Interview with Professor Malenovský, Judge of the Court of Justice of the European Union: Brexit is a dangerous precedent for the EU (2017 Interview)

Jan Lhotský

Jiří Malenovský is one of the most eminent Czech experts on European and International Law. He is a professor at the Faculty of Law at the Masaryk University, a former judge of the Constitutional Court of the Czech Republic and a sitting judge on the Court of Justice of the EU.

The interview was published in February 2017, in Czech, now we also present it in English.

In addition, Professor Malenovský regularly publishes articles. In January 2017, his article was published in the journal, "The Lawyer". He reserved time for an interview with the Czech Center a few days before Christmas, when he arrived in the Czech Republic coming from Luxembourg. During the lunch interview, Professor Malenovský was willing to answer both professional and personal questions.


From Brno to Luxembourg

Dear Professor, thank you for finding the time during the Christmas holidays. When we look at your career, we see work in the academic sphere, at the Ministry of Foreign Affairs of the Czech Republic, and also the role of a judge on the Constitutional Court and the Court of Justice of the EU. What was your personal vision when you finished your Law studies and searched for your first job?

I would say it was a targeted choice. As a seventeen-year-old, I had an exceptional opportunity just before the Spring of 1968. During this time, I studied at Dijon Lyceum and learned French at a level that far exceeded the then standard knowledge of a foreign language in Czechoslovakia. When I went to law school, I hoped to use the added value of French after graduating.

I was looking for something with an international overlap and such an opportunity was available at the Faculty of Law at Masaryk University in the field of Public International Law. Helping to grant this opportunity was the fact that I was part of the first year of graduates from the Faculty of Law of Masaryk University in 1974, after the restoration of its activity. As a result, there were vacant positions for assistants at the faculty, of which I took advantage.

You are known as an expert in the field of Public International Law, but cases concerning this field of law are not very often brought before the Court of Justice of the EU. Do you miss such cases?

It is not that such cases would not appear before the Court because the Court has, among other things, a function of the EU Constitutional Court and one of its competencies is to assess the conformity of the proposed treaties between the EU and other entities with EU primary law. An activity like this appears before the Constitutional Courts before entering into an international treaty. Within this assessment, the Court receives several such submissions each year.

The second typical situation is a conflict of jurisdiction between the Commission and the Council, which happens very often. The conflict of jurisdiction is whether the EU, represented by the Commission, has the exclusive competence or a shared competence with the Member States in cases when the EU is ratifying a treaty. The Council has traditionally defended the view that it is a shared competence, and the Commission considers that competence as exclusive. Personally, I address such cases quite often, but it is not a regular occurrence.

So what types of cases do you typically deal with as a judge?

As a matter of fact, I have become a specialist in several areas, mostly in the field of copyright, where as a judge rapporteur I receive most of the key cases concerning the rights of air passengers or tax matters (indirect taxes, VAT). In summary, it is a certain "mosaic" of topics in which the field of public international law is represented to a certain extent.

Do you consider a case differently when it comes from the Czech Republic?

I cannot receive a Czech case as a Judge-Rapporteur. However, the rules on the allocation of cases do not exclude the participation of a national judge.

For example, I have considered the preliminary question in the case of "Ryneš", which indirectly concerned human rights. A camera, which was located on the facade of the family house also monitored part of the public space. Therefore, the owner got into a conflict with the protection of the personal data of third parties. He placed the camera there to protect his property because someone had repeatedly tried to break into his residence. In this case, the Supreme Administrative Court of the Czech Republic asked the Court of Justice a preliminary question as to whether the interest in the protection of property may outweigh the obligation connected with the acquisition and storage of data on identifiable persons moving in the adjacent public space.

Do you manage to follow the case-law of other international Courts or of the Constitutional Courts?

As there are few international cases, and the EU, as an international organization, having a closer relation to international law than each State, it is perhaps hardly productive to follow the case-law of the International Court of Justice in The Hague. However, I have just recently used it as a Judge, in the matter of Western Sahara, but these are exceptional cases.

On the contrary, I follow the case-law of the Constitutional Courts in matters concerning the relations between EU law and the Constitutional law of the Member States, in particular in the context of ultra vires acts. These are issues the Constitutional Courts assess regarding whether the EU did or did not exceed the rights conferred on it by a Member State. Very active in this regard is the German Federal Constitutional Court.

EU law is currently interpreted by the Constitutional Courts as a law that is the product of the Constitution, since the conferral of powers has taken place on a constitutional basis. In this respect, the Constitution gains primacy over EU law, which is, however, contrary to the concept of EU law claiming its primacy. This is a kind of "war of law". Their "battle line" is legally interesting.


Human Rights in the European Union

Let us now turn to human rights in the European context. In Europe, after the Second World War, a common system of human rights protection was built, with the European Court of Human Rights (ECtHR) in Strasbourg, as the centre. The protection of human rights within the European Union followed this initial introduction. What is the relation of the Court of Justice to the ECtHR case-law? Is the case-law of the Strasbourg Court respected without any problems?

