Borderlines CJEU Episode #18: European Union Court of Justice Series
Interview with President Marc van der Woude
Show Notes
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 #18 of the Borderlines CJEU Series features President Marc van der Woude of the General Court of the European Union in conversation with Professor Linos and Professor Pollack.
Since 2019, Marc van der Woude has served as President of the General Court of the European Union—the lower of the two courts that make up the CJEU and the court principally responsible for reviewing the legality of acts adopted by EU institutions, bodies, offices, and agencies.. Drawing on a career that spans the College of Europe, the Commission’s Directorate-General for Competition, a secondment as legal secretary at the Court of Justice, and nearly fifteen years at the Brussels Bar, President van der Woude reflects on the rise of EU competition law as a global regulatory model and on the General Court’s role at the center of European administrative justice.
A recurring theme is the “osmosis” between US antitrust and EU competition law, and the way EU law has emerged as the dominant global regulatory model—what Anu Bradford has called the “Brussels Effect”—through its administrative-enforcement architecture and its willingness to act against dominant firms. President van der Woude traces this story from the foundational competition cases of the 1970s and 1980s through the creation of EU merger control to today’s landmark disputes.
President van der Woude also offers a deep look at the General Court’s function as the “administrative review court” for the EU institutions, and at its immense and technical workload—from trademark disputes and banking supervision to State aid, sanctions, and health-crisis authorizations. Central to the conversation is the ongoing structural reform of the CJEU, including the transfer of certain preliminary-reference jurisdiction to the General Court in specific technical areas. Major cases discussed include the Apple/Ireland State aid case, the CK Hutchison and Illumina/Grail mergers, the Towercast judgment, and early DMA and DSA litigation such as the ByteDance (TikTok) case. He closes with personal reflections on rule-of-law tensions, the expansion of European law, and the future of the European project.
Born in the Netherlands, President van der Woude obtained his law degree from the University of Groningen (1983) and a postgraduate degree from the College of Europe in Bruges (1984). He lectured at Leiden University before joining the Commission’s Directorate-General for Competition (1987–1989) and serving as legal secretary (référendaire) at the Court of Justice (1989–1992). After a period in the Commission’s Legal Service, he practiced competition and energy law at the Brussels Bar for nearly fifteen years and held a chair as Professor of Law at Erasmus University Rotterdam. He has served as a Judge of the General Court since 2010 and as its President since 2019. Selected highlights from his career:
- Law degree, University of Groningen (1983); postgraduate degree, College of Europe, Bruges (1984).
- Lecturer, Leiden University; later Professor of Law, Erasmus University Rotterdam.
- Administrator, Directorate-General for Competition, European Commission (1987–1989).
- Legal secretary (référendaire) at the Court of Justice of the European Union (1989–1992).
- Member of the Commission’s Legal Service; thereafter Member of the Brussels Bar, practicing competition and energy law (from 1995, for nearly fifteen years).
- Judge at the General Court of the European Union (since 13 September 2010); President of Chamber (September 2013); Vice-President (September 2016).
- President of the General Court of the European Union (since 27 September 2019; re-elected September 2022 and September 2025).
Cases and sources mentioned in the podcast:
Note: The CJEU Court of First Instance, created in 1989, was renamed the General Court by the Treaty of Lisbon on December 1, 2009.
Biographies of CJEU Judges and Professors Christiaan Timmermans and René Joliet.
Sherman Antitrust Act, Section 2 (United States, 1890) — referenced as the U.S. parallel to monopolizing trade legislation.
Professor Valentine Korah’s life and legacy, University College London commemoration.
Professor Emerita Eleanor M. Fox, NYU faculty profile.
Bradford, Anu, Chilton, Adam, Linos, Katerina and Weaver, Alexander, The Global Dominance of European Competition Law Over American Antitrust Law (2019). Journal of Empirical Legal Studies, 16: 731-766.
Bradford, Anu, Chilton, Adam and Linos, Katerina, The Limits and Promise of Global Antitrust Law (April 23, 2025). Harvard International Law Journal, Volume 66, No. 2, Pp. 431-508; University of Chicago Law School, Coase-Sandor Institute for Law & Economics Research Paper 25-27 and Public Law & Legal Theory Research Paper 25-30.
Lina Khan, chair of the Federal Trade Commission (FTC), 2021–2025.
Professor Robert Bowie, Harvard tribute page.
Treaty of Paris, 1951: Established the European Coal and Steel Community — origin of the early competition (“no trusts”) provisions discussed.
Treaty of Rome, 1957: Established internal market.
Freiburg school of economic thought.
Academic Society for Competition Law (ASCOLA).
CJEU Judge and Professor Thijmen Koopmans, Leiden tribute page and works published
Judgment of the Court, 19 May 1993: Case C-320/91, Corbeau case (services of general economic interest and the limits of monopoly rights).
Judgment of the Court of 9 July 1969, Case 10-69, Portelange v Smith Corona Marchant International and others case (provisional validity).
Council Regulation (EC) No 1/2003 on the implementation of the competition rules (2003) — the major procedural reform decentralizing antitrust enforcement.
