Interviewing EU Judges

Who are the women and men behind the CJEU’s decisions? The Court of Justice of the European Union (CJEU) is an incredibly powerful institution, yet little is known about the backgrounds, judicial philosophies, and ambitions of its judges and advocates general. The Union’s “Help Desk,” as CJEU President Koen Lenaerts modestly describes the Court, is now interpreting broad-ranging primary and secondary rules on topics ranging from trade and technology to finance and migration, while also giving specific legal meaning (and large penalties) to states violating ambitious and ambiguous community values such as the rule of law.

Brief biographies on the Curia website indicate that the judges and advocates general on the CJEU are leading legal lights from each of the Member States, often having presided over top national courts or shone in legal practice and academia before rising to the CJEU. Often, their roles in their home countries are widely covered in the national press, until their moment of elevation to the Luxembourg court. Then, there is silence about them. There is essentially no CJEU press corps – instead, journalists in Brussels or in national capitals rely on Court communiqués for developments in the Court’s jurisprudence. Furthermore, the CJEU’s practice of issuing consensus opinions, with no space for concurrences or dissents, further obscures the individual men and women behind these landmark judgments.

This is where the Borderlines archive comes in, a joint effort with the Court of Justice and the Borderlines Podcast at Berkeley Law, led by Berkeley Professor Katerina Linos and Temple Professor Mark Pollack and produced by Toni Mendicino. Put simply, we set out, with the cooperation of the Court, to interview a broad cross-section of the judges and advocates general of the Court of Justice, to learn about their professional backgrounds, their varied paths to and experiences on the Court, their jurisprudential philosophies, and their understanding of the Court’s case law and its role in the EU legal order. Our first iteration, undertaken during a visit to the Court’s seat in Luxembourg in the summer of 2024, includes sixteen interviews, including ten of twenty-seven judges and six of eleven advocates general. Despite our initial concerns, we found that our initial group of sixteen members was broadly representative of the Court, including western and eastern Member States, a variety of professional backgrounds, and both men and women.

In methodological terms, all our interviews were on-the-record, and all were recorded for release as part of the Borderlines podcast and later preserved on a dedicated website as an oral record of the judges’ and advocates general’s views and experiences. It is important to note at the outset that judges of the Court of Justice are sworn to secrecy about the contents of deliberations, and we have never experienced any judge who, speaking on or off the record, violated that oath by revealing about what was said in deliberation or even about how their personal views might have differed from those of the majority. Advocates general, by contrast, do not participate in such deliberations but rather formulate their opinions alone (or with their clerks, known in the Court as référendaires), so they are able to discuss their own personal views of cases more openly than the judges. In both cases, however, we found that members of the Court were surprisingly frank, and often quite personal, in their statements of their judicial philosophies and in their interpretations of their own rulings, their relations with national courts who submit a majority of references to the Court, and recent developments and challenges in EU law.

At this point, the reader may rightly ask what judicial interviews can add to our understanding of the CJEU. Why is the output of the Court, in its numerous and lengthy written opinions, and the extensive commentaries on blogs, casebooks, briefs, and articles, not enough? As we prepared for our interviews, we regularly consulted Paul Craig and Gráinne de Búrca’s superb EU law casebook. Furthermore, one of our interview subjects, outgoing Judge Lucia Rossi, even argued to us that, “You know the Court through its judgments.” Nevertheless, the 1,300 pages of the Craig and de Búrca volume might be overwhelming to a newcomer to EU law from domestic or public international law, not to mention the fire-hose of over 800 judgments per year coming out of the Court of Justice.

In that context, we believe that our interviews with members of the Court serve first of all as an entrée into a world that is otherwise impenetrable for non-experts. President Lenearts, for example, leads off the series with a master class in the structure and workings of the Court, together with a vigorous defense of the Court against some of its critics. Others, like outgoing Vice President Lars Bay Larsen, offer trenchant analyses of the tensions between the CJEU and national courts in recent years, while incoming Vice President Thomas von Danwitz analyzes the stream of data-privacy cases on which he has frequently served as reporting judge.

