This special episode features UC Berkeley Law Dean Erwin Chemerinsky in conversation with Professor Katerina Linos and Temple Law Professor Mark Pollack introducing a wider audience to the European Union Court of Justice and a special series of Linos’ “Borderlines” podcast on the court.
Together, these three leading legal educators introduce listeners to the form and function of the EUCJ and contrast its civil law history and consensus methodology with the U.S. common law heritage utilizing dissenting opinions. Learn about the court’s traditions, scope, and unique Advocate General role, get a glimpse behind the scenes of the massive EU caseload, and compare fundamentals like sovereignty over states, the role of voting in chambers, and balancing accessibility and privacy.
“Borderlines“ features exclusive content with the world’s leading international law experts. Check out recent interviews with former ICJ President Donoghue and ICC President Hofmański.
About:
More Just from Berkeley Law is a podcast about how law schools can and must play a role in solving society’s most difficult problems.
The rule of law — and the role of the law — has never been more important. In these difficult times, law schools can, and must, play an active role in finding solutions. But how? Each episode of More Just starts with a problem, then explores potential solutions, featuring Dean Erwin Chemerinsky as well as other deans, professors, students, and advocates, about how they’re making law schools matter.
Have a question about teaching or studying law, or a topic you’d like Dean Chemerinsky to explore? Email us at morejust@berkeley.edu and tell us what’s on your mind.
Production by Yellow Armadillo Studios.
Episode Transcript
Erwin Chemerinsky: Welcome to More Just, a podcast about how law schools can make a difference.
I’m here with Katerina Linos, a professor at Berkeley Law, and Mark Pollack, professor at Temple University.
We’re going to be talking about the European Court of Justice. The European Court of Justice is Europe’s highest court, with hundreds of cases each year from the European Union’s 27 member countries.
Unlike international courts, which often wait for a state to sue another state after exhausting diplomatic remedies, European Court of Justice rulings involve a broad range of public and private parties and reach diverse domestic and national issues. Mark and Katerina interviewed ten judges of the European Court of Justice, including the president and vice president, as well as six Advocates General, touching on each judge’s professional background, their philosophy of judging, their roles, and views about some of the most famous and controversial cases to come before the Court in recent years.
In today’s episode, we’ll talk about Europe’s highest court – what it is, what it does, why those of the United States should care about it. We’ll also talk about what one learns from talking to many members of a court, rather than relying solely on the Court’s written output.
Erwin Chemerinsky: Mark, it’s wonderful to get to talk with you. Could you tell me, what is the Court of Justice of the European Union? How does it fit into the universe of international courts?
Mark Pollack: Well, thank you for having us, Erwin. The Court of Justice of the European Union, as you just said, is the top court in Europe, in the European Union. It has jurisdiction over 27 member countries, ranging from the original, mostly rich, Western European members like France and Germany but also a dozen more recent members from Eastern and Southern Europe, like Poland and Hungary.
So, today, when you hear about this court, you’ll hear it referred to as the Court of Justice of the European Union, or the CJEU. But that’s actually an umbrella term for two different courts. Both of them are headquartered in an enormous complex of buildings that Katerina and I visited in the modern Kirchberg neighborhood of Luxembourg.
And those two courts are called the Court of Justice, or the ECJ, and the General Court, respectively. So the General [00:02:00] Court is the lower court of the EU judicial system, and it has a specialized jurisdiction that includes mostly competition or antitrust cases or trademark cases.
The Court of Justice, sometimes referred to, again, as the ECJ, is the highest court within the EU legal system. It is made up of 27 judges. Those judges meet in chambers that can vary in size from three to five for relatively routine cases, up to a Grand Chamber of 15 judges for novel or complicated or controversial cases, up to the entire Court of 27. And those judges in turn are assisted by eleven Advocates General who offer preliminary opinions on novel cases and advise the judges on the legal rulings raised by other cases.
Now, you asked how the Court is similar to, or different from other international courts that folks may have [00:03:00] heard of. And it’s different in, I would say, at least three or four different ways. It is busier than most other international courts. As you pointed out, it issues about 800 judgments a year, which is more than any other court except for the European Court of Human Rights in Strasbourg.