Regulation (EU) 2022/1925 on contestable and fair markets in the digital sector (Digital Markets Act — DMA).
Regulation (EU) 2022/2065 on a single market for digital services (Digital Services Act — DSA).
Professor Piet Jan Slot, Leiden faculty page.
Professor Henk Wouter de Jong, tribute pages in English and Dutch.
Professor Aurelio Pappalardo, Liège legacy page.
Directorate-General for Competition, European Union Commission.
Peter Sutherland, Commissioner for Competition.
Jacques Delors, President of the European Commission, 1985–1995.
Delors Commission (European integration and the internal market).
Lord Cockfield, Commissioner for Internal Market, Tax Law and Customs and a vice-president of the first Delors Commission; White Paper (June 14, 1985), Completing the Internal Market.
Single European Act, signed in 1986 and entered into force July 1, 1987.
History of the Court of Justice and creation of the Court of First Instance, now General Court.
Further biography of Professor Christiaan Timmermans.
Thirty years of the European single market, European Parliament briefing, January 17, 2023.
Professor Claus-Dieter Ehlermann tribute page.
European Commission Legal Service homepage.
Professor Helmuth Schröter biography page.
Birds Directive and Natura 2000, European Commission homepages.
President Koen Lenaerts, Court of Justice biography; also see Borderlines CJEU profile #2.
L’École Nationale de la Magistrature / National School for the Judiciary (France).
About the General Court, CJEU website.
European Central Bank website.
Single Resolution Board website.
European Medicines Agency website.
U.S. Court of Appeals for the District of Columbia Circuit website.
Regulation (EU, Euratom) 2024/2019 — the 2024 reform transferring certain preliminary-reference jurisdiction to the General Court (in force 1 October 2024).
Article 267 of the Treaty on the Functioning of the European Union (TFEU) — the preliminary-reference procedure.
A View from the General Court. The Reform for the Transfer of Competence for Preliminary Rulings to the General Court: Issues Concerning Its Implementation, article by Judge Ornella Porchia, European Papers, July 23, 2025.
The Advocates General at the General Court, article by Advocate General Tamara Ćapeta, European Papers, December 17, 2025. Also see Borderlines CJEU profiles interview #5 (January 21, 2025).
Bundesfinanzhof / Federal Fiscal Court, one of five federal supreme courts of Germany.
Austrian court system overview.
Proposal for Preliminary Rulings in Customs Matters to be Handled by Lower EU General Court, Blog article, Global Compliance News (Baker McKenzie), January 27, 2023.
2026 Round-table Seminar on VAT (value added tax) at the Court of Justice.
Treaty of Nice (2001) — expanded the General Court’s general review jurisdiction. See also About Parliament article.
Regulation (EU, Euratom) 2015/2422 amending Protocol No 3 on the Statute of the Court of Justice — the 2015 reform doubling the number of General Court judges (completed July 2022).
The Unbearable Lightness of Being, novel by Milan Kundera (1984).
U.S. Supreme Court Justice Samuel Alito and neighbor dispute over flags, The Wisconsin Independent, May 30, 2024.
CJEU Media Centre News, Web-TV, Press Services and Press Team websites. See also
CJEU Transparency, Annual Report and Other Publications and Reports. Further information is available on the Court’s website: https://curia.europa.eu/
The Man Who Overruled Vestager, Politico, November 30, 2020.
Margrethe Vestager, Executive Vice President of the European Commission for A Europe Fit for the Digital Age (2019-2024) and European Commissioner for Competition (2014-2024). See also Borderlines podcast episode #5, Digital Markets Act (April 21, 2022).
Links to Cases T-778/16 and T-892/16, Ireland v Commission and Apple Sales International and Apple Operations Europe v Commission (the Apple/Ireland State aid case), and the judgment on appeal in Case C-465/20 P, Commission v Ireland and Others:
General Court press release on the judgment (No. 90/20) (PDF):
https://curia.europa.eu/site/upload/docs/application/pdf/2020-07/cp200090en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Court of Justice press release on the judgment on appeal, setting aside the General Court and confirming the Commission’s decision (No. 133/24) (PDF):
https://curia.europa.eu/site/upload/docs/application/pdf/2024-09/cp240133en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Court of Justice press release on the Opinion of Advocate General Giovanni Pitruzzella (No. 171/23) (PDF):
https://curia.europa.eu/site/upload/docs/application/pdf/2023-11/cp230171en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Opinion of Advocate General Giovanni Pitruzzella
Links to Case T-399/16, CK Telecoms UK Investments v Commission (Three/O2 UK merger prohibition annulled by the General Court), and the judgment on appeal in Case C-376/20 P, Commission v CK Telecoms UK Investments:
General Court press release on the judgment (No. 65/20) (PDF):
https://curia.europa.eu/site/upload/docs/application/pdf/2020-05/cp200065en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Court of Justice press release on the judgment on appeal, setting aside the General Court and referring the case back (No. 120/23) (PDF):
https://curia.europa.eu/site/upload/docs/application/pdf/2023-07/cp230120en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Court of Justice press release on the Opinion of Advocate General Juliane Kokott (No. 170/22)
Opinion of Advocate General Juliane Kokott
Organisation for Economic Co-operation and Development (OECD) website.
