The president of the Court of Justice of the European Union (TJUE), Koen Lenerts (Mortsel, Belgium, 70 years old), has visited Barcelona a few days after Luxembourg magistrates study the resources of the Spanish courts against Amnesty's law. For this reason, avoid ruling on the star standard of the legislature, although, beyond specific cases, it does discard a systemic risk for the rule of law or judicial independence in Spain.
The interview is conducted in the Autonomous University of Barcelona (UAB), where this Friday Lenaerts has been invested doctor honor in a public recognition to its commitment to the foundational values of the EU. The magistrate reviews the key differences between the American and European justice systems and defends the shield of the TJUE to political or economic pressures.
In its more than 20 years in the TJUE, the last ten as president, the TJUE has increasingly assumed matters under its jurisdiction. What do you think has been the most relevant change?
The most relevant change is that the Union now operates as a huge space without internal border control between the Member States. That implies that migration, asylum or police and judicial cooperation are central legal matters because the states have transferred to the EU competencies in legislation on them, in addition to other issues such as non -discrimination and protection of ethnic, religious minorities or for their sexual orientation.
In a large open space such as the EU, fundamental rights must be protected. Economic issues, which were the protagonists of the EU's beginning, already share prominence with fundamental rights. Of course we continue to deal with issues derived from the single market, but also of the protection of consumers, workers and the environment or the privacy on the Internet.
Are the foundational values of EU peace and solidarity at risk by the world warmongering context, which also affects the continent with the invasion of Ukraine?
Worldwide I would say yes, but within the European Union, although it may seem strange, awareness of these values has increased. People are more aware of the importance of the EU, as a co -government structure of 27 Member States, to safeguard and consolidate peace and solidarity between them. Or we swim or sink, but together. In the current geopolitical context, the feeling of the added value of the Union for Peace and Solidarity has been reinforced.
How does cooperation with the national courts in matters where national and European law interact?
It works extremely well because it is the master key of the European judicial system. Any court, either an ordinary or the Supreme Court, from any EU country can raise your doubts or questions about the application or interpretation of the European law, as it happens in countries such as Spain or Italy with the questions that its ordinary courts can lead to their National Constitutional Court.
The TJUE has the last word when establishing the interpretive criteria of the norm on which it is asked with the objective of ensuring that the provisions of the European Union are common not only in books or official newsletters, but also in practice when interpreted, applied and enforced by national judges.
No other power or court can limit the right of judges to go to the tjue
More specifically, how is the cooperation and relationship of the TJUE with the Supreme Court and the Spanish Constitutional?
The Constitutional Court has only raised a preliminary ruling, which is normal for the type of issues that it sets out. Constitutional courts are mainly dealing with their national constitution and interactions with the right of the Union are less frequent. The main partners of the TJUE in prejudicial matters have been the ordinary courts, and in Barcelona they have recent examples of commercial and contentious courts in cases of citizenship or mortgages, although lately the Supreme Court raises many more prejudicial issues, something that is positive, and I say it openly. All courts of any instance have full right to raise prejudicial issues on European law to the TJUE, and no other power or a superior court can limit it, because it is totally contrary to the EU legal system.
However, in the case of interim of the Spanish public sector, it seems that the interpretation of the Supreme on whether they have to be fixed, it is not exactly the same as that of the TJUE. It is an open case for years. How do these divergences face?
I cannot comment on anything of this matter because the case of the interim is aware of a sentence of the Great Chamber of the Tjue that presides, whose view was held a few days ago and whose sentence I think we can issue this fall. But the initiative of the preliminary ruling that we are going to answer was in charge of the Supreme Court, to which to have the initiative to raise it. The dialogue between courts is always helpful.
In the past with Brexit, but today with leaders such as Víktor Orbanfrom politics the primacy of the right of union is called into question. Are you worried about these types of statements?