So it is a very busy court. It’s also a court that is interpreting a huge body of law. The president of the Court, Judge Lenaerts, said to us, “The Strasbourg Court interprets 20-some articles of the European Convention of Human Rights; we interpret about 20,000 pages of European treaties and law.”
And the Court is also much more enmeshed and intertwined with national courts and national legal orders than really any other court, including the Strasbourg Court.
And I would say finally, and I don’t know if we want to get into this, but the Court of Justice is [00:04:00] quite different procedurally than many of the other courts that we’ll be talking about, most notably, for example, in the fact that it always issues collective per curiam rulings and does not have any dissenting or concurring separate opinions.
So lots of ways that the Court is unique.
Erwin Chemerinsky: There’s so many things you said that I want to follow up on. Katerina, can you give us some examples of some important decisions that it’s made recently?
Katerina Linos: Sure. I’ll start with some examples of high-profile conflicts with the top courts in Germany and the top courts in Hungary and Poland. The German Constitutional Court wanted to make sure that European institutions — including the European Central Bank, including the European Commission — spent German taxpayer money in accordance with the treaties. They did not want this hard-earned money to flow [00:05:00] to “profligate governments” in Southern Europe given that the EU treaties said that taxing and spending is a matter for the individual Member States. So there were a big set of disputes. And at the end of the day, the German Constitutional Court backed down. It said that the most innovative program for financing European efforts to fight climate change, digital transformations, passes muster, even though it was a trillion dollars as a COVID emergency measure.
So the big conflict these days is with the constitutional courts of Hungary and Poland. Hungary and Poland have undermined the rule of law in pretty radical ways in the last decade: replacing judges on top courts, silencing opposition, making sure the media is controlled by the party. And the [00:06:00] European Union has recently started using its financial might to hold back billions.
So this is a very big debate and the Court sides with the European Commission. It says the money should be withheld. It puts in place monetary penalties that are significant and increase every day that its decisions are not implemented. Interestingly, the Parliament is suing the Commission for not moving — not cutting off funds fast enough. And this is certainly upsetting the Orbán government.
Poland, through elections, has changed orientation and is resolving some of these issues. But they are fascinating political issues and also fascinating legal issues, as the articles used are very broad, and some would say non-justiciable, provisions in the treaty.
Erwin Chemerinsky: It immediately brings to mind a question about what is the [00:07:00] relationship between the Court of Justice of the European Union and the courts of the individual nations.
Does the Court of Justice have sovereignty over the courts of individual nations? Can the courts of individual nations say, “That’s nice, but we’re going to ignore your ruling.”?
Mark Pollack: That’s a great question, and as I said, the Court of Justice is intertwined with national courts in a way that others aren’t.
Now about 60 percent of all the cases that come before the Court of Justice come from national courts via a system that’s called the preliminary reference procedure. So, if a national court is faced in the context of its case with an issue of European Union law that is novel, it is supposed to stop proceedings and send a question, or multiple questions, up to the Court of Justice in Luxembourg and say, “We’ve been faced with an issue [00:08:00] that relates to, you know, ‘Article 12 of Directive Whatever,’ and we need to know how to interpret that Directive.” So they will stay the proceedings. The question will go up to the Court of Justice. The Court of Justice will usually take between a year and two years, although there’s an accelerated procedure, and the Court will say, “This is the proper way to interpret Article 12 of the Directive,” and send that preliminary ruling back down to the national court. The national court is then tasked with applying that ruling to the case in question.
Now, you asked whether it was supreme. Way back in the 1960s, the Court ruled that EU law was indeed supreme over national law and that therefore, in a sense, has primacy over the national judges.
The German case that Katerina just mentioned, was one of the few where a national court has turned around and said, “We don’t like the judgment you [00:09:00] just sent us. We think you got it wrong.” But in the vast majority of cases, national courts, both higher courts and lower courts, accept the Court of Justice’s interpretation of EU law and then apply it on the ground.