Links to Case 6/72, Europemballage Corporation and Continental Can Company v Commission (early use of Article 86 EEC, now Article 102 TFEU, against an acquisition as an abuse of a dominant position):
Judgment
Opinion of Advocate General Karl Roemer
Links to Joined Cases 142/84 and 156/84, British-American Tobacco Company and R. J. Reynolds Industries v Commission (“Philip Morris”; use of the old Article 85 EEC, now Article 101 TFEU, against a minority shareholding — part of the pressure that led to EU merger control):
Judgment
Opinion of Advocate General Federico Mancini
OECD/G20 Global Minimum Tax (Pillar Two) — referenced as the broader policy backdrop to the tax-ruling cases.
Council Regulation (EEC) No. 4064/89 on the control of concentrations between undertakings (the first EU Merger Regulation, 1989).
Pernod Ricard v. F.I.I. (Fyffes) Plc., Irish Supreme Court case judgment 1988 WJSC-SC 2889.
Sara Lee company history including EU mergers and acquisitions.
Energy policy history and regulation in the European Union.
Links to Cases C-363/01, Flughafen Hannover-Langenhagen GmbH v Deutsche Lufthansa AG and C-160/19 P, Comune di Milano v European Commission (airport regulation):
Frankfurt Airport: Judgment and Opinion of Advocate General J. Mischo
Milan Airport: Judgment and Opinion of Advocate General Juliane Kokott
Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at Community airports.
U.S. Treasury press release on non-applicability of OECD Pillar Two to U.S. Multinationals (January 5, 2026).
Links to Case T-227/21, Illumina v Commission (Illumina/Grail; Article 22 referral upheld by the General Court), and the judgment on appeal in Joined Cases C-611/22 P and C-625/22 P, Illumina and Grail v Commission:
General Court press release on the judgment (No. 123/22) (PDF):
https://curia.europa.eu/site/upload/docs/application/pdf/2022-07/cp220123en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Court of Justice press release on the judgment on appeal, setting aside the General Court and annulling the Commission’s referral decisions (No. 127/24) (PDF):
https://curia.europa.eu/site/upload/docs/application/pdf/2024-09/cp240127en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Court of Justice press release on the Opinion of Advocate General Emiliou (No. 56/24) (PDF):
https://curia.europa.eu/site/upload/docs/application/pdf/2024-03/cp240056en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Opinion of Advocate General Nicholas Emiliou
Links to Cases T-5/02 and T-80/02, Tetra Laval v Commission (Court of First Instance annulment), and the judgment on appeal in Joined Cases C-12/03 P and C-13/03 P, Commission v Tetra Laval:
Court of First Instance press release on the judgments (No. 87/02)
Court of First Instance judgment, Case T-5/02
Court of Justice press release on the judgments on appeal, dismissing the appeals (No. 11/05) (PDF):
https://curia.europa.eu/site/upload/docs/application/pdf/2009-02/cp050011en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Court of Justice judgment, Case C-12/03 P
Court of Justice press release on the Opinion of Advocate General Antonio Tizzano (No. 42/04) (PDF):
https://curia.europa.eu/site/upload/docs/application/pdf/2009-02/cp040042en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Opinion of Advocate General Antonio Tizzano
Links to Cases T-310/01 and T-77/02, Schneider Electric v Commission (Court of First Instance annulment) and Court of Justice Case C-440/07 P:
Court of First Instance press release on the judgments (No. 84/02)
Court of First Instance judgment, Case T-310/01
Court of First Instance judgment, Case T-77/02
Case C-440/07 P, Commission of the European Communities v Schneider Electric SA
Judgment
Opinion of Advocate General Ruiz-Jarabo Colomer
Competition and Markets Authority (CMA), United Kingdom regulatory body.
Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (the EC Merger Regulation; see in particular Article 22, the “Dutch Clause”)
Link to Case T-289, Brasserie Nationale and Munhowen v Commission (Article 22 referral on whether Commission can accept a Member State [Luxembourg]’s referral request in absence of Member State’s own merger control rules):
General Court press release on the judgment (No. 80/25)
Links to Case C-449/21, Towercast (ex post review of a below-threshold concentration under Article 102 TFEU):
Court of Justice press release on the judgment (No. 46/23) (PDF):
https://curia.europa.eu/site/upload/docs/application/pdf/2023-03/cp230046en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Court of Justice press release on the Opinion of Advocate General Juliane Kokott (No 168/22) (PDF):
https://curia.europa.eu/site/upload/docs/application/pdf/2022-10/cp220168en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Opinion of Advocate General Juliane Kokott
Regulation (EU) 2016/679 — General Data Protection Regulation (GDPR)
Bradford, Anu, The Brussels Effect: How the European Union Rules the World (Oxford University Press, 2020) — referenced on the global influence of EU competition and data-protection law:
Links to Case C-362/14, Maximillian Schrems v Data Protection Commissioner (“Schrems I”) and Case C-311/18, Data Protection Commissioner v Facebook Ireland and Maximillian Schrems (“Schrems II”):
Court of Justice press release on the judgment in Schrems I (No. 117/15) (PDF):
https://curia.europa.eu/site/upload/docs/application/pdf/2015-10/cp150117en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Court of Justice press release on the Opinion of Advocate General Yves Bot in Schrems I (No. 106/15):
https://curia.europa.eu/site/upload/docs/application/pdf/2015-09/cp150106en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Court of Justice press release on the judgment in Schrems II (No. 91/20) (PDF):
https://curia.europa.eu/jcms/upload/docs/application/pdf/2020-07/cp200091en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Court of Justice press release on the Opinion of Advocate General Henrik Saugmandsgaard Øe in Schrems II (No. 165/19):
https://curia.europa.eu/site/upload/docs/application/pdf/2019-12/cp190165en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Link to Case T-738/16, La Quadrature du Net and Others v Commission (privacy shield NGO challenge by French digital rights advocacy groups):
Order of the General Court declaring invalidity of the contested measure and no need to adjudicate.
Regulation (EU) 2024/1689 — AI Act (harmonized rules on artificial intelligence)
Link to Case T-367/23 R, Amazon Services Europe Sàrl v Commission (application by Amazon seeking to block compliance duties from Commission’s designation of Amazon as a Very Large Online Platform [VLOP]):
Order of the President of the General Court on request for interim relief measures; see below for final judgement.
Links to Case T-1077/23, Bytedance v Commission (TikTok/ByteDance gatekeeper designation under the DMA upheld by the General Court, 17 July 2024):
General Court press release on the judgment (No. 114/24) (PDF):
https://curia.europa.eu/site/upload/docs/application/pdf/2024-07/cp240114en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Appeal pending before ECJ as of publication in Case C-627/24 P Bytedance v Commission (video link to press briefing)
Note: Since this interview with President van der Woude was conducted, the General Court has ruled on three formerly-pending cases related to the DSA as of publication:
Zalando Designation Challenge (Case T-348/23): Decided on September 3, 2025, the General Court dismissed Zalando’s challenge against its VLOP designation.
General Court press release on the judgment (No. 105/25) (PDF):
https://curia.europa.eu/site/upload/docs/application/pdf/2025-09/cp250105en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Meta and TikTok Fee Challenges (Cases T-55/24 and T-58/24): Decided on September 10, 2025, the General Court ruled on actions regarding annual supervisory fee calculations.
General Court press release on the judgment (No. 114/25) (PDF):
https://curia.europa.eu/site/upload/docs/application/pdf/2025-09/cp250114en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Amazon Designation Challenge (Case T-367/23): Decided on November 19, 2025, the General Court dismissed Amazon’s action seeking the annulment of its VLOP designation.
General Court press release on the judgment (No. 144/25) (PDF):
https://curia.europa.eu/site/upload/docs/application/pdf/2025-11/cp250144en.pdf:
(Accessible HTML version: to be added after PDF remediation.)
Vice President Lars Bay Larsen, Court of Justice biography; see Borderlines CJEU profile #4.
Regulation (EC) No. 40/94 of December 20, 1993 on the Community trade mark (no longer in force); see also amended consolidated version: Regulation (EU) 2023/2411.
Regulation (EC) 1907/2006 — REACH (registration, evaluation, authorization and restriction of chemicals).
Dutch Council for the Judiciary website.
German Federal Constitutional Court (Bundesverfassungsgericht), judgment of 5 May 2020 on the ECB’s Public Sector Purchase Programme (PSPP) — the “ultra vires” ruling President van der Woude criticized in a personal capacity (see Politico article, June 5, 2020).
Press release on the judgment (No. 32/2020)
Judgment (official English version)
Article 2 of the Treaty on European Union (TEU) — the values of the Union. See also Article 19, Provisions on the Institutions.
Linos, Katerina and Kempf, Elena, Shaming the Court: How the German Constitutional Court Reversed Itself to Greenlight EU Fiscal Federalism (May 16, 2024).
NextGenerationEU program — temporary Recovery and Resilience Facility (RRF) instrument to support Europe’s economic recovery from the coronavirus pandemic.
Andreas Voßkuhle, President of the Federal Constitutional Court of Germany, 2010–2020.
Link to Case C-448/23, Commission v Poland (ultra vires review of the case-law of the Court and primacy of EU law):
Court of Justice press release on the judgment (No. 157/25) (PDF):
https://curia.europa.eu/site/upload/docs/application/pdf/2025-12/cp250157en.pdf
(Accessible HTML version: to be added after PDF remediation.)
Link to Case C-123/22, European Commission v. Hungary (obligation of a Member State to fulfill asylum policy responsibilities and unity of EU law):
Court of Justice press release on the judgment (No. 99/24) (PDF):
https://curia.europa.eu/site/upload/docs/application/pdf/2024-06/cp240099en.pdf
(Accessible HTML version: to be added after PDF remediation.)
