European Union Court of Justice Series: Interview with Judge Siniša Rodin

Episode #11 June 23, 2025
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Borderlines CJEU podcast cover #11

Berkeley Law’s Borderlines podcast host, Professor Katerina Linos, and guest co-host, Professor Mark Pollack (Temple University), conduct a special interview series profiling Judges and Advocates General serving at the Court of Justice of the European Union (CJEU) in Luxembourg.

Episode #11 of the Borderlines CJEU Series features CJEU Judge Siniša Rodin in conversation with Professor Katerina Linos (Berkeley). Appointed as a Judge at the Court of Justice in 2013, Judge Rodin discusses his remarkable career, ranging from becoming a distinguished Professor of EU law at the University of Zagreb to serving as a member of Croatia’s Constitutional Amendment Committee. Intertwined with Judge Rodin’s experiences is a discussion of Croatia’s accession to the EU, and how from Judge Rodin’s perspective, EU membership initially felt like “science fiction.”

Listeners will come away with a better understanding of the European Citizens Initiative, or “People’s Initiative,” as Judge Rodin calls it. Specifically, the case One of Us, is discussed to illustrate how the People’s Initiative enables citizens voices to be heard on pertinent legal issues. With this context in mind, listeners will also hear about how the Court’s role is frequently to interpret “gray zones,” where it is unclear whether an issue is within the powers of the EU to decide or should be an exclusive competence of the Member States. Finally, Judge Rodin concludes by discussing current trends impacting the Court, such as the reasoning behind the practice of anonymizing cases with invented names and the increase in length of the Court’s judgments.

Born in Zagreb, Croatia, Judge Rodin obtained his law degree from the University of Zagreb in 1987 and a Master of Laws from the University of Michigan in 1992. He continued his studies at the University of Zagreb, becoming a Doctor of Laws in 1995. He was a Fulbright Fellow and Visiting Scholar at Harvard University and later a visiting professor at Cornell Law School. Since 2003, he has been a Professor of EU law at the University of Zagreb, where in 2006 he was awarded the Jean Monnet Chair, of which he became an ad personam holder in 2011. During his university career, Judge Rodin published numerous works that contributed to the dissemination of EU law in Croatia. Between 2006 and 2011, he was a member of the Croatian team that defined the negotiating framework and the process regarding the accession of Croatia to the European Union whilst also being, from 2009 to 2010, a member of the Croatian Constitutional Amendment Committee and President of the working group on Croatia’s EU membership. He was the first Croatian judge to be appointed at the Court of Justice. The views expressed in this interview are personal and do not represent the views of the Court of Justice of the European Union.

 

Cases and sources mentioned in the podcast:

  • Rodin, Siniša. (2013). In the Classroom and the Courtroom. Maastricht Journal of European and Comparative Law, 20(4), 475–
    https://doi.org/10.1177/1023263X1302000401
  • Link to T-561/14, European Citizens’ Initiative One of Us and others v Commission case

https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-04/cp180052en.pdf

  • Link to the European Citizens’ Initiative

https://citizens-initiative.europa.eu/_en

  • Link to The Treaty on European Union (Article 2)

https://eur-lex.europa.eu/resource.html?uri=cellar:2bf140bf-a3f8-4ab2-b506-fd71826e6da6.0023.02/DOC_1&format=PDF

  • Link to European Convention on Human Rights

https://www.echr.coe.int/documents/d/echr/convention_ENG

https://curia.europa.eu/juris/document/document.jsf?text=&docid=173244&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2797488

  • Link to Next Generation EU
    https://next-generation-eu.europa.eu/index_en
  • Links to C-156/21 Hungary v Parliament and Council case and C-157/21 Poland v Parliament and Council case, where the Court upheld the validity of the Rule of Law Conditionality Regulation

https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-02/cp220028en.pdf
https://curia.europa.eu/juris/document/document.jsf?text=&docid=250424&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=2800249
https://curia.europa.eu/juris/document/document.jsf?text=&docid=250425&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=2800572

https://curia.europa.eu/juris/showPdf.jsf?text=&docid=98171&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1461008
https://curia.europa.eu/juris/showPdf.jsf?text=&docid=98089&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1461008

 

Select Speeches and Publications by Judge Rodin for further research:

https://doi.org/10.1093/ajcl/avw014

  • Perišin, Tamara, and Siniša Rodin, eds. (2018). The Transformation or Reconstitution of Europe: The Critical Legal Studies Perspective on the Role of the Courts in the European Union. Oxford, London, Portland: Hart Publishing Ltd. http://dx.doi.org/10.5040/9781509907281
  • Rodin, Siniša. (2019). Interpretation in the Court of Justice of the European Union: Originalism, Purposivism, and L’ Economie Générale. American University International Law Review, 34(3), 601–
    https://digitalcommons.wcl.american.edu/auilr/vol34/iss3/6

Citation: Linos, Katerina and Pollack, Mark. Episode #11: Interview with Judge Siniša Rodin. Borderlines podcast, European Union Court of Justice Series (June 23, 2025). https://www.law.berkeley.edu/podcast-episode/711985/

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Episode Transcript

Judge Siniša Rodin Interview

Katerina Linos: Welcome to Borderlines. I’m Katerina Linos, the Michael Heyman Professor of Law at the University of California at Berkeley.

Mark Pollack: And I’m Mark Pollack, Freaney Professor of Political Science and Law and Jean Monnet Chair at Temple University.

Katerina Linos: This is our series of interviews conducted in summer and winter 2024 with the Judges and Advocates General of the Court of Justice of the European Union in Luxembourg.

Little is known about the backgrounds, careers, and personalities of the key decision-makers on Europe’s highest court, and we hope to create an archive to shed light on these jurists.