Katerina Linos: Some of the debate has been about what is EU law and what is not EU law. So everyone agrees that if it’s a question of EU law, the Court of Justice has the final word. And the Court of Justice has for decades been using principles equivalent to our commerce between the states to say, “Everything is a subject of EU law.” Because it might be that criminal law or migration or some education or taxation is a subject for national law, but “Look, this family is crossing borders,” therefore there’s a conflict with a fundamental principle of EU law. And in this way it has been expanding its jurisdiction. The European Commission has been working to push the interpretation of the treaties as far as possible.
And [00:10:00] this question of who will check whether the European Court of Justice is staying within its competences, who will check whether the European Commission is staying within its delegated powers was something the German Court had said for a while, “We will do.” But now it seems that they’ve given up on that task.
Erwin Chemerinsky: I have two quick follow up questions. One is, you refer to the European Commission. I think it’s important to explain what it is and how it relates to this court. And the other is a more general question. From what you and Mark are saying, it doesn’t sound like compliance with the decisions of this court is an issue, though it could be.
Katerina Linos: So let me say a couple of things about the European Commission. The European Commission is the world’s most powerful bureaucracy. It’s based in Brussels, and like every bureaucracy, it has the task of enforcing the law and making sure that a broad legislative principle is translated into something that is specific. In addition, however, it has a unique role as the executive. So [00:11:00] in order to propose legislation, the European Commission must author it. Then they need agreement between the Council and the Parliament. The Council and the Parliament can’t easily redraft something absent unanimity.
So the European Commission has enormous power in legislative agenda setting that most bureaucracies do not. So it’s a powerful Brussels bureaucracy that also takes enforcement of EU law very seriously and aggressively pursues governments that are not implementing key commitments.
Erwin Chemerinsky: That makes sense.
And Mark, am I taking what both you and Katerina said accurately, that though compliance could be an issue, it really hasn’t been very often?
Mark Pollack: So I would say that in most of the cases that we’ve already mentioned, which are these preliminary ruling cases, the national courts faithfully [00:12:00] accept and execute the interpretation of EU law that the Court gives them.
There’s another set of cases, which constitute about 20 percent of all the cases that the Court of Justice gets, and these are known as infringement proceedings. And this is precisely those cases in which the European Commission decides that a Member State has violated some principle of EU law and takes that Member State to the Court of Justice. Again, these are called infringement proceedings and they usually take the form of Commission v. X: Commission v. France, Commission v. Poland, Commission v. Hungary. And in these cases, the Court of Justices is simply asked, “How should we interpret EU law?” And, “Is the behavior that a Member State is engaging in a violation of EU law?”
Back in the day, back when I was studying EU law in the 90s, a lot of these cases were about free movement of goods and services and labor and capital. They’re [00:13:00] still largely about that, but they are also about new issues today.
So for example, there’ve been a series of cases, Commission v. Poland, about the independence of the Polish judiciary and the Commission’s claim that Poland was violating the independence of its own judiciary, of the Polish judiciary. And the Court in a series of rulings ruled that indeed a number of actions that the previous PiS government in Poland had taken had violated the independence of its own judges.
And the Polish government was supposed to comply. The Polish government did not immediately comply. And so this is one of those extraordinary cases where a Member State fails to comply or drags out compliance. These are not typical cases, but they’re the ones we tend to hear about.
Erwin Chemerinsky: My field is United States constitutional law, so I focus on the [00:14:00] United States Supreme Court. I’m interested in the ways in which this Court is similar to or different from the Supreme Court. Now, you’ve mentioned, for example, that this Court decides 800 cases or matters a year. The U.S. Supreme Court last year decided 59 cases with side opinions after briefing and oral argument.
You said that all of the decisions of this Court are per curiam, whereas the United States Supreme Court, the vast majority of decisions have an identified author, and now increasingly, concurring opinions and offered dissents. And you say, “That doesn’t happen here.” I’d be really interested to hear more about ways in which this is like or different from the United States Supreme Court.
Are there issues about how to interpret documents in the way the Supreme Court struggles with how to interpret the Constitution? Does it control its own docket in the way the Supreme Court does?
Katerina Linos: Mark has written extensively about dissents in international courts and the way they work. So I’m going to [00:15:00] leave the questions about what it means to have 15 judges need to agree not only on a result and reasoning and how that works for Mark. But I’ll start by talking about some of the other issues.