United States Supreme Court website.
United Kingdom Supreme Court website.
Belgian Constitutional Court website.
Select Publications and Speeches by President van der Woude for further research:
- EU Competition Law Handbook (Christopher Jones and Marc van der Woude), Sweet & Maxwell — the long-running annual digest of EU competition case law.
- Articles in Revue Concurrences and elsewhere, collected on Concurrences author page (including “The Metamorphosis of Competition Law”).
- “The Authority of the Law: Some Personal Reflections on the Internal Market and European Integration,” Marc van der Woude, Part IV, Chapter 1 in The Authority Of EU Law: Do We Still Believe In It? Wolfgang Heusel and Jean-Philippe Rageade, eds. (Springer-Verlag GmbH, Germany 2019), pp 137–148.
- ERA Talks #7 — Marc van der Woude, President of the General Court of the EU (Academy of European Law; video, English) — on the General Court’s 2019 and 2024 reforms and the impact of digitalization and AI. See also the ERA episode page.
- “A conversation with Marc van der Woude, President of the General Court” (EU Law Live podcast).
- “Inside the EU’s General Court” (Court of Justice of the Europea Union video, January 12, 2026)
- See President van der Woude’s faculty page at Erasmus University Rotterdam for numerous additional publications and media resources.
Citation
Linos, Katerina and Pollack, Mark. Episode #18: Interview with President Marc van der Woude. Borderlines podcast, European Union Court of Justice Series (September 11, 2026). https://www.law.berkeley.edu/podcast-episode/court-of-justice-of-the-european-union-series-interview-with-president-marc-van-der-woude/
Berkeley Law’s Borderlines features exclusive content with the world’s leading international-law experts. Explore other episodes in the CJEU series — including conversations with President Koen Lenaerts, Advocate General Juliane Kokott, and Judge Niilo Jääskinen — and be sure to subscribe so you don’t miss an episode. Please rate Borderlines on Apple Podcasts, Spotify, or your favorite app, which can help others find useful resources. Thanks for listening!
Episode Transcript
President Marc van der Woude Interview
[00:00:00]
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.
Mark Pollack: In today’s episode, we’ll hear Katerina’s and my interview with Marc van der Woude, the President of the General Court of the EU, which serves as the lower or administrative court below the Court of Justice in the Union’s two-tier judicial system.
President van der Woude’s career has spanned academia, public service, private practice, and the [00:01:00] judiciary. After studying at the University of Groningen and the College of Europe, he taught at Leiden University, served in the European Commission’s competition directorate and later in its Legal Service, worked as a legal secretary at the Court of Justice, practiced competition and energy law at the Brussels Bar, and held a chair at Erasmus University Rotterdam. He joined the General Court as a judge in 2010 and was first elected its president in 2019.
In our conversation, recorded in December 2024, we discuss his path into EU law and competition law, the General Court’s role in reviewing the actions of EU institutions, its relationship with the Court of Justice, and its new jurisdiction over certain preliminary references from national courts.
Mark Pollack: President van der Woude, welcome to Borderlines. You have, as our listeners have just heard, had a remarkable and varied career across [00:02:00] multiple institutions. So we would be remiss not to ask you about some of those experiences before coming to your role as Judge and President of the General Court. We hope you can take some time to explain and demystify, for some of our listeners who may not be familiar with the two-tier structure of the CJEU legal system, how the General Court works.
Let’s start with a bit of background. You took your first law degree at the University of Groningen in 1983, before traveling to the College of Europe to receive a second degree in European law there in 1984. One question we like to ask judges is how they made their way to European law, and in your case, to Bruges to the College of Europe, which seems to have been, we have learned, a fertile breeding ground for the study of European law and for future European court judges. Can you begin to tell us about your personal path to EU law?
President van der Woude: As always, it’s [00:03:00] coincidence [laughter]. First, it’s the subject matter which is interesting. European law is about economics. It’s a political project. It’s a peace project. It’s much wider than the law alone. It’s also a melting pot of different types of law. It’s something where you explore things. It’s not something which has been decided yet. So, it’s a unique part of law. I think that’s the first reason.
The second reason is my professor, Christiaan Timmermans, who has been a judge at the Court of Justice—he happened to be my professor of European law and he’s a great teacher. He made me, in particular, enthusiastic about EU law. Also—a particular teaching style, which was focused on cases, questions, and made this unachieved idea of the law surface in his courses. It was not something where you have “yes” and “no” answers. It’s more a type [00:04:00] of reasoning. So, that I liked very much.
And then, I started to look for a master’s degree or something else in EU law or economic law. I went to a room where they had all sorts of flyers. You didn’t have internet pages at the time. Then I saw this brochure of Bruges. I said, “That looks nice, and they have a nice residence.” And I didn’t know anything about it. So, I applied and I ended up in Bruges. That’s why I was first a student, and I stayed on as an assistant, which is a kind of tutor, because the College of Europe is a system where you have visiting professors and the tutors are basically the link between the students and the visiting professors. So, that’s how I ended up in EU law and ever since I stayed in that area of the law.