It can be said that yes, the case-law is respected. There is no area where we come into direct conflict and where we like to promote our own vision of protecting human rights. However, we are not obliged to apply the ECtHR case-law systematically, as the EU is not a party to the European Convention on Human Rights. Often, when relevant, we use the rulings of the Strasbourg Court. However, it is not a "mirror" or mechanical application.

The European Union has its own specifics. Its legal order is a law of integration, which presupposes a much closer sharing of common values and a much greater degree of trust among its members. Thus, if aspects of the case-law of these two Courts were in contradiction, it was at the time when the principle of mutual trust between the Member States of the EU was to be applied. This principle of EU law means that a Member State is not in principle entitled to control the specific respect for fundamental rights in another Member State because it is believed that the level of protection is equivalent in all Member States.

On the other hand, the Strasbourg Court assesses the behavior of not only EU countries but also countries with significant human rights problems, such as Russia or Turkey. Therefore, the ECtHR cannot apply the principle of mutual trust and requires respect for specific obligations. For example, in connection with the extradition or return of persons and them not to being sent to States where their fundamental rights could be violated. Adhering to such ECtHR case-law would, however, mean that the principle of mutual trust in the EU would not apply. Of course, the EU Court has a problem with this since this element also distinguishes EU law from public international law. This is one of the key issues that need to be resolved in order for the EU to accede to the European Convention.

With the Treaty of Lisbon, the EU Charter of Fundamental Rights was incorporated into European law in 2009, which is undoubtedly appropriate to perceive as progress.  The Charter has been in force for eight years now. To what extent do the judges of the Court of Justice use it? Is the real impact of its application growing?

Clearly it is. I do not observe the qualitative or quantitative difference from the use of the constitutional catalog of human rights protection in national affairs. The incorporation of the Charter into primary law opened a new chapter and a new segment of the application of EU law, including by national Constitutional Courts. They must now address the issue to which extent they can apply Constitutional fundamental rights according to the national catalog and to what extent they must leave room for the protection of fundamental rights under the Charter.

Preliminary rulings focusing on the application of the Charter are starting to multiply, typically concerning the transposition of directives where EU law lays down objectives and the general aim, while the specific implementation of the stated objective falls under national law. In the context of such implementation, the national catalog can be used as a matter of principle, if the preference, unity and effectiveness of EU law are maintained.

At the end of 2014, the Court issued its long-awaited Opinion No 2/2013 stating that the draft treaty on the accession of the EU to the European Convention on Human Rights (ECHR) is incompatible with EU law. However, the Treaty of Lisbon states that the EU should accede to the Convention. What do you think is the best way out of this situation?

The December 2014 opinion declared the incompatibility of the draft accession agreement with the primary law, in particular with the principle of the EU's autonomy and its law. We have followed Protocol no. 8 of the Treaty of Lisbon, which provides that the EU shall accede to the ECHR, but under conditions that ensure respect for its uniqueness and specificity. We have found that the draft treaty does not respect this requirement of the "union constituent". One of the problems was the principle of mutual trust.

Personally, I think that the autonomy of the EU law should be ensured by codifying the "Bosphorus" case-law. This means that the European Court of Human Rights can assess the protection of the rights guaranteed only in respect of the EU's legal order as a whole, and more specifically, whether the protection given by the EU is equivalent to that of the individual Member States party to the ECHR. The European Union can hardly be assimilated with states, as it is not a state. The ECHR has been constructed by States and is meant to serve States. An approach in the spirit of the Bosphorus case-law (examining the overall equivalence of protection and the absence of a review of specific matters with the exception of obvious irregularities) would provide the EU with sufficient autonomy, while at the same time the ECHR would allow the regulation of the protection of human rights in the EU. However, such a proposal is politically difficult to implement because certain third countries, such as Turkey, Russia, Switzerland and Norway, seem to be unwilling to accept double standards of protection in Europe.

It is being debated how the EU Court of Justice should look from an institutional point of view in the future. Are you in favor of extending the Tribunal, or rather introducing specialized Courts?

This is a problem raised by the Treaty of Lisbon, which implies the emergence of specialized courts and a three-stage system in which the "nodal authority" would probably be the Tribunal. The Court of Justice would become the "Constitutional Court" and "the highest court" in the EU. It would ensure the unity of EU law, whereas actual decision-making would take place at the Tribunal.

The Court's members seem mostly opposed to such an institutional arrangement. However, the situation has changed in recent years. Member States have abolished the only existing specialized Court (the Civil Service Tribunal as a "labor" EU Court) and its jurisdiction was taken over by the Tribunal. At the same time, the Tribunal's composition expanded twice.

The idea of specialized courts has so far been abandoned and a two-tier system has been maintained. Although the Tribunal has become a very large body, the two-stage procedure for the parties is more comprehensible than the complicated three-stage construction. For this reason, I am satisfied with the current situation.


Brexit is a threat to the unity of the European Union

The EU is now facing a variety of crises, including slow economic growth, Brexit and the refugee crisis. Which of the challenges do you personally consider to be the most important?