So the Court for a while, like most international courts, did not have the caseload it wanted. It had to encourage courts, lower courts, to send interesting questions. That is not the problem they have today. Today, they say, “We have way too many cases, we have way too many cases that are significant, so we need to decide in chambers of 15.”
They set up the lower court to deal with all of the really significant financially, but technically complicated, cases. All the U.S. companies are challenging designations, and these cases go to what used to be called the Court of First Instance, now is a General Court. So, taxation, antitrust.
They had to set up a whole court for that. They’ve set up emergency procedures to deal with arrest warrants and [00:16:00] migration. So they’re trying to manage the caseload because they have far too many cases. That said, the treaties have changed, and more importantly, the, the legislation that the Commission produces with the Parliament and the Council is just so voluminous that there’s so many novel issues that they need to still take on many, many cases in large formations.
Erwin Chemerinsky: Do they control their own docket?
Katerina Linos: No.
Erwin Chemerinsky: So it’s obligatory jurisdiction, at least in some of the cases?
Katerina Linos: In theory, they could hear disputes: France versus Germany. They don’t get those disputes. That’s what international courts do.
That’s a tiny fraction. There are some other decisions about personnel cases. The Commission brings specialized cases. They hear all of those. Preliminary references are the bulk. And it’s some judge saying, “It looks to me like this provision of Dutch law on asylum is not consistent with European law on [00:17:00] asylum.” For example, this asylum seeker didn’t bring up this problem on their own, and does European law require a judge to bring it on their own motion?
So any judge asks questions, they have now started saying, “Hey. This looks like a question that is open, but in fact, we’ve answered it before.” So they’re trying to control their docket that way by saying, “These questions have been answered before.” And, they have a choice over whether there’ll be a single, a three-member, a five-member, or a 15-member, and on occasion —
Erwin Chemerinsky: Who decides that?
Katerina Linos: The president of the Court. So the president of the Court decides that, and also decides who the reporting judge will be. So unlike Chief Justice Roberts, who would decide after the votes are counted, who would write the majority opinion, and in so doing decide on the scope, President Lenaerts at the beginning of the case says, “I’m going to assign this to Judge von Danwitz. And I know which way this will [00:18:00] go because he will be the reporting judge and he will have to come up with what the 15 judges all agreed on.”
So the president is very powerful and has these initial decisions over how many judges, what composition, and who will be the reporting judge.
Erwin Chemerinsky: Who chooses the president?
Katerina Linos: The judges choose the president. And we had a lot of questions about what makes President Lenaerts different from the previous president, President Skouris, and one thing that we can talk about publicly is that President Lenaerts is very media oriented and wants a lot of publicity for the Court.
So a court that had zero journalists for a while will now have video in their hearings starting in October. So that’s one role that this new — newish — he’s been on the Court for decades.
Erwin Chemerinsky: Mark, I’m fascinated by this being a court where there’s no dissents. It’s impossible to imagine the United States Supreme Court without dissents.[00:19:00]
How come, and how does it work?
Mark Pollack: So, this is a subject that my colleague, Jeff Dunoff, and I have done research on for years. In fact, the first time I went to the Court of Justice in 2017, it was to talk to judges about precisely this question. So the answer goes back actually to 1950-51 when the first court was created.
And at the time there were only six Member States of what was then the Coal and Steel Community of Europe. All of them were civil law systems in which there was no separate concurring or dissenting opinions. And so when the judges first met in 1952, they saw a treaty that said, and a statute that said, that they were to deliberate in secret, and they interpreted that as meaning, “We will not publicize how we voted,” and, “We [00:20:00] will never indicate our own positions,” and, “We will never issue separate concurring and dissenting opinions.” And that practice has held for 75 years during which time the Court has increased dramatically in size and in the scope of what it does.
So how does that work? Essentially, the judges have made a commitment to try and reach consensus decisions whenever possible. Now, “whenever possible” is the key phrase there because, of course, judges, especially faced with these particularly important questions, three, or five, or 15, or 27 judges are seldom going to agree. So what they do behind closed doors is try and find a position that as many of them as possible can agree upon. They can vote, although President Lenaerts told [00:21:00] us in his interview, “If we get to the point where we are voting, like the Supreme Court, we’ve failed.” They almost never vote. And they negotiate to try and reach a text that can get as much support as possible.