Katerina Linos: In today’s episode, I speak with Judge Rodin of the Court of Justice of the European Union. Judge Rodin brings a fascinating background bridging academia and constitutional reform, from Professor of EU law to pivotal member of Croatia’s Constitutional Amendment Committee during EU accession.

In our conversation, Judge Rodin shares insights into Croatia’s challenging journey to EU membership, including how EU accession initially felt like science fiction, but gradually evolved into reality. He discusses the complex constitutional questions around EU supremacy that arose during accession, particularly given that Croatia’s Constitution was drafted in the 1990s when EU membership seemed unimaginable. We also explore the European Citizens’ Initiative through the lens of the landmark One of Us case, which dealt with the contentious issues of abortion and citizen-driven referenda.

Judge Rodin explains how this People’s Initiative allows citizens to bring important legal issues before the European Commission, and what discretion the Commission has to act or set aside these efforts. As you’ll hear, Judge Rodin offers unique perspectives on how the Court interprets the gray zones when it’s unclear whether issues fall within EU powers or remain exclusive competencies of Member States. We hope you’ll enjoy this episode.

I am delighted to be here with you, Judge Rodin.

You have had a remarkable career. You’ve been on the Court for more than a decade now. You joined in 2013. Before that, you were a distinguished Professor of European Union Law at the University of Zagreb. You worked on Croatia’s Constitutional Amendment Committee. You helped negotiate the accession of Croatia to the EU.

I can start by asking about some of those experiences. Perhaps I’ll start by asking about Croatian accession and what some of the key challenges were, what your role was in those negotiations.

Judge Siniša Rodin: You cannot even imagine that. It is such a complicated and unimaginable story. And the further you go in history, the stranger things are.

And maybe I should start with one step beyond the accession – how I started doing EU law. I started as a constitutional lawyer, actually. I was a research assistant for a constitutional law professor. And I was somehow dissatisfied with myself. I’d just graduated. I started to work at the faculty and I knew there was something more to that. I couldn’t figure out what that “more” is, until I got my admission to the University of Michigan Law School in 1991. I’m Class of ‘92 actually; Master’s [LL.M.]. And that changed the whole perspective. You know, there was no going back.

That one year in the United States at the University of Michigan changed my whole way of thinking. When I came back I said, “Okay, fine, constitutional law, that’s all great,” but let’s do something else. And I had to do constitutional law for my professor still, but, I started, as a side work, doing my own research in the European Communities. That’s how it all started. I was first, and the only for some time, in Croatia who was doing that. European Community law was like science fiction, nobody really knew what that meant. But gradually, it became important and I had a team of collaborators, started to teach EU law, and gradually, I became a part of this negotiating process. Although, I have to admit, my role was marginal in the negotiation process itself.

I was a member of the Committee on Constitutional Amendment, and actually, my contribution was on the constitutional level. I was framing, with other members of the team, the provisions of the Constitution which had to be changed in order to enable precious accession to the Union; including supremacy of EU law, status of EU law, and national legal order, in general.

Katerina Linos: Let me just follow up on the Michigan LL.M. Some people come to the United States and say, “Oh, legal realism and not pure formalism – that’s what changes everything.” But at Michigan, they also have a strong EU law program. So I wasn’t sure when you said your life changed through that one year – Michigan’s also cold – what about it was transformative?

Judge Siniša Rodin: I wouldn’t link it to the substance only. I would link it to the method. I think that the American method of teaching and higher education in general is fundamentally different from what I’ve been used to in Europe. Not just Socratic method, but by the way professors address students, how they cooperate with students, how they try to make the best out of students that they have opportunity to talk to. This was maybe even more important than the substance I’ve learned. Legal realism makes a big part of it. And all my life, until then and even later, I was struggling against formalism, against normativism, and that changed my way of thinking, I would say. Even today, I carry that with me and I always ask myself, “What terrible can happen if we decide one way and not another?” And that’s not typical for normative legal thinking. Most of European legal thought would just try to find out solutions within the four corners of the rule and then try to fit that rule within other legal rules. It’s a kind of legal thinking which is,not always connected to reality.

Katerina Linos: It’s fascinating to hear both that American training is useful and creative – and when I read the jurisprudence of the Court, to see judgments that take that form – but to hear that consequences are really significant, that it’s not entirely “four corners.”

I was also taken by your comment that at some point in Croatian history, EU membership was science fiction. But you started with science fiction and at some point it became reality. When did the prospect of joining the EU become reality? And when did the burden of making sure – the Constitution, the acquis –- everything was reconciled? Tell me about that.

Judge Siniša Rodin: History sometimes repeats in strange and different ways. Now, the focus of the global community is on the war in Ukraine and Russian aggression. But in fact, at the time in the early nineties, Croatia was in a very similar situation like Ukraine is today.

Personally, I think that one of the reasons why Yugoslavia collapsed as a state, and why Slovenia and Croatia seek independence, was because they wanted to join the European Union. Serbia, under Milošević, obviously did not. In that setting, everything started only after Croatia assured its independence, when it was recognized an independent state, which happened in the case of the United States in April 1992.

So the United States recognized the independence of Croatia then, and gradually it started. The Croatian government entered into negotiating process for the first conclusion of the Association Agreement and later on it evolved. It’s a long, long process, which ended, happily, with Croatia’s membership of the EU.

Katerina Linos: You said the hardest things, in terms of the constitutional amendments, concerned supremacy. Were there other issues that were difficult?

Judge Siniša Rodin: The Croatian Constitution was drafted, as the first constitution of Croatia as an independent state, in late 1990. At that time, membership of the EU, even if it was desired, was not in sight.