Mark Pollack: It’s interesting that you mentioned he taught through cases. Was that unusual [00:05:00] in Dutch legal education at the time?
President van der Woude: No, but he did it in a particular way. He had a very developed syllabus with the reading materials, the cases, and then there were open questions. There was debate, also, amongst the students. He did it in a very gentle, intelligent way. And I like that type of debate about how the law should evolve. Of course, it already existed. You had principles; how do you apply the principles in a particular case? That I liked very much, this practice-focused aspect of his teachings.
Mark Pollack: So, as a young scholar and later as a practitioner, you’ve made competition law—or what Americans know as antitrust law—your particular area of expertise, and in a similar fashion to what you just did, I wonder if you can tell us what led you to your concentration in this area of [00:06:00] law. Then for our American listeners, tell us about how European competition law is like, and unlike, American antitrust law.
President van der Woude: To start with the last question, U.S. law is antitrust law. It’s against the big trusts of the end of the 19th century, beginning of the 20th century. That was the focus.
The Europeans approach competition law or antitrust law differently. They approached, at least at the time, through the lens of the internal market. The idea was that if you create an open space for goods, services and persons and you erase all public barriers to trade, there should be no private barriers to trade. So, the industry had to play the game and to export goods and to compete in a wider area. The focus was, in the beginning at least, an internal market focus.
That’s something, by the way, the antitrust community tends to [00:07:00] forget. But ever since this antitrust law has developed into an area of law on its own—and it interacts, for example, with the U.S. antitrust lawyers, the Asian antitrust lawyers—it has become a world community. And sometimes, of course, discord has to remind the people, “Oh! The origin of the system is the Treaties and the internal market.” And the internal market is linked to the objectives of the Treaty, in a wider sense of the integration between the Member States. So, that as an introductory comment.
Now during my stay in Bruges, I had, again, the privilege of having exceptional professors. One of them was René Joliet. He became a judge here at the Court of Justice. He made me enthusiastic again about that area of the law because it’s even more economic than [00:08:00] European law. It’s very difficult. You have a few sets of rules. For example, for American lawyers: Section 2 of the Sherman Act. It’s just one provision, but it applies to a variety of industries, to many factual settings. So, it’s also mastering the facts, playing with what the industry wants. It’s this multidisciplinary nature of antitrust law which appealed to me. And then again apart from Joliet, I met Valentine Korah. She was my tutor and we became friends. By the way, we had a commemoration event at University College London, where the whole antitrust community was gathered, including Eleanor Fox, with whom she had a very close relationship.
It’s again that route, the area of the law and the person that promotes you in that direction. I owe to Valentine, I [00:09:00] would say, the beginning of my professional career. She put me on the rails which propelled me to the legal profession I exercised for almost 40 years now.
Katerina Linos: We’ll put something in the show notes about the influence of European antitrust law. Anu Bradford, Adam Chilton, and I have a series of papers on the fact that even though U.S. antitrust law develops earlier in the ‘20s and ‘30s, EU antitrust law is the model today for jurisdictions all over the world and “the only game in town,” as people in Silicon Valley call it. Our enforcement apparatus has changed under Lina Khan—
Mark Pollack: Mm-hmm.
Katerina Linos: But still—
President van der Woude: Of course it was a judicial type of enforcement system in the United States. Whereas, it had a strong administrative focus in the EU, which Lina Khan copied with the FTC [Federal Trade Commission]. There again, it’s interesting to see this osmosis between the two systems. There was an [00:10:00] American professor [Robert Bowie] involved in the drafting of the initial competition rules, because the idea there was in the Coal and Steel Treaty—not the internal market Treaty of ‘57—no trusts. Because we had had, of course, the big German trust, but also the French trust. And there was also this idea that there should be no spillover from the economic power into the public sphere. You had, of course, the Freiburger Schule [Freiburg school of thought], which had this very strong antitrust focus as well. So, you see this osmosis in the beginning, and then you see the European model bringing back ideas which the Americans take up.
And now it has developed into this world community, which is something fascinating. Because when you are an antitrust lawyer, whether you are in Hong Kong, Sydney, or Brasilia, you speak the same language, you [00:11:00] use the same concepts, you understand what the other ones are doing or trying to achieve. Sometimes the objectives are different, but you speak the same language. And that’s something you rarely see in areas of law.
Katerina Linos: I was at the ASCOLA [Academic Society for Competition Law] conference and somebody from Saudi Arabia came and said, “We love everything about the European model and we’re going to model our agency on Europe.” I’m like, “Why is that?” And he said, “Oh, they’re so powerful in Europe. And that’s exactly what we want. We want the centralized—”
President van der Woude: It has not always been centralized. It started with a very centralizing system where all agreements had to be notified to the European Commission. Everything basically was prohibited unless explicitly authorized by exemption decisions or exemption regulations, which then were straightjackets in which you had to squeeze your agreements. However, the courts reacted to that during the [00:12:00] 1960s, saying, “This straightjacket justice system cannot really work because our contracts—if they’re not explicitly exempted—are null and void. So how do we manage this?” And you see already in the early phases of the case law, the courts taking a more economic approach, saying that “The prohibition doesn’t apply—because of this and this, because it’s de minimis, it’s not sufficiently important, or you have to have a market assessment before saying that an agreement is good.”