Now critics of the Court will tell you that often results in rulings that are vague or paper over differences or offer a lack of clarity to the national judges who hear these cases. So there have been calls throughout, the history of the Court for the Court to loosen up and to allow separate opinions.
But if you listen to our interview with President Lenaerts he is sort of violently opposed to that. When we interviewed him he sort of said, “This would be completely inimical to the spirit of Europe. You in the United States. Your Supreme Court, they vote, and [00:22:00] then the majority wins, the majority goes off to write its opinion, the judges in the minority go away to write their dissents. . .” And he paused, and he said, “This is not Europe. This is not how we do things.”
It is a remarkable system. I will just mention one other thing, which is that there is a sort of window into the Court that compensates for the lack of separate opinions. And that is that in important cases, there’s an official called the advocate general.
There are 11 advocates general and if a novel case comes before the Court, the advocate general will be assigned to the task of writing a preliminary opinion before the judges deliberate and rule that identifies the key issues in the judgment, and that proposes a solution. And so, those opinions tend to be a little bit more open.
They tend to be written in the common law style that we are used to, and they provide a little bit of a [00:23:00] window on to the legal issues. But you will never find out, the judges will never tell you, and we never asked, “How did you vote?” “What was said in the deliberations?”
Once the Court rules, all the judges are bound to it.
Erwin Chemerinsky: Can I ask a quick follow up question? Could you say a little bit more about the Advocate General? I’m trying to understand their role. It doesn’t sound at all like the Solicitor General in the United States who is an advocate for the United States. It’s not really like being a law clerk or a staff attorney.
Who are these individuals and what do they do?
Mark Pollack: I am so glad you asked that question. This was the first time that I ever got a chance to talk to Advocates General at the Court, and as Katerina knows, I was so eager to do so that I volunteered. I said, “I will do all the Advocates General.” And it was a revelation.
So, again, you’re absolutely right. It’s nothing like the Solicitor General. The Advocates General — again, there are 11 of them. They are [00:24:00] full members of the Court. They have the same status as the judges, but they have a very different job than the judges. Unlike the judges who are issuing the final decisions in chambers, but who really don’t have an individual voice of their own, the Advocate General is again — and you talk to the Advocate General and they’ll tell you, like, “When we go back home, we have to explain to everyone what our job is,” because people think, “Oh, you’re an advocate.” “You’re a judge, or you’re a solicitor general, or you’re a lawyer.”
It is a quasi-judicial role in which the individual Advocate General sits down with their clerks, looks at all the precedent, looks at all the case law, looks at all of the existing scholarship on the question, and issues an individual analysis and an individual recommendation to the Court.
And the Court can either follow that recommendation or not. About 85 [00:25:00] percent of the time, they mostly follow the Advocate General’s recommendation, but about 15 percent of the time, the judges in the chamber go their own way. And those cases are actually the most interesting, because when the Advocate General says one thing, and the judges in the Court say another thing, then you can really get a window into the legal issues and into how the Court ruling might have gone that you would not otherwise get in the absence of dissenting opinions.
Erwin Chemerinsky: Mark saidhow you talked to six Advocates General earlier. I mentioned you talked to ten judges. How did it come about that you did these interviews? Because it’s hard to imagine anyone could say, “I’m going to interview a third of the Supreme Court.”
The justices won’t talk to you.
Katerina Linos: We were so incredibly lucky. We got Borderlines interviews with the outgoing president of the International Court of Justice, who, Erwin, you’ve managed to have her come here at Berkeley for a semester, which is [00:26:00] fabulous; the outgoing president of the International Criminal Court.
So we wrote to the president, President Lenaerts, and said, “There was so little known about the individual judges of the Court. Here, we read the memoirs, we follow what Justice Alito and his wife do at their homes, and there’s almost nothing known about these individuals who’ve had amazing careers at the national level, and now are making these key decisions, and we just don’t know who they are. So, wouldn’t it be fun to interview as many as want to be interviewed and create a public archive?”