So the drafters of the Constitution didn’t really integrate provisions that were needed for EU membership. And there’s a whole new chapter which was added later on, just before the accession. These provisions mainly deal with the relationship of national law and EU law, including supremacy – now we talk about primacy sometimes, but that’s a separate question – direct effect, individual rights, judicial protection. So there are provisions which specifically refer to membership of the European Union.

Katerina Linos: And you worked on amending the Constitution so that those things are clear constitutionally in Croatia. There hasn’t been this back-and-forth with other Constitutional Courts where they go back and forth on direct effect, they go back and forth on primacy.

Judge Siniša Rodin: This was not technically a part of the negotiating process, but it was necessary for Croatia to adopt these amendments to be able to adhere to the European Union, yes. –

Katerina Linos: And then when you taught EU law, was it science fiction or was it a reality at that point?

Judge Siniša Rodin: It was emerging reality, and I can say that I’m so proud of my students who had courage to take my course at the time. Because that was not something that they really needed for their future jobs. Being an attorney or a judge at that time did not really require knowledge of EU law.

Later on, I discovered many of those students, especially my first students in the class, they all developed interest in EU affairs, and now many of them work in Brussels or some of them here. One of them is my clerk here. Beyond EU institutions, even in Croatia, they now hold prominent positions in judiciary and elsewhere, in public administration, and every here and there I meet one of them, and, well, I’m so happy.

Katerina Linos: So they were four-sided, or they had very good mentors, or more likely a combination, and then some luck.

Judge Siniša Rodin: Well, it’s a combination of everything.

Katerina Linos: You’ve been on the Court since 2013. How has that changed, moving from an EU law academic position to being a judge?

Judge Siniša Rodin: It was not an easy transition. Actually, I published a small editorial in Maastricht Journal of International Law, maybe less than 10 pages, where I try to explain the differences between teaching and adjudication.

The most important thing that a new judge has to learn fast is how to reduce very complex factual situations to, let’s say, legally cognizable material, and then how to deal with that legally cognizable material and how to solve the case.

This Court is a very well-functioning institution. Everything is well organized. Rules of procedure are facilitating our effectiveness, so to say. that was a surprise to me. I’ve never seen anything like that. Of course, I’ve seen a bit of how other courts work and I was not completely ignorant. But I have to say that I was very positively surprised with the method of work here. What was so impressive was that once we, within a case, adopt a certain position, we don’t put it in question anymore. We go only forward. We never look backward, except in some exceptional situations when it’s always possible. But as a rule, we are narrowing down the case into the final solution.

Katerina Linos: As I’m walking around, I do see a very well-functioning Court with rapporteurs, assistants, a press office. It does seem wonderful. Let me ask you about a particular procedural feature of the Court of Justice which makes it unique: the preliminary reference procedure.

So in the U.S. we have interlocutory appeals, but we say, “Oh, it’s much easier to have a judge at the trial level resolve all the facts and the law,” and only then do we have a regular appeal if a legal issue comes up. But here, this feature where a lot of the cases come up as legal questions from a particular court, how do you work to reshape that question to decide what is admissible? You said you need to reduce a complicated dossier into a legal question Someone has already tried, but that’s not the version you often go with. How does that work?

Judge Siniša Rodin: Well, I have to start with a small caveat. We deal with legal issues, and we like to think that we deal with legal issues only, but at this level of jurisdiction, every legal issue carries some political importance. Even if we deal with legal issues, which we do, once the judgment is published and out, it is the object of debate and it becomes politicized by external observers.

So there’s no way to live in an exclusive normative world without looking to the real world, and we have to be aware of that. This said, when it comes to preliminary references, we are just one part of the entire procedure, and the main part of the procedure is actually happening in front of a national court.

So it is national judges who are deciding a case which involves an issue of EU law and we have jurisdiction only to interpret EU law. We don’t have jurisdiction to interpret national law. We have to take national law as a fact. And also, we need to take the question asked by the national judge as being truthful. So we cannot question what is behind; we have to take it as it is. This said, we necessarily have to look into national law because we need to understand the nature of the dispute which is behind. And we have to decide, as one of the first jurisdictional questions, whether our answer is useful to the judge who asked the question. Because if it’s not useful, we will not have competence to decide about that. So there has to be some practical link between the question asked and our answer. So we often say, and President Lenaerts would also often emphasize, we interpret EU law; national judges apply; and, if they have any doubt, they are under obligation – or they have possibility, if it’s not the case of the highest jurisdiction in the country – to ask a reference.

Katerina Linos: He used this very catchy phrase, “We’re the Help Desk – you call us if you have a question and we try to be as helpful as possible.” But I do want to ask about this question: you have to understand national law. One of the interesting features to me of the procedure here is the judge rapporteur, which it seems that as a matter of tradition is never from the country that is most closely implicated in the proceedings.

Judge Siniša Rodin: Normally that would be the case, although, we can sit in our “national cases.” So it happens here and there, that the judge from one Member State sits in a case which originates from that Member State, but they wouldn’t, as a rule, be a reporting judge.

Katerina Linos: In the U.S., we have majorities and dissents, we have controversies, and who writes the opinion is decided very late after we’ve counted votes, and it’s critical to the scope of the opinion.

But it seems that the reporting judge is chosen very early on and guides the case through the end of the procedure. Could you tell me a little bit about the work of a reporting judge?

Judge Siniša Rodin: Exactly. I would say when you compare this Court to the U.S. Supreme Court, that there are a lot of differences. One of these differences is just what you’ve mentioned, that the reporting judge is decided at the beginning of the whole process. Actually, it starts with the President of the Court giving the case to a reporting judge and the First Advocate General assigning a case to one of the Advocate Generals.