This leads us to a second set of lessons from judicial interviews, namely the judges’ and advocates general’s own explications and understandings of the Court’s most significant recent decisions. In his interview, for example, Advocate General Anthony Collins analyzes his Opinion, and the Court’s subsequent judgment, in the Commission v. Poland (IV) case concerning the independence of the Polish judiciary under the previous Law & Justice government, identifying the reasons why he and the Court found some of the Commission’s claims inadmissible while strongly supporting others. Other members, including Vice President Bay Larsen and Advocate General Jean Richard de La Tour, spoke movingly about the difficult effort to elaborate sometimes ambiguous legislative criteria for asylum under EU law, and the real-world implications of those criteria for asylum seekers who might find themselves on one or the other side of the EU’s protection. For us, these in-depth explorations of dozens of individual cases served to illuminate many of the Court’s most consequential judgments.

Third, while steering clear of the Court’s secret deliberations, our interviews collectively provide a vivid picture of how the contemporary Court works. This process encompasses everything from the arrival of a case in the registry, through the preliminary report of the reporting judge, the opinion of the advocate general, and the public hearings of the Court – many of which are being streamed to the public for the first time in the Court’s history on the Curia website – up to the final judgments. In many of our interviews, for example, we asked about the Court’s practice of issuing judgments attributable to the entire Court, with neither open votes nor separate opinions, and the judges we interviewed provided a range of views on this practice: President Lenaerts and others strongly defended the virtues of requiring the judges to deliberate together and draft a common opinion from potentially diverse views, while Judge Ineta Ziemele (who had previously served on and regularly dissented within both the Latvian Constitutional Court and the European Court of Human Rights) admitted to missing the ability to speak individually in response to issues before the Court. Advocates general, by contrast, sometimes lamented their exclusion from the collective deliberations of chamber judges, while celebrating their ability to speak and write in their own voices and explore legal issues that are often elided in the Court’s terse final judgments. In yet another area of judicial procedure, Vice President Bay Larsen discussed the difficulties of deciding on the nature and size of interim measures in the EU – including his famous call for Poland to pay €200 million plus €1 million per day for noncompliance with a CJEU rule of law judgment – given the scant case law in this area. To some readers these details might seem like “inside baseball” (a term with which our European interlocutors seemed inexplicably unfamiliar), yet they are central to anyone who seeks to understand the workings of the Court.

Fourth and finally, talking to the judges and advocates general illuminates both the continuity and change in the nature and the substance of EU law and jurisprudence. Toward the end of each interview, we asked each member about the changes over time in the Court’s case law, from the constitutional cases of the 1960s and 1970s to the internal market cases of the 1980s and 1990s to the more diverse subject-matter jurisprudence of the present day. Many of the judges challenged the premise of the question, noting that constitutional issues remain very much before the Court, while internal market cases continue to constitute the bread-and-butter of the General Court. Yet the overwhelming response from all the judges was that, indeed, the dramatic diversification of EU primary law (the Treaties and especially the European Charter of Fundamental Rights) and secondary law (including recent directives and regulations on migration, data privacy, digital markets and artificial intelligence) meant that the Court is now challenged to rule on a bewildering diversity of substantive issues.

Walking through the streets of Luxembourg after a day of interviewing, we recalled the old joke about the two economists walking down the street: when one points to a €20 bill lying in the street, the other replies that the bill cannot really be there, because someone would have picked it up already. We don’t know why we got the privilege of creating this archive and why neither we nor others had created it much sooner, but hope you enjoy listening to these interviews as much as we did producing them.

The Borderlines CJEU Interviews series was launched on 1 November 2024, with the release of an introductory conversation with Berkeley Law School Dean Erwin Chemerinsky, and the first two interviews with CJEU President Koen Lenaerts and Vice President Thomas von Danwitz. Subsequent interviews will be released weekly in the Borderlines podcast feed and on the dedicated web page for the series.