So we’ll be doing that. And we wrote to everyone. And we had no idea how many would say yes. With tremendous help from the Court staff, with tremendous help from our Berkeley team, Keith Hernandez, Toni Mendicino, we are hoping that once these episodes launch, we will do a follow-on trip, and we will go [00:27:00] and do more interviews, because it is amazing that we were able to get a lot of diversity in terms of geography, a lot of diversity in terms of gender, but basically we got so many affirmative responses and so many good interviews that we want to do more. And some of the judges are asking us, “When will this launch? Because actually, I don’t know much about the biography and the history and everything my colleague did in the national court of Greece before being promoted to the European Court of Justice. And I’d love to hear a little bit more about their biography and how they see things,” as so little is known about the Court judges.
Erwin Chemerinsky: So Mark, what are some of the things that you learned that were most surprising to you?
Mark Pollack: Well, I’ll say first a selfish one. And then I will say one that I think is more profound.
For me, I’m someone who is very interested in judicial procedures and judicial practices. And [00:28:00] so talking to judges on this court and to the Advocates General, it was really illuminating to get a picture of how they do their work, how the judges are appointed to the Court, which is its own story, about the role of languages and multilingualism, how the judges conduct their oral hearings. Again, how they try to reach consensus in the absence of dissent. And Katerina asked the vice president of the Court about how he deals with issues of interim and provisional measures. For most people, those things are inside baseball, but, you know, I think for students of law and courts, they’re fascinating and in many cases, they can be consequential as well.
The more profound thing that I got is probably something that I could have gotten from reading the excellent casebooks, Craig and de Búrca on European Union law, but that really came out vividly in conversation with the judges. And [00:29:00] that has to do with just how much the subject matter jurisprudence of the Court has changed and expanded in really just the last decade or maybe two. For those of us who maybe studied European law back in the day, we tend to think about it mostly as economic law, antitrust policy, free movement of goods, services, labor and capital.
Over the past 30 years, the EU treaties, as Katerina was just saying, the EU treaties have evolved, most notably in that they now include a justiciable and enforceable Charter of Fundamental Rights. And EU legislation now covers just about every issue area that you can imagine, meaning that the Court of Justice is now ruling on all of those issues.
And so, in our discussions with the judges and Advocates General, yeah, we talked about competition law and economic law cases. But we also talked about data privacy. We talked about the rights of asylum seekers, which are now [00:30:00] guaranteed under European Union law. We talked about criminal law and criminal procedure, which did not used to be part of European law, but now increasingly is because of Europol and the European Public Prosecutor’s Office.
We talked about the rule of law and judicial independence in the Member States. And one of the Advocates General that I interviewed, Advocate General Richard de la Tour, said we have essentially become a human rights court here, because even if a case is not a human rights case, it will often reference one or another article from the Charter of Fundamental Rights.
Again, as an old school student of European law I tend to think of, you have the human rights issues at the European Court of Human Rights, and you have the economic law issues at the Court of Justice. Talking to the judges, you realize vividly the extent to which that is no longer the [00:31:00] case.
The European Court of Justice is now essentially what you might call a court of general jurisdiction. And it is ruling on just about everything you could imagine.
Erwin Chemerinsky: And, of course, those who listen to the Borderlines podcast series can hear all these interviews and can learn about this. It just seems such a unique insight into a court.
If I could ask you the same question, Katerina, what were the things that you learned that most surprised you?
Katerina Linos: So, to me it was fascinating how many times, on air, one of the judges says, “Hey, you’re asking the wrong question.” So we’d worked on the questions with their clerks, we’d give them drafts, and we said, “Okay, so tell us about the holding of this important case.”
And the judge says, “You know, the holding is really important, but have you paid attention to the dicta?” Or, “You’re paying attention to the Hungarian case, but look at this case with Portuguese judges where they’re asking this narrow question about salaries, and we have all this dicta on what it means to be an independent judge.”
Or, like, “Three questions [00:32:00] came to us, and the holding on the one we deemed admissible is really important, but look at the two we nudged.” Or, on air, “I ended up going in support of Greece rather than Denmark, but actually this is another process of how I arrived. I would have come to a totally different conclusion when I first got the materials, and let me talk you through how I reached that holding.”