What happens is that the reporting judge writes an initial report, which needs to be co-signed by the Advocate General. If the two agree, everything is more or less smooth and the case will proceed as proposed. But if there is some difference in opinion, then normally, this would be discussed at our general meeting, which takes place every Tuesday afternoon when we discuss things like that. We discuss only procedural matters, but what needs to be decided is what will be the formation of the Court – it will be a Chamber of three, five, fifteen judges. The Advocate General needs to say whether he or she wants to write an opinion, or not. There are cases that are decided without an opinion of an Advocate General. Whether we need a hearing or not; typically, the Court will have a hearing in a situation when it is not sufficiently informed to be able to decide the case. But there are cases that are decided without the hearing. And there might be other procedural issues that need to be decided.

Once this is done, then the Chamber which was given the case takes the case and the remaining judges are relieved of their duties, so they have nothing to do with the case anymore until everything is decided. It’s only the Chamber that decides.

It is quite possible that the reporting judge remains in the minority, and has to write the judgment against the original idea, or even against some sentiment how the case should be decided. So all our judgments are collective work. A reporting judge is someone who gives the rhythm and tone to the case. But every member of the formation of the Chamber is a contributor and quite often we reach an agreement. We are not supposed to disclose our discussions within the Chamber, but very often we reach an agreement which amalgamates different views, and the view of the reporting judge is maybe a little bit more heavy, so to say, but it’s not a guarantee. It can be the other way around.

Katerina Linos: So just to be entirely clear, there’s a number of cases where the Advocate General and the Court come down differently on important issues. That’s very visible to the public. But what’s not visible is the fact that a reporting judge has authored an opinion and would have ruled the other way – was in the minority – that we never know about, but that’s the scope of the ruling. The draft opinion is by the reporting judge.

Judge Siniša Rodin: Just a small correction: the author of our judgments is always the Court, notwithstanding the formation. So it could be Chamber of three; Chamber of three will also pronounce a judgment in the name of the Court. So it’s always the Court. And the reporting judge is an officer of the Court, and he has the role, but that’s not necessarily individual work of that judge. It’s always collective work of the Chamber.

Katerina Linos: I will ask you about the One of Us case, because as an American, it’s fascinating for many reasons. One is, it’s a case about abortion, and our most controversial cases are about abortion. Our Court membership is determined on abortion, so that’s one substantive issue. Who should do research, who should fund developing States – the substance is fascinating. But also, to me, the procedure is fascinating. And by that, I mean the role of the European Commission in setting the agenda for EU rules, the roles of citizens.

I’ll just do a little bit of background. So there’s a procedure which allows for citizen initiatives. When you get a million signatures you can go before the Commission, and the Commission must address the fact that so many citizens want some action. In this case, the initiative was to limit funding for abortions, be they through stem cell research, be it for development aid agreements, and the Commission decided not to take the actions that the citizen initiative wanted and the Court upheld the discretion of the Commission to act as it did. Am I getting the judgment roughly right?

Judge Siniša Rodin: Yes.

Katerina Linos: So can I ask you first about this role of the Commission to set agendas, to have a European Union that is very participatory? Do you know of any constitutional equivalence to the European Commission? To me, it seems that the EU is represented by Ursula von der Leyen, by a bureaucrat, at the end of the day. The administrative state in Brussels is very, very active. There’s lots and lots of regulation. And the idea that all this comes from a bureaucracy, rather than from a different branch, is amazing to me as part of the structure of the Treaty.

Judge Siniša Rodin: Well, first of all, what I should say is that the European Union is not a state. It’s not a federal state, it’s not a confederal state, it is a supranational organization of States. And this makes a lot of difference. Although EU does have institutions which resemble institutions of a sovereign state, there are big differences.

So we have European Parliament, which is expression of democratic will of the peoples of Europe. We have the European Council, which is representing the voice of the Member States. And then we have the Commission, which is somehow speaking for the Union itself. But when it comes to legislation, the sole legislative initiative is under Commission. So Commission initiates all legislation and it has a very complex bureaucratic structure that designs this legislation beforehand.

Also, another important element is that Articles 4 and 5 of the Treaty of the European Union. devise a very complex system of separation of powers; vertical, horizontal. We call it “competencies.” We don’t speak about “powers.” We speak about competencies. And the European Union is an organization of conferred powers. So it has only those powers that have been explicitly conferred to it. So when it comes to issues you’ve mentioned, like health, this is, as, provided by the Treaties, competence of the Member States. European Union does not have a competence as such to regulate health.

The same counts for biotech research, abortion – a lot of issues that in the United States are or can be regulated on federal level. Here, this would not be the case. Of course, there is a huge gray zone, and this is the place where this Court steps in.

We have to decide based on the principles of the Treaty and based on different other considerations, whether something is within the powers of the EU to decide or not. Now, the Commission. Our standing case law is that the Commission has very wide discretion in deciding on complex technical issues – economical, but in this case also non-economic. This wide discretion is subject to manifest error test. This is something like rationality review in the United States. So as long as there is any rational basis for a Commission decision, this Court would allow discretion to that institution. That was one of the points that were litigated in this case.

So, now: “People’s Initiative” [European Citizens’ Initiative – ECI]. It’s a form of direct democracy. But the Treaties laid down the whole system on grounds of representative democracy. So “democracy” which is manifested in the European Parliament is representative democracy, and People’s Initiative was an avenue where direct voice of the people could be introduced in the whole procedure, but through the filter of the European Commission. What I think is that having a huge responsibility and keeping the right balance between different principles enshrined in the Treaties, the Commission has to enjoy certain discretion in its judgment. And that’s what the Court said. We said, “Broad discretion, subject to rationality review,” and we didn’t find anything wrong with that in that case.

Katerina Linos: So, in the state of California, we have referenda. In Switzerland, they have referenda. In some science fiction world, is there a treaty amendment world where we would have Citizens’ Initiatives that work like referenda Europe-wide? Is that at all in the future? Certainly not in the Treaties as we see them now.