The economic approach is also fostered by the case law of the Court of Justice. And that developed throughout the 1970s and ‘80s, to the extent that some Judges here, particularly the Judge for whom I worked, said at a certain moment, “Who is playing the game here? Is it the Court or is it the Commission? Who has the lead?” Judge Koopmans [00:13:00] wrote an article in a Dutch-speaking legal review, saying, “The place of competition or antitrust law in the Treaty basically says, ‘Now you, Commission—you should do something now.’ [Laughter] We opened up the airline sector. We opened up the banking sector. We have opened up the telecommunication sector by the application of the rules of the Treaty in cases which surfaced before national courts. And then we helped the national courts in interpreting the law and de-blocking the situation before the Court. ‘Now, the Commission, you should follow.’”
And—it followed. There were eight cases, for example—the opening up of the telecommunication sector cases involving— probably you know the case, Corbeau, the man driving around and bringing the mail on his little motorcycle and breaking the monopoly of the Belgian Post. So, it’s interesting to see how steady facts like that lead to [00:14:00] large consequences, and then the Commission follows with legislation and regulation. We say we have a centralized model. It’s true, but it’s also this interaction between the administration and the courts, which make it very lively.
And in fact, the first preliminary reference question ever put to the Court of Justice under the Rome Treaty was a competition law question about the validity of a contract, which had been notified to the Commission, but they didn’t really know yet what the Commission thought about it. So, they developed a strange concept, which now nobody knows about, called provisional validity. If it had been notified to the Commission, but there was not a decision yet, that would be considered to be provisionally valid. For how long, and things like that, of course, were all the follow-on questions, which followed in later cases of the 1960s. This [00:15:00] interaction would’ve been, by the way, very interesting for people with a historic view.
Katerina Linos: Today the interaction between the Commission, the General Court, the Court of Justice is so fascinating and it’s hard to remember that yes, back in the ‘70s, we didn’t have secondary legislation. The Court was pushing the Commission, rather than having a very active—
President van der Woude: It starts with the Commission taking things; the courts react to make, say, legal practice possible. And that leads to a string of case law, and then you suddenly see the Commission taking that on board to a more economic approach and to the reform of the main procedural regulation, in 2000s—Regulation 1/2003, which entered into force in 2004. It is the interaction between the two which is interesting. And we might see something similar with the DMA [Digital Markets Act] and DSA [Digital Services Act].
Katerina Linos: We will come back to that. Before we get to the DMA and the DSA, you have worked in so many [00:16:00] different capacities. You’ve worked in private practice, you’ve worked for the [Commission] Legal Service. You’ve worked at the General Court as a judge for quite some time. Can you tell us about these experiences? It was so wonderful for our listeners, many of whom are students, to hear about how you got into the field. But then as you advanced, what are some key opportunities, some windows that opened for you to make these moves and some key takeaways about seeing the field from different lenses?
President van der Woude: It’s always a coincidence. I could return the question, “Why did you become professors? Why did you end up . . .?” [Laughter] It’s just because you happen to be somewhere at a certain period in time.
I did the College of Europe, and then of course the question was, “Okay, you have to do this competition to become an official.” And there happened to be one. So, I participated. I didn’t have much hope that it would work because you have [00:17:00] thousands of applicants. It was just basically a tombola, whether you will get it or not.
I chose first an academic career as a tutor, and then I moved to Leiden University to work together with Professor Slot whom I happened to meet at the reception. He said, “Yes, I’m looking for somebody.” I said, “I’m looking for a job.” And then it was solved.
Of course, that’s all another era. There were not many competition lawyers around and people who were interested in this field. You had perhaps 10 or 20 of them. For example, when I went to Leiden University, we had what we called the Cartel Group. Of course, that sounds very secretive. And it was a bit, in that sense, because we would meet in an old medieval tower. All gentleman, by the way, no women; we’re speaking now of the early [00:18:00] ‘80s. You had the heads of the legal department of the big companies; at that time, you had Unilever, Philips and, Shell. And you had few academics, Henk de Jong, who was a more industrial organization professor, somebody from the Ministry and perhaps three, four lawyers. And I was the secretary of that group. And that was it. That was the whole group. You would have some, perhaps, in the Netherlands at that time, I would say 20 people. If you now have, for example, the Association of Competition Lawyers—it’s hundreds of people.
So, I happened to be there at the right time: I met this professor, I found this strange individual who happens to do what we call competition law. I need him, so I went to the university, that’s how I ended up there. Then I passed this competition, or concours as they call it, [00:19:00] and I called again on my old professor. One of the old professors was Aurelio Pappalardo, who had replaced René Joliet when he went to the Court of Justice. Pappalardo was a director in DG Comp, or DG IV, which was the Director-General in the European administration in charge of competition rules. And I remember, I went to his office—he was a director, and I said, “What should I do? I can become a lawyer,” because in the meantime, I had received an offer to go to private practice, “or I can join DG Competition.” And he said, “Join us! You can always become a lawyer afterwards.” And in fact, that was true because when I arrived, Aurelio stayed for another month or two and then he went to private practice. [Laughter] That’s how I ended up in DG Competition.