So to me, the cases of the Court of Justice are not fun reading because they are consensus decisions. So a way you to reach consensus is just to delete the controversial paragraphs. And, I found them difficult to use as teaching materials. I instead go with the Advocate General opinions. But even so, with a court that has a huge volume, you end up missing important cases, you don’t have nice and clear answers, and you don’t have someone who really knew the material inside and out saying, “You know, the holding is interesting, but the standing issue, the dicta, the alternative, is so rich.”
So hearing this over and over is, I think, what makes these interviews so worthwhile. [00:33:00]
Erwin Chemerinsky: If I could shift from that to talk a little bit about specific areas. For example, there are big problems in the European Union, especially with regard to Hungary. Hungary is an authoritarian government that undermines the rule of law domestically and common European foreign policy measures, such as aid to Ukraine.
You’ve already mentioned Hungary. Can the Court of Justice make a difference in such a challenging set of circumstances? Mark?
Mark Pollack: So the Court of Justice and the European legal order in general are guided by the principle of conferral, which is means that the EU and its institutions can only exercise those powers that have been conferred upon them.
And so there is actually less than one might imagine that EU institutions, and in particular the Court of Justice, can do faced with issues like the [00:34:00] abuse of judicial independence, formerly in Poland, still in Hungary. And of course, the judges will tell you, I think every single judge told us, “We don’t pick our cases. We have to wait for the cases to arrive to us.”
There have been a number of cases about what you might call the creeping authoritarianism in Hungary and in Poland. Some of them have come from the domestic courts. So, for example, there are a number of cases about the Polish judiciary that came not from the Commission bringing infringement proceedings, but actually came from the judges bringing a case within their Polish judicial system. And then, Polish national courts submitted the question up to the Court of Justice. The Court of Justice rules in those sorts of cases. It rules in a handful of other [00:35:00] cases where, for example, the Commission has withheld funding from Hungary. And in those cases, it can make a difference. For example, the Polish government even before the recent elections that brought Donald Tusk’s government into power, the Polish government, to some extent, backed down on some of its practices.
So, there are things that the Court can do but it all has to do with what’s there in the treaties. The judicial independence questions have come to the Court because there’s an Article 19 in the Treaty on European Union about judicial independence. But if there’s no hook for the Court to come to then what the Court can do is quite limited. Katerina, I don’t know if you agree with all that.
Katerina Linos: I take a slightly different view.
I think the Court finds hooks and people can use EU law in fascinating ways. I think in Hungary’s case in particular. So [00:36:00] Poland, as Mark said, has had a U-turn. In Hungary’s case, in particular, the judges found an article that others would say speaks to broad aspirational values, and they created jurisprudence out of that article and put some penalties to the order of 200 million and then a daily one million, and then the Commission came in and withheld 10 billion, and the Parliament is suing the Commission for not withholding more, so the Hungarian government is paying attention.
We’re very, very lucky in that the Miller Postdoctoral Fellow this year Janka Deli, is Hungarian and works on this exact question. She says there are lots more levers. Joining the European Union for Hungary in particular, but for any other Member States, means two percent GDP growth every year that you wouldn’t otherwise have.
You can threaten to change all kinds of rules on financing, and to the extent anyone can stand up to Viktor Orbán, who is using the judiciary very effectively, who is quite [00:37:00] popular, it is the European Union. He’s closed down some migration detention centers that the Court of Justice said were illegal.
He has faced a lot of pushback on his core campaign issue, which is migration. There’s some other key issues there. So I think I have some optimism that even though it’s a very, very difficult problem, it’s a different problem because Hungary is a member of the European Union and there’s just so much leverage in ways we don’t have over authoritarian regimes like Turkey that are not members.
Erwin Chemerinsky: I see that we’re coming near to the end of our time. But I want to take it back to the United States, and I’ll ask this question in a very blunt way. Why should people in the United States care about this Court? How do the rulings of this Court affect the American legal system?
Katerina Linos: So I’ll start by talking about how it affects American citizens and American companies.
