“The primary address for citizens and undertakings for obtaining legal protection is the national judge”
President Lenaerts, you hold a law degree from the Katholieke Universiteit Leuven (Catholic University of Leuven, Belgium), which has always been renowned for its excellence in teaching EU law. At the time when you were a student there, what struck you most about EU law?
Lenaerts: Before I answer your question, I would like to say that I feel extremely honoured to receive the doctor honoris causa from the venerable and prestigious Eötvös Loránd University, it really means a lot to me!Now, as to your question, when I studied law at the Katholieke Universiteit Leuven in the mid-1970s, EU law was still the law of the three European Communities and primarily focused on the common market and the fundamental freedoms, i.e. the free movement of goods, services, workers and capital. It was more or less as old as myself, and thus quite young. It was therefore not yet part of the obligatory curriculum, but an optional subject.
However, the case law of the Court of Justice of the early 1960s, namely the van Gend en Loos judgment of 1963 on the direct effect of Community law and the Costa judgment of 1964 on its primacy gave an idea of the potential of this new legal order to shape the law in Europe. The first enlargement of the Communities through the accession of Denmark, Ireland and the United Kingdom in 1973 confirmed that potential. So even though the law of the Communities was, in general, considered to be a niche subject, it triggered my interest from a comparative constitutional law perspective (especially comparative leaps to US constitutional law). And then I was lucky
to find professors at the Katholieke Universiteit Leuven who knew how to encourage this interest.
You have been working at the Court of Justice of the European Union for almost 40 years. From 1984 to 1985, you worked as a legal secretary to the then Belgian judge René Joliet. You were appointed yourself judge at the Court of First Instance at the time of its creation in 1989, where you worked until you were appointed judge at the Court of Justice in 2003. Since 2015, you are the president of the Court of Justice. Looking back, what do you see as the main changes in the functioning of the CJEU over the last decades?
When I joined the Court of Justice as legal secretary in 1984, the European Communities comprised ten Member States with in total six official languages. Today, there are 27 Member States with in total 24 official languages.Further, as from the Single European Act of 1986 and with the Treaties of Maastricht (1992), Amsterdam (1997), Nice (2001) and Lisbon (2007), the Member States conferred more and more competences to the European Union as a common governance level. Nowadays, there is EU legislation in almost every field of law and regarding all aspects of our daily life, such as consumer protection, the protection of the environment, the free movement of EU citizens and a common asylum system, to name only a few. Finally, yet importantly,
in 2009, the Charter of the fundamental rights of the European Union became part of primary EU law.
Even though the Court of Justice had at that point in time already established a considerable body of case law on fundamental rights, the Charter enhanced that development.
Given these changes, the caseload has increased from a few hundred in 1984 to more than 1700 last year. They also led to a significant increase of the number of judges (one per Member State, i.e. 27) and Advocates General (now 11) at the Court of Justice, to the creation of the General Court in 1989 as court of first instance with today 54 judges (two per Member State) and to a significant increase of staff (almost 2300 at the end of last year). Both at the Court of Justice and at the General Court, a Grand chamber (15 judges) was set up in order to determine the most important cases, the large majority of the cases being determined by chambers of three or of five judges. Whilst the Court of Justice can still, in cases of exceptional importance, sit in Full Court, that possibility does not exist at the General Court.
The last decades in particular have shown that
the preliminary ruling procedure is a real success story.
It enables national courts dealing with cases whose outcome hinges on a point of EU law, to refer questions on the interpretation or the control of the validity of that law to the Court of Justice of the European Union. This procedure reflects a trustful cooperation between national judges in their capacity of judges of EU law and the Court of Justice of the European Union acting –in accordance with the Treaties-- as the common judicial body ensuring the uniform interpretation, application and enforcement of EU law. We receive around 20 such references from Hungarian courts every year.
Since the 1980s, the Court of Justice of the European Union has undergone a number of reforms. While the Civil Service Tribunal has not proved to be a lasting solution, the increase in the number of judges of the General Court seems to be a clear success. Most recently, a clearly identifiable group of preliminary ruling cases, in particular VAT, customs and passengers’ rights cases, have been transferred to the General Court. What are your first experiences with this allocation of cases?
We are still at a rather early stage of this new allocation of jurisdiction, which entered into force on 1 October 2024. It is important to note that for reasons of legal certainty and expedition, all references for preliminary rulings continue to be submitted to the Court of Justice, which carries out an initial analysis of their subject matter: references which fall exclusively within one of the specific areas for which the General Court has now jurisdiction, and which do not raise an independent question of EU law, will be transferred to it.