The answer is that not because among the professionals of the law the system works very well. I do not comment on politicians from any of the 27 Member States, but the judges of first instance and Hungary Courts continue to maintain their full right to go to the TJUE. And no one can prevent it. This is the important thing and what does not change.
Hungarian judges faithfully apply the TJUE sentences before a possible contradictory national legislation, although from the supreme of their country or political instances they are tried to press. They maintain their independence and this is reflected in the statistics of the TJUE, where it is found that Hungary is one of the countries that sends the most prejudicial issues. This is a sign that the judicial system works (alive and kickingin the original expression of Lenerts in English) despite political pronouncements that, on some occasions, are made for the gallery.
In a world where courts are increasing The US Supreme, where that polarization ends up moving And can you intuit what each judge will decide depending on their nomination?
One of my academic investigation fields is the comparison between US and European courts, including the Supreme and Tjue. In Europe we are protected thanks to the genius adopted by the Member States, the Guardians of the Treaties, 70 years ago: unlike the US Supreme, in the TJUE they do not allow discrepant particular votes, the decisions are adopted in a collegiate and secret manner of deliberations. We have to pronounce a single valid sentence in all Member States, which entails that, as judges, we will deliberate differently.
In the US Supreme, in the end, deliberation is a matter of counting (in favor or against the matter in question), which, as you said in your question, allows enough to anticipate who will vote what. This risk does not exist in the TJUE because our functioning is totally different: we discuss the very thorough case between us, we exchanged arguments and listen to each other. We try to make a synthesis of the debate and we rarely vote. The only similar system is the one that operates in the Belgian Constitutional Court, which must be integrated in parity between valuable and flamenco magistrates, making decisions by consensus and does not allow discrepant particular votes.
It is not enough just to know the law outside reality, this is a danger
Does this operation system make them more safe from political or business pressures?
Exactly! We are fully armored from business pressures, governments or any other type. It is not that we live isolated from the world. We know what happens in society, which is something totally necessary to make legal decisions. It is not enough just to know the law outside reality, this is a danger. But we have no pressures because Member States do not have their own judge and there is no nationality requirement to be part of a TJUE room. The only reason why there is a judge of each Member State in the TJUE is to achieve an integration and common interpretation in national legal systems, but not to act as their country wants.
It is important to emphasize it: the TJUE is not an international or supranational court, it is a common court of the 27 Member States. The TJUE is part of the Spanish judicial system, of the Belgian judicial system, of the Danish judicial system…. And so I could continue with the other 24 Member States.
Does this imply that judicial independence is not at risk in Europe despite the international context?
Absolutely! Not only are they not at risk, but the system would allow us to protect them if any of the member states needed it. Here the TJUE would only intervene at the request of the European Commission or a National Court in the event that certain red lines were crossed and there was a systemic deficiency of the independence of a court in a Member State that meant a challenge for the TJUE and the rest of the Courts of the Member States. But this would be an exceptional and extreme case. The objective of the TJUE is not to supplant the National Supreme or Constitutional Courts, whose first objective is to protect the rule of law in their respective countries, which they normally do very well.
Specifically in Spain, are the rule of law and judicial independence in danger?
In general, I have no indications of it. He already knows that I cannot pronounce on concrete cases that are in the TJUE, but there is none that questions, in general, the fulfillment of the rule of law in the Spanish judicial system.
I suppose that, as with the issue of the interim, he will not be able to answer, but I have to ask about Amnesty's law to the independence process of Catalonia, which has also reached the TJUE. Are you surprised that the TJUE is subject to national political debate in Spain for this matter?
As you say, I can't say anything about this specific case because it is pending. What I can say is that the case has been taken to the TJUE by the Spanish courts. I want to emphasize this aspect, even if it is in the public domain. Whatever the decision, the fact that a case is taken before the TJUE by the National Courts illustrates what I have been saying about the operation of the system: when the European Commission or a National Court believes that there could be, it would not say a risk, but a specific legal problem in a Member State, they take it before the TJUE. And this is our work in the coming months.