Judge Siniša Rodin: As the things stand now, we don’t have mandatory referenda. There is no obligation for the Commission to acknowledge the results of the People’s Initiative. But of course, it is at liberty to do so.

Katerina Linos: Let me ask you about One of Us and compare it to Dobbs. So at some formal level, the U.S. Supreme Court ruled that it is up to the states to regulate abortion and at some formal level, One of Us said that this is a competence of the Member States. It’s not European competence. Do you think the case would have been decided the same way if Dobbs had been issued earlier?

Judge Siniša Rodin: No, I don’t think so, but there’s another interesting element that plays a role.

As I said, the EU is a Union of conferred powers. So it has only those powers that are explicitly conferred to it. For the rest, it’s either joint exercise of powers with the Member States or exclusive competence of the Member States. So this is where things become interesting. Even when they exercise their exclusive competence, Member States must not regulate against the fundamental values and principles of EU law. That counts for education, that counts for health, that counts for other areas where Member States have exclusive competence. So this exclusive competence is in some way hindered by their obligation, and this obligation comes from the sense of community, from loyal cooperation between the States.

 I would say that what made the difference in this balance of, of powers between the Union and the Member States is the Charter of Fundamental Rights of the EU. In a way, the Charter of Fundamental Rights created the formal body of law expressed in language of individual rights, which has now become a measure not just for action of the European Union, but also for action of the Member States.

Although I have to say all the Member States of the European Union are at the same time parties to the European Human Rights Convention. They all have bills of rights in their State constitutions. So there is a large degree of correspondence of those rights. But what is different: it gives this Court, let’s say, more latitude in interpreting them. Because when we interpret EU law, we also interpret fundamental rights enshrined in the Charter, and this bears consequence for the Member States.

Katerina Linos: So just to be sure I’m understanding what you’re saying: in the U.S., a lot of states are banning abortion in all circumstances. That case has not come before this Court, but you could imagine a circumstance where a national court or a national legislature bans abortion in all circumstance. The case comes before this Court, and there’s a question about whether fundamental rights of women to access health care have been violated, even though this is a competence of the Member States.

Judge Siniša Rodin: Well, I do not dare to speculate on that because such a case has not arrived yet. But we did have cases concerning the equal treatment of same-sex couples. We have some other cases which were going within the same line of reasoning, and this Court sometimes uses the principle of equality to fine tune the exercise of exclusive competence of Member States.

Katerina Linos: So let me follow up a bit on conferred competences in the COVID crisis. It seemed that there was a big financial stimulus program, Next Generation EU, which was established on a variety of Treaty bases. It never came to this Court, but the German Constitutional Court held, “This is within European competences.”

I can imagine that in Brussels, they’re now thinking about creative ways of addressing common defense financing and Treaty limitations to that. When I was taught EU law a long time ago, there was exactly one case, on tobacco, where the Commission was found to have exceeded its competences. Has there been more case law like that since, or is it often the case that you have struck down some actions taken by the other branches as exceeding the competences delegated to the Union?

Judge Siniša Rodin: From time to time, this Court does strike down EU legislation on different grounds. It doesn’t happen very often, but it does happen. The method that is being used more often is trying to find some fair balance – between individual rights, the competence of the European Union, the exclusive competences of the Member States. It’s not black and white. This Court very often engages into proportionality analysis. All these cases of the kind you’ve mentioned would be probably subject to proportionality analysis, which ends up as some kind of balancing test. And that’s how we work, and that’s maybe of the reasons why the black-and-white decisions are not so present. But we do not shy off, saying that “European legislation is off limits.”

Katerina Linos: Let me turn to Article 2 and some of the jurisprudence there because to me it’s fascinating that the Court has put in place some rules that say “This Article has been violated by actions the Hungarian government put in place,” and “We will follow up when our judgments are disregarded with sanctions,“ and “We will establish what rule of law means.”

Some people have said, “Well, you know, at a minimum rule of law means judicial independence; we’re doing kind of very minimalist interpretation of the common European values.” And other critics have said, “No, if you take Article 2 and you look at the language – and it talks about justice and fairness in pretty ambiguous terms – this allows a court to impose homogeneity across 27 Member States that are quite different.”

Could you talk about what Article 2 is about and how far you can go and have gone?

Judge Siniša Rodin: Right. Well, I would say that Article 2 has an increasing importance in our reasoning. This Court had said, in the conditionality judgment – Hungary and Poland v. Parliament and the Council – we explicitly said that values of Article 2 make part of the identity of the EU. And the Article itself says that these are the values that are common to all Member States.

So my question was always, is this statement normative or descriptive? It appears to be normative. It appears to be normative because it is a normative claim that every Member State has to meet as long as it is a Member State of the European Union.

It’s nowhere written that the European Union is a constitutional liberal democracy. But Article 2 screams exactly that we are. So these are all liberal constitutional values that make the essence of what the European Union is, and for the Member States to be a part of this enterprise, they have to live up to the same values. So that’s the whole point.

You said “rule of law” litigation, and you are absolutely right. I would say that 90%, if not more, of our so-called “rule of law litigation” concerns judicial independence. But the rule of law is more than that. The rule of law is separation of powers, the rule of law is freedom of speech and press; the rule of law can involve many, many other things as we know it.

It happened that independence of judiciary has become a major point of litigation. And it is a part of the rule of law, but it’s not the only part of the rule of law. And it will be interesting to see if we will get cases that go further than that. Because principles are there. Principles are now laid down.

Katerina Linos: So can I ask about Hungary in particular? As it seems that political change in Poland might make some of these judgments less essential. The Court needs to have the same jurisprudence at some level, whether it’s the government of Romania, the government of Greece, the government of Italy.