I do not consider the refugee crisis as a decisive one. It is definitely an acute problem, but it is not the first or last of its kind. None of the previous problems have ever lasted. Either it has been solved or it was resolved by itself. I think this will be the same case with the refugee crisis. The EU will handle this problem.

I see maintaining the unity of the EU as a much bigger problem. I am aiming at "Brexit", which has in fact knocked out the Court of Justice's case-law from the 1960s, especially the Costa v ENEL judgment. It held that EU law is a separate legal order that enjoys a primacy over all national law, including the Constitutions of the Member States. One of Costa's fundamental arguments was that the EU was based on the process of permanent convergence of the Member States and that these states therefore gave the EU (formerly the Community) its powers irreversibly.

The right of a Member State to leave the EU was first mentioned in the Treaty of Lisbon. This has led to a certain "degeneration" of the EU integration treaty, partly to the level of a common international treaty that governs classical cooperation between states. There was a supranational element to a certain extent, but the intergovernmental element resumed. Through Brexit, this deployment is taking place in practice.

If this continues, it may happen that the EU will eventually become a regular international organization, a "regional UN", and I think it is a problem.  If the United Kingdom leaves, and everything suggests that it will, a precedent will be set that any Member State may leave the "eternal" project of an integrated Europe, based on the outcome of a one-time referendum reflecting the current political mood in that country. The result would be a return to the period before World War II, with all the economic and security problems and risks of that time.


The work of a judge on the Court of Justice of the EU

What are the biggest differences between being a judge at the Constitutional Court of the Czech Republic and the Court of Justice of the EU?

At the Constitutional Court, I had to deal with more than twenty cases a month as a Judge-Rapporteur, while at the Court of Justice of the European Union, I am processing similar amounts for the whole year. The annual agenda of the Constitutional Court is about 4,000 submissions. The agenda for the Court of Justice is around 800 per year. From the quantitative point of view, therefore, the conditions of both judicial missions are dramatically different.

The difference is also in the quality of decision making. Simply put, out of those twenty cases per month at the Constitutional Court, nineteen were dismissed as manifestly unfounded. Complaints were judged by a formal "template" and rather superficially in terms of content. It is different at the Court of Justice. Of the 25 Judge-Rapporteur's cases a year, I will make two to three rejection resolutions. The remainder of the cases concern substantive judgments.

Finally, the subject of decision making is different. The main agenda of the Court is to rule on preliminary questions, particularly on the interpretation of the law. On the contrary, the constitutional complaint agenda is not primarily a decision on interpretation, but rather on the constitutional rights of certain persons. In other words, deciding on constitutional complaints is "concrete". However, deciding on preliminary questions is much more "abstract". This difference is certainly not absolute though.

What is the judge's work week in Luxembourg? Do you feel "at home", or is it a place where you mainly work?

European judges in Luxembourg are replacing the whole body of EU courts that does not exist. It is represented only by the national courts and the EU Court in Luxembourg. So we have to rebuild, in its own way, everything that the whole body of national courts does elsewhere. At the national level, the higher and supreme courts do not work as courts of the first instance and instead decide cases only on the basis of the case file, without personal contact with the parties. On the other hand, the EU Court must often organize oral hearings so that its "justice" can be seen in Europe.

We do this to an extent that is inconceivable when compared to the top national courts. For example, I had 80 oral hearings in 2016, about two per week. Each of them lasts for about half a day, so I am bound to meetings with the parties for one business day a week.

Another "burden" is represented by court meetings. Each Judge on the Court of Justice of the EU is simultaneously a member of a three-member, five-member and a large Senate, all of which are simultaneously dealing with several cases at the same time. Every week I take part in the decision of about seven to ten cases. Senate meetings take two working days a week.

In the remaining two working days I work in my cabinet where there are four other lawyers who are preparing documents for decision-making. I have to consult with them and give them editorial instructions. Self-study and intellectual processing of cases, unfortunately, remains for the weekend. I have been working essentially seven days a week for thirteen years. There is not much time left for other dimensions of life with this kind of work.

When you have more free time do you return to the Czech Republic?

Yes I do. Since air travel from Luxembourg to Brno is illusory in practice, I drive by car, which means driving 950 kilometers back and forth. That is, a journey lasting ten hours, basically a whole day. This significantly reduces my stays in Brno. The prestige of being a judge on the Court of Justice of the European Union has its costs in practical aspects. My work is interesting but also physically demanding. Thus, definitely not for the sick or for those who want to follow the motto "carpe diem". In any case, I do not complain. Such work is capable of fulfilling my life.

Do you know what you would like to do after finishing your term as a judge for the EU? Can we expect you to return to the academic sphere?

My mandate ends when I am 68 years old, which is on the edge of the retirement age for judges. I still have an interest in academic and literary activity. If my health allows it, I would like to work at the Faculty of Law in Brno for some time after returning from Luxembourg.



The Czech version of the interview was published in February 2017 and can be viewed here. Translation: Tereza Bártová, Karolína Michková and Jan Lhotský. English proofreading: Douglas Radcliff.


Judge Jiří Malenovský (in the middle), source: Court of Justice of the EU