Now, for that reason, I’ve been able to convince my colleagues and they had initially divergent views, but again, we have the same deliberative process, not just for adopting our judgments, but also for our internal functioning and our sort of common management of the Court.

Everything is very participative here. The President is not a hierarchical boss of anything. The President is a facilitator to make it happen between the colleagues. So after some deliberation, in the good Habermasian style of deliberative democracy, we have come to the view that our [01:25:00] hearings must be streamed.

And I can announce you that we will extend this practice on the 1st of October 2024. We now stream the hearings of the Grand Chamber and of the Full Court as a matter of practice, but it’s only, it was a pilot project done so that it is 24 hours on our website. Now we have succeeded in extending that period as a matter of principle for a full month.

It will be on the website. And then, of course, we will still have it here in a vidéothèque. And so if someone for, for instance, academic purposes wants to see it, there is a possibility of viewing it even years later here internally in the house. Or a judge who comes in to office later on and says, “hey, but that case, which is important in the case I’m now dealing with, and it’s worded in the judgment so and so, I would like to take a look at these [01:26:00] pleadings, how the the argument was exactly formulated when the Court replied the way it did.” That colleague can see it here in the house. So it will be a month available for everyone, and it will be afterwards available for specific purposes. And I did this because the hearings are public. Justice must be seen to be done.

But when we made the analysis, we saw that about 90 percent of the people in the room, they stem from the three Benelux countries and the adjacent regions from France and Germany. With the European Union spanning from Estonia to Portugal and from Ireland to Greece – I’ve taken the diagonals as you see through the map of the Union – that’s publicity of the hearings.

And that is finally the argument which convinced the colleagues here, to ask the Council, because we have to ask the Council. The Council must [01:27:00] agree, because our Rules of Procedure must be approved by the Council, that is the Member States. They do it at qualified majority, but de facto, it’s consensual, and that’s also good that way.

So, we now have the agreement only in the past two weeks, the agreement was struck. I went personally to Brussels to negotiate the last straight line with the Member States representatives to have this streaming. And when I said that argument, it convinced everyone, even those who are a bit reluctant, because indeed, and I’m aware of this, it might by some be feared that, especially initially, people might sort of speak or behave a little bit more cautiously when they know it’s live streamed and it will be seen during a month after the thing.

But you know, we do it now in this pilot project for slightly over two years and no one even realizes that there is a camera somewhere taking it up. It’s also an invisible [01:28:00] camera. So that’s how it works. But I think it’s essential for the legitimacy of our work. Justice must be seen to be done.

And the only thing which is secret, that is the deliberations, as I said. It’s even in our oath of office. All the rest should be a glass house. And that is the basic,attitude of the Court as a college – two courts, and as an institution. So we communicate on the social media, we communicate with you, we communicate with the national press.

I’m often taking part also in national press conferences on the national judiciary, where I’m then invited, because as I said, Union law is integrated in the national fabric, and also the national press conferences on judicial matters, they say, “well, we are not complete without the European Union judge being there.”

So it’s, especially in Germany, there is a big tradition of the Justizpressekonferenz. yeah, I’m regularly invited there along with the Presidents of all the supreme courts in Germany. And that’s how it should [01:29:00] be. It’s really this image. We are integrated in the national systems. 

And that explains the necessity of this publicity. 

Katerina Linos: Thank you so much. 

President Lenaerts: Thank you. 

Katerina Linos: Here are some things that will stick with me from this interview. President Lenaerts calls the Court of Justice of the EU “the Help Desk,” which national judges can call when they have a problem of interpretation of the EU Treaties. He also explained the reason for consensus opinions very succinctly by comparing the European legal order to the Belgian legal order: because when the Flemish judges are in the majority and the Walloon judges dissent, or the reverse, it’s the end of the kingdom.

He praised Jamal Greene’s work to agree with him that in America, there are few rights that are thought of as absolute, whereas in Europe, there are many rights which always need to be balanced against one another. And he celebrated the Coman case on rights of same-sex couples, [01:30:00] explaining how the CJEU was able to thread the needle to follow the Obergefell majority in part and the Obergefell dissent in part.

And he concluded with efforts to dramatically increase publicity for the CJEU, including by live streaming – publicity efforts to which we hope the Borderlines archive will contribute. 

Mark Pollack: We want to thank the many people who made this interview and the broader series of which it was part possible. In Luxembourg, we’d like to thank: President Lenaerts for agreeing to our proposal to interview him and his colleagues; Judge Thomas von Danwitz for serving as a generous guide and host both before and during our visit; to Zita Avas and her amazing staff at the Visitor’s Office of the Court; and to the many staff members of the Court, who have helped us from beginning to end. 

In Berkeley, we’d like to thank Dean Erwin Chemerinsky for encouraging and supporting this unlikely project from the beginning, Keith Hernandez for his superb engineering and recording support, and above all, [01:31:00] Toni Mendicino, who served as the producer and organizational backbone of the project, working to turn a rough set of recorded interviews into a record that we hope will stand the test of time.

Katerina Linos: For more information about the many people who contributed to this series, and for links to cases, speeches, and additional resources, please check out the show notes.

If you enjoyed this episode, please subscribe to Borderlines.