Judge Siniša Rodin: Behind legal rules there is legal culture. And we have different legal cultures in different Member States. Now don’t take my word for it as hundred percent accurate, because I never did the research on that. This results from my conversation with German friends and colleagues. At one point, I discovered that in Germany, to be appointed as a professor at the university, your appointment needs to be approved by the Minister of Education of a German state. Not the central state. This is decentralized in Germany, I said, “Wow, this is terrible, if the executive can decide whether a university can appoint a professor or not.” The fact is that no German Minister of Education has ever refused to sign the appointment decision made by a university in the first instance, except once. At that one time, this negative decision was brought to the Constitutional Court. And here, how I understood it, that one time the Constitutional Court said that the Minister does not have power to decline the decision.

So you see, the appointment is substantively in the hands of universities. Formally, it is the Minister who has to sign. That’s German legal culture and tradition.

Not every country has the same tradition. Some legal systems take appointment powers literally. So if you transplant the German solution into, another legal system, it may function in a completely different way. It could mean a different outcome. It could mean that the Minister has real power to refuse an appointment of a professor. Same rule, different outcome

Katerina Linos: The implication is if the same rule was put in place by the Greek government and the Greek government was just not appointing, say, left-wing professors for some reason, the Court would review that rule differently, even if formally it is the same rule. The application really matters. Is that fair to say?

Judge Siniša Rodin: When you look into specifics of a national legal system, you must look beyond the rules. You must look into practice, and you must look into the real situation.

I understand your question. You are actually asking, are we more harsh towards some Member States and less harsh in respect of others. I wouldn’t say so. It’s just when you look beyond this layer of legal rules, you discover the situation which is maybe different than, on its face.

Katerina Linos: Let me put the question differently. I understand some of the issues with judicial dialogue historically had to do with supremacy and the fact that some Courts at the high level would not send preliminary references. Now that has seemed to be resolved. All the Member States send preliminary references. I understand how dialogue works with the German, with the Italian, with the Croatian judiciaries. How does it work with the Hungarian judiciary? You’re getting preliminary references. The government of Hungary ignores some of your judgments. You’re asking them to pay a couple hundred million Euros. How does that work?

Judge Siniša Rodin: We do get preliminary references from all Member States. Sometimes I look into Christian philosophy to try to explain some things, and I came across St. Augustine’s writing on Trinity. At one place, he talks about differences in interpretation of the Bible. And he says, and I’ll read it to you – “After all, no one would dream of blaming the sacred authors of God’s own books for the immense variety there is of heretical errors, though all the heretics try to defend their false and misleading opinions from those various scriptures.”

So you have the same text and some parties will interpret it in one way, and some parties in the other. And this goes all the way back to St. Augustine in the 3rd century. I would think that the reason why we, get references from courts regardless of their core beliefs, so to say, is that they want to get certain interpretation of EU law that is, in one way or another, necessary for them to reach a decision, whatever that decision would be.

So the outcome of the local decision is, well, a separate question. But they need the interpretation which would guide them. If you have divergence, if you have, as St. Augustine would put it, heretical views that are based on the same scripture, well, this leads to diversity in interpretation.

And that’s why we exist, you know, to make, uniform interpretation of EU law. And I would think that national courts need that and want that. And that’s why they ask for a preliminary references. They need some kind of a single voice that will give them guidance.

Katerina Linos: I’m fascinated by your reference to St. Augustine, and I wanted to ask about Christianity as a fundamental value of the European Union. So if you go to Polish or Hungarian nationalist parties, they will say “What it means to be European is to be Christian. This is what we support as nationalist parties.” That will be nowhere in the jurisprudence of this Court.

But some of the judgments that make it into the press in the U.S. are the judgments about Muslim veils, which both you and the Strasbourg Court have repeatedly upheld. The American criticism of those particular decisions is uniform. We don’t understand why this jurisprudence goes the way it does. Our most basic interpretation is “Christian symbols are acceptable and others are not.” That case law has been very, very consistent in both Courts and very puzzling to outsiders.

Judge Siniša Rodin: I didn’t refer to St. Augustine because of a specific religion to which he belonged. I was referring to him because I wanted to make, the point about judicial neutrality. Judicial neutrality requires us to treat everyone equally. That’s the whole point. But how can you do that if you don’t have a single standard? If you have a plurality of possible interpretations, some of which go in one way, the other go in the other, but they are all based on the same text.

So I would say that our role on the Court is not to support any political, social, or religious views, but to simply allow everyone to have or to live a good life, according to their best opinion, as long as that person doesn’t hurt the others. That’s the fundamental liberal principle. So in that sense, Christianity, or Islam, or any other religion. We need to be a neutral institution which supports the liberal idea, and the liberal idea is equality before law and individual rights.

Katerina Linos: Let me turn back to Hungary. One way to defend the rules on Hungary is to say, “Finally, the Commission was just too slow. They were negotiating too slowly with a government that clearly had no interest in respecting the citizens of Hungary’s rights to elections, democracy.” At least the Court told them, “Take us more seriously.”

I come from the country of Greece. Our Membership negotiations were suspended when we had a dictatorship. This is a long time ago. Like, it’s good to have someone saying, “If you want to be in the European Union, democracy is a basic condition, and that’s not what the Hungarian government is doing.” Would you go as far as saying that that’s the role of the Court? Or is that just far too political a statement?

Judge Siniša Rodin: Writing extrajudicially, I published a paper where I said something like this: if you want to have judicial neutrality, you must not be neutral on constitutional level. So there are two kinds of neutrality, and one is constitutional, the other one is sub-constitutional, so to say. I would think that Treaties are not neutral. Treaties clearly opt for liberal constitutionalism, and for democracy, and for the values in Article 2. And that’s, after all, what we said in this judgment that I’ve mentioned. So when it comes to defense of liberal constitutionalism, I would say that the task of this Court is to defend the values of Article 2, which embody exactly that idea. How that crystallizes in concrete case law, that’s another issue. But I would say that the constitutional framework is present, and today it’s more or less clear.