The American companies that are most concerned with the [00:38:00] European regulators are the tech giants, because the Europeans regulate them quite aggressively. They enforce these laws aggressively, so Microsoft and Apple and Meta, they are all facing and fighting. European regulators. Elon Musk is tweeting this morning about whether he should ever travel to Europe. “Is he safe there?”
So it is very clear that between the AI Act, which has gotten a lot of publicity, but the more substantive Digital Services and Digital Markets Act, and of course the GDPR, the view of the Europeans that anything that affects European consumers, can be regulated by the Europeans, and the choices that these companies make to provide a single iPhone that will now, apparently, no longer require purchases through the App Store, no longer force us not to be able to delete default apps. All of [00:39:00] that sector is regulated by Europe.
But the Europeans like to regulate in other areas. So, for example, they have very strict climate change rules, and they’re trying to export these rules in part through decisions about airlines that end up using European airports, in part through a common tax they’re proposing on the cement sector, so stuff that is made not in accordance with European regulations, but it’s sold in Europe.
And because of this preference for strict rules, and because of the fact that it’s a very large, unified market, they’re able to regulate broadly, as my co-author and colleague Anu Bradford has written on.
Erwin Chemerinsky: Mark, your thoughts?
Mark Pollack: So, I would say I agree with everything that Katerina just said. But I feel strongly about this question because I teach the European Union and EU [00:40:00] law to my students, and so I pose this question on the first day of class, and I invoke Ferris Bueller. If you remember, Ferris, during his day off, misses his test on European socialism, and he looks out into the camera, and he says, “I mean, really, what’s the point? I’m not European. I’m not planning on being European. So who cares if they’re socialists?”
So for me, there’s at least four reasons why Americans, and especially American law students and scholars and practitioners, should care about the Court of Justice and about EU law.
The first one for me is the European Union has a population, even after Brexit, of 448 million people. So if we think of the EU as a single legal order, which it de facto is, it’s the third largest such order in the world, and CJEU judgments affect all of those people, even if we’re not among them.
I’d say the second reason is that the Court of Justice and the European legal order is a totally fascinating, and thus far really successful, experiment in establishing a [00:41:00] constitutional legal order above and yet also intertwined with the courts and the legal orders of the 27 Member States. So, so following that experiment, its twists and its turns and its triumphs and tensions, is intellectually interesting even if you don’t live in Europe.
Third, the Court of Justice is a common constitutional court of a block of 27 democratic countries. And as such, it encounters many of the same issues: data privacy and food safety, and virtually everything you can imagine that U.S. federal courts deal with. And so comparing how the two courts have dealt with these issues, I think, is a fascinating case of comparative law.
And then finally, as Katerina has said really well, Europeans do indeed like to regulate. Some of those regulations, like competition policy, apply extraterritorially, and even the ones that don’t are relevant for U.S. firms wanting to access the European market. This is indeed what Anu [00:42:00] Bradford has called “The Brussels Effect,” where the EU makes rules that often become de facto global rules. And this actually came up spontaneously in one of the interviews that I was doing with Advocate General Leila Medina when we were in Luxembourg. She mentioned the Brussels effect. But she also said, You know, really it’s the Court that interprets EU law. So it’s the Court that says what EU law means. And thus what U.S. firms have to do in order to do business in one of the world’s largest markets. So when the Court interprets EU tax law, it affects Apple. When it interprets EU competition law, it affects Boeing and GE. When it interprets EU data protection law, it affects just about anyone wanting to transfer data in and out of Europe. So this CJEU exerts what one might call “the Luxembourg effect,” across the rest of the world.
So, for me, you can tell I feel strongly there are lots of reasons both intellectual and [00:43:00] self-interested to care about the Court of Justice and the EU legal order.
Erwin Chemerinsky: Each of you explains so clearly why this Court matters and why it should be taught about in United States law schools. You’ve done such a great job of explaining the Court, and I know your Borderlines podcast series features these interviews and people can learn much more. Alas, I think we’re out of time now.
So I’m Erwin Chemerinsky, Dean of Berkeley Law, and I’m very grateful to Katerina Linos, my colleague at Berkeley Law, and Mark Pollack, from Temple University, for this conversation. Thank you so much.
Katerina Linos: Thank you so much, Erwin. This was fascinating.