During the last three months of 2024, a total of 19 references for a preliminary ruling from 12 different Member States were transferred to the General Court. Almost as many have been transferred since the beginning of this year, two of which come from Hungarian courts. Due to the short time lapse, the General Court could not yet decide on any of these references. However, it completed already four cases in which the reference was withdrawn. The new allocation of jurisdiction works smoothly in practice and I am convinced that it will guarantee decisions of high quality within a reasonable time.
According to the 2024 annual report, the number of new cases brought before the Court of Justice was extremely high (920). At the same time, it is quite visible that, for reasons of efficiency, despite the high number of cases the Court of Justice is careful to ensure that the length of procedures – especially in preliminary ruling procedures - does not increase. Are there any new ideas on the table to optimise case management in view of the increased caseload?
It is true that the number of new cases brought before the Court of Justice increased significantly last year, from 821 in 2023 to, as you said, 920 in 2024. However, during the same year, the Court of Justice managed to complete significantly more cases than the year before (863 instead of 783). The average time taken to deal with references for a preliminary ruling rose slightly from 16.8 months in 2023 to 17.2 months in 2024. Therefore, the overall performance is satisfactory.
That being said, the Court of Justice of the European Union always strives for reducing the average time to deal with a case while maintaining a high quality standard of its decisions. The increase of the caseload is not the only factor that can cause an increase of that average time. In fact, the last years have shown that more and more of the new cases are of a complex and/or delicate nature and thus require more time.
However, the transfer of part of the jurisdiction to give preliminary rulings to the General Court has yet to show its full effect during this and the coming years. It is to be expected that it will bring about a significant reduction of the workload of the Court of Justice. Therefore, while there are several ideas on ways to further speed up proceedings, it is too early to put concrete proposals on the table.
In your academic work and as a judge, you have advocated effective legal protection for individuals at European level. How do you see this issue today, are there still gaps that should be addressed by the EU institutions or the Treaties, because the case law of the Court of Justice alone cannot fill them?
Lenaerts: Inspired by the Jégo-Quéré judgment of the General Court (at the time still called Court of First Instance) of 2002, the Member States extended considerably the legal protection against EU acts of general application, by providing in the Lisbon Treaty that any natural or legal person may institute proceedings against a regulatory act of the EU which is of direct concern to them and does not entail implementing measures. Thus, there is no need to show individual concern in such a case. As the Court of Justice has specified, the concept of ‘regulatory act’ extends to all non-legislative acts of general application. The objective of that extension is to ensure that individuals do not have to break the law in order to have access to a court.
According to settled case law, the FEU Treaty has established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the EU institutions, and has entrusted such review to the Court of Justice of the European Union. The Court of Justice is constantly engaged in fine-tuning this system.
However, as you know, there are ongoing discussions and diverging judgments both on international and on national level as to whether individuals should be able to bring an action against a State or an undertaking in order to force the latter to fight climate change. These discussions might affect the question of legal protection at EU level.
As regards EU law in general, I would like to recall at this point that the primary address for citizens and undertakings for obtaining legal protection is the national judge who applies EU law day in and day out and may (or must, when ruling in last instance), where he or she is in doubt as to its correct interpretation or validity, refer a question to the Court of Justice of the European Union.
Finally, on a more personal note, looking back on your work as an EU judge, which is the most memorable case for you?
This question is difficult to answer, as the Court of Justice of the European Union has issued so many important decisions.
If I may mention at least three decisions (or in fact four), I would think of, in chronological order, the judgment Les Verts of 1986, for which judge René Joliet, for whom I worked as legal secretary, was the reporting judge. The Court of Justice ruled in that judgment, in terms of today, that the European Union is a Union based on the rule of law, “inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty”.
Second, I would mention the “cement judgment” of the General Court (at the time still called Court of First Instance) of the year 2000 where I was the reporting judge. It is a judgment in 41 joined cases regarding a cement cartel. With almost 1200 pages in the European Law Reports, it is the longest judgment ever of the Court of Justice of the European Union (which comprises both the Court of Justice as such and the General Court).
Third, I think of the two “conditionality” judgments of 2022, in which the Court of Justice, sitting as Full Court, pointed out that the European Union is founded on values such as the rule of law which are common to the Member States and which define the very identity of the European Union as a common legal order.