Katerina Linos: Let me ask a final question. You’ve served on the Court for more than a decade The issues have changed, from the Treaty amendments, the types of cases you get. What do you see as really big changes that we haven’t touched on? What are some really big developments that are about to happen?

Judge Siniša Rodin: I was thinking a bit about these trends that can be identified. Maybe not in order of importance or not any specific order, just for what first occurred to me. So one trend is the increasing importance of fundamental rights and the Charter of Fundamental Rights of the European Union. Gradually, the Charter has become a standard for interpretation of entire EU law and national law for the national courts. National courts have to apply the Charter as interpreted by this Court when they implement law of the European Union. So it applies both to the Member States and to the EU.

You will see when you have just a quick look through our more recent case law that the Charter is often cited and often used in interpretation. And sometimes it is used even to reframe the meaning of EU law that has already been formed.

This comes with a little concern, that we might be turning into a court of human rights, which we are not meant to be. When reference to a Charter right can affect the outcome of the case, then it’s absolutely justified to interpret law, and to apply law in this sense. But sometimes there is nothing wrong with the law as it is. And here I would say I’m more reserved. If a case can be solved in line with the Charter without any problematic encroachments in fundamental rights, then I would be satisfied with dealing with the case on that basis. But often, the Charter changes the outcome of the case. And then, we have the possibility to reinterpret some existing practice or add new things. So we say, “we interpret law in light of the Charter.”

Katerina Linos: So, courts don’t like to reverse themselves or ever say that “We’ve made a really big change.” But is there some case law that you say, “Look, the Charter is more recently adopted as uniform law.” Is there some big reversal somewhere, or no?

Judge Siniša Rodin: I would say it’s rather evolution than reversal. The other trend, which is quite visible, is that our judgments are getting longer and longer, and sometimes very difficult to read.

So we started to produce press releases, which are, let’s say, more legible. When I was a professor of EU law, I would assign my students reading and that would typically be two or three cases for one class, which would be hour and a half. And then we would discuss those three cases.

If I remember well, Keck and Mithouard, a very important case in the 80s had 18 paragraphs. Now this is barely thinkable.

Katerina Linos: So I used to assign Advocate General opinions because I thought Court opinions were too short. What accounts for the increasing length and are they more or less comprehensible?

Judge Siniša Rodin: I think there are multiple factors that contribute to this extension of the text.

One of those factors is that we want to respond to every argument of the parties. This requires some work and some space. The other one is that we have what we call the legal framework. The first part of the judgment is always a citation of EU law, national law, if necessary, international law.

There’s a certain form which is implicitly agreed upon and that gives the volume to our judgments. That’s one of the trends. Judgments are getting longer and more complicated and more detailed. Maybe computer technology also contributed to that. Now it’s, easier to type, to correct than it used to be when typewriters were used. Then something that occurred relatively recently is the anonymization of cases.

Katerina Linos: Is that GDPR?

Judge Siniša Rodin: That’s the reason, but not the only reason. Different Member States have different practices. So when the case comes anonymized from the referring court, of course we have to respect that. So we cannot de-anonymize the case which was anonymized.

But gradually this practice spread and nowadays we anonymize most of the cases, which creates certain difficulties. At least to me, you it becomes difficult to memorize the name of the case. Now we have a better model. We assign invented names, not actual names, to cases. But for a certain time, it was just the initials.

Katerina Linos: And now if it were a Croatian plaintiff, you would change the name to another Croatian name?

Judge Siniša Rodin: Yes. we would invent a name.

Katerina Linos: Can I ask about the anonymity? Because, for a case to reach the court of Justice, it’s not a, you know, a simple divorce case. It’s not a case where you really don’t know who the plaintiffs are. There’s all this lower-level jurisprudence and perhaps some press.

What’s your thinking for anonymization and also replacement of initials?

Judge Siniša Rodin: Situations are different. Sometimes we don’t even know who the real plaintiffs are. We can ask the Court if it’s necessary, but it’s not certain that the Court will give us that information because of the local rules. So it can happen, and it happened at least once that I remember that we didn’t know who the person was. And maybe it was not relevant for the case. That would be too strong a expression. But somehow, I felt a need to know more about the context of the whole case. But, well, law is law and the context is context. We decide cases based on law. We can survive this inconvenience. [Laughter] But sometimes indeed I feel a need to know more about who is litigating actually and then what the context of the whole litigation was.

Then – and I would say this is a systemic problem – the difference between generality and specificity of a case. This Court is supposed to speak for all 27 Member States when we give interpretation of EU law. This interpretation of EU law is valid across the Union, meaning in Sweden, or Croatia, or Italy, Hungary, everywhere. If what we say becomes too specific – for the specific case, for the specific situation – the question is how generally applicable our decision will be. If we narrow too much what we say, then obviously, it will not appeal to everyone equally. So this structural problem has to be addressed on a case-to-case basis. We need to always have in mind what we really want to say. Do we want to focus on a specific situation that we have at hand, or speak more generally for everyone? And you will find both kinds of cases. But that’s something that has gradually developed. When our judgments were shorter, they were more abstract, and more general, and more easily applicable everywhere.

Now, with the length, with precision, we need to be very careful whether we want to really narrow the case down or broaden it up. So that’s one of the changes when compared to, let’s say, 20 or 30 years ago.

Another phenomenon which has occurred – and it might be also related to what I’ve just said – our secondary legislation, meaning legislation adopted on the grounds of the Treaties, can be, among other types, regulations, and directives. So directives are addressed to the Member States and they have to implement them, and regulations are of general validity. They are like legislation in any State.

Directives not directly applicable unless, as our early case law says, they are clear, unconditional, and precise. Then they have what we call “direct effect,” which means that must be applied by national courts directly.

This tendency of having longer judgments, more precise judgments, more elaborate judgments, has also created certain rapprochement, or collapsing of the difference between regulations and directives. Because we interpret something in very precise terms, then directives become more similar to regulations. They, by virtue of our interpretation, become clear, unconditional and precise, and are more likely to have direct effect, at least for the courts that deal with this concrete issue.

Definitely on this constitutional level, the rule of law jurisprudence is a tremendous, tremendous development. This is something that maybe we wouldn’t even think of 20 years ago. But today, this is really an important part of our work.

I would say that Article 2 has, given us an opportunity to fine-tune European law in line with fundamental values of the EU. It’s not that we haven’t been doing that from the beginning. But now this has become more palpable, and I would say, more regular part of what we do.

Katerina Linos: Thank you so much. This has been so incredibly helpful.

Judge Siniša Rodin: Maybe just a final thought. For smaller European states – Croatia included, but not just Croatia, the old Baltic states, it’s old Central Europe – Luxembourg, after all – the European Union provides for a framework where their voice can be heard. Without the European Union, all these smaller States would actually be less sovereign than within the European Union.

Katerina Linos: So just to understand this, you’re saying Croatia is an actor on the world stage, can be part of trade negotiations, because Croatia has a voice through the European Union.

Judge Siniša Rodin: Within the European Union. It’s not just Croatia.

Katerina Linos: Everyone is small.

Judge Siniša Rodin: Everyone is small [laughter], except a few of the bigger ones.

But in this sense, the European Union provides for a meeting place of States that otherwise wouldn’t have had their voice. Or their voice would be much, much weaker. There has to be a balance. States need to feel that they are not just amalgamated in some bigger whole where they lose their identity. That’s why the Treaties provide explicitly for a national constitutional identity guarantee. And I think everybody appreciates that. It’s another way to balance State powers with, powers that we exercise, jointly on the level of the EU.

Katerina Linos: And can I ask you, someone who comes from the European periphery – so, I come from Greece, and the way I see the EU, just personally, is if there was going to be another dictatorship, if there was going to be a shift either to communism or to the far right, the EU is some kind of guarantor. It was really hard for any political party to say, “We’re leaving the Euro,” “We’re no to the EU,” even when the EU in recent history meant extensive austerity measures, even when the EU was very unpopular. The dream of being part of Europe is a guarantor of a lot of fundamental rights. Is it fair to say that for Hungarians, for Poles, for Croatians, for anyone who’s not the Brits, Brexit is out of the question? Because the EU means some kind of safeguard The world could be different. And to prevent against such a radical change, the EU is a citizen safeguard against a government that might be just radically different from the governments we have today.

Judge Siniša Rodin: Well, it’s difficult for me to say anything about how people feel in one Member State or another. But my personal experience as a professor, before coming to the Court was that through European Union, I was able to do things that were not possible for me without European Union.

I was able to create academic networks. I became able to organize seminars to which I would invite European professors and students and researchers. I’m speaking from a narrow professorial viewpoint, but generally speaking, this is possible everywhere where European funds are being allocated. Agriculture; rural development; urban projects. So European Union has brought a concrete change to the Member States. Of course, there will be people who possibly don’t like it, but that’s part of the national political process. I might be terribly wrong, but I cannot believe that anyone seriously wants to leave the EU.

Katerina Linos: No one does. The far right wants to change the EU. It seems that if you hear the Hungarian party, they say the EU has limited competences and this is a national competence. So they seem to speak the language and mean different things. As you said, you know, the heretics and the orthodox all interpret the text the same way, but they’re focused on the same texts it seems.

Judge Siniša Rodin: There is a lot of discussion, public discussion, about populism. And yes, populism is really a threat to liberal democracy. But I would say it is important to distinguish between populism and conservatism.

Conservatism acts within the system and does not seek to dismantle the system. Populism targets the system itself and seeks to dismantle constitutional liberal democracy as such. And that’s a very, very dangerous development. As political forces in the EU act within their constitutional boundaries, as defined by their national constitutions, as defined by the Treaties – this is a normal political process. I don’t think that there is a lot to complain about. I mean, we can be personally happy or unhappy with certain government or political setting, but this still happens within the constitutional boundaries. The danger is that some political movements, ideas, try to dismantle the constitutional order as such, including the values of Article 2.

So that’s the whole challenge.

Katerina Linos: And you see that in Hungary? Do you see it elsewhere?

Judge Siniša Rodin: I don’t see it as a localized phenomenon. I see it as an ideology which is present both in the United States and then in Europe, possibly elsewhere. And I think it’s dangerous.

Katerina Linos: We do have that worry in the U.S., very much.

Thank you very, very much. I am so grateful for your thoughts.

Katerina Linos: That wraps up our conversation with Judge Rodin. We covered substantial ground, from Croatia’s constitutional transformation during EU accession to the complexities of the European Citizens’ Initiative in cases like One of Us. I was particularly fascinated by Judge Rodin’s insights into the Court’s evolving practices, especially the recent trend towards case anonymization and the use of invented names. His observations about how anonymity requirements can sometimes leave the Court wanting to better understand case context highlights the practical challenges of balancing transparency with privacy in judicial proceedings.

If you found this discussion thought-provoking, please rate us, both for feedback and to encourage the algorithms to surface this content. Also, share and stay tuned for more Borderlines conversations with the leading voices in European and international law. Our thanks as always to our producer, Toni Mendicino, our sound engineer, Keith Hernandez, and to the staff of the Court of Justice for making our CJEU profiles series possible.