[00:20:00] That was a great time, again, with the coincidence that there was a formidable Competition Commissioner called Peter Sutherland, and we really boosted competition. It’s also the time of the internal market project, Commission Delors, Lord Cockfield with the white paper on the internal market. Should there be merger control? Should there not be merger control? Europe was in a completely different mindset at that time as it is nowadays. We came out of a phase of sclerosis which had characterized the project until Jacques Delors took over with his team. And he boosted it with the European Single Act and the implementation of the white paper on the internal market, the adoption of the merger control regulation and the creation of the General Court, which was called, at that time, the Court of [00:21:00] First Instance.
Having been in Leiden and having had a contact with Professor Timmermans, they were looking for a young law clerk at the Court of Justice and said, “Do you know somebody who knows something about this obscure area of the law, which is called Antitrust Law?” “Yes, there happens to be one.” And again, it was me. So, I ended up here on secondment from the European Commission to the Court of Justice.
And that was, again, a great period; great cases. There was no case law at the moment. You had to invent it. You had to construe it in a positive mood. In that sense, it was the internal market project and all culminated in this date of 1992. I remember on the Commission building you had a big calendar with a [00:22:00] countdown to the 1st of January 1993. It was a phase of optimism.
And during that period, I was here at the Court of Justice. Then went back, because I was seconded to DG Competition. Well, I was lucky again. You have to be lucky in life. I think Napoleon said that about his generals [laughter]. I don’t pretend to have become a Napoleonic general, but at least I’m lucky. And I ended up with Claus-Dieter Ehlermann, who had been a brilliant academic and writer. I had the privilege of working also with Helmuth Schröter—the typical German EU officials, which were idealists, very strongly committed to the European cause.
But again, it was time to do something else. And then Christiaan Timmermans, again, [00:23:00] who had become in the meantime the Deputy Director-General of the Commission’s Legal Service called me to go to the Legal Service, which I did, and ended up in the environmental team. And I have the privilege to say that for a few years I was one of the world’s specialists on the [Wild] Birds Directive [laughter]. There were not many of them. So, the period of the environmental law or environmental impact assessment, nature protection, the creation of the Natura 2000’s network of habitats and special protection zones—that again was a fascinating moment.
Having pleaded one of the cases here in front of the Court of Justice in my capacity as member of the Legal Service, I pleaded in [00:24:00] front of a judge called Koen Lenaerts [laughter]. Apparently I did it well, because the other party, I got a phone call from them, and they said, “Do you want to join our law firm?” I said, “Why would I do that? I’m the Commission’s Legal Service. I have an interesting practice.” And then, just like that, I said, “But I could change my mind if you make me a partner.” I think that’s a positive way to say “no” [laughter].
But then they said, “Yes.” We made some kind of arrangement, and I joined the Brussels Bar. And stayed there, again in an area where new markets developed, in particular the energy sector. I ended up doing a lot of energy law, the application of competition rules in the energy sector. I [00:25:00] did that for almost 15 years.
And then, again, a coincidence: Christiaan Timmermans had become a judge and they had organized here a reception for the 20th anniversary of the General Court to which I was invited, and the first person I meet is Christiaan. And he said, “I’m leaving and I think you should apply.” I said, “How do I do that?” He said, “Didn’t you see the ad in the newspaper, in the legal journal?” No, I hadn’t seen it. So he went up and made a photocopy of it and we figured out that the deadline expired on the very same evening [laughter]. So, I went back to Brussels, filled out the form, I sent it off, and then ultimately there were two jobs, one at the General Court and one at the Court of Justice, and that’s how I ended up here.
So, it’s just [00:26:00] coincidence, being at the right moment with a specialization which not many people know of; that was competition law, it was energy law at the time. At a certain moment, it has been, for example, data protection. Those who were the first ones to do it, now they’ve come to be the kings of the trade, if I may call them that. The other thing is what will be the next type of law in which this will develop.
For example, you could think of water. I think that’s typically an area of the law where you would see the same development: water lawyers. Of course, as a Dutchman, people will understand this because it’s the oldest area of the law for the protection of the dikes and the polders to keep the country dry. But it’s not only that, it’s also access to water, the [00:27:00] pollution of the water, the quality of the water, and it becomes also a geopolitical issue. For example, conflicts between African countries, and in the United States as well, conflicts between states, the ones which are upstream, the ones downstream who don’t get anything anymore. “Can you have a golf course in Las Vegas?” [Laughter] That’s the type of questions you will have to deal with. If I had to redo it, I would probably do it like that.
Katerina Linos: I want to ask a quick follow-up which is about your career as a law firm partner after working in the Legal Service. It’s unusual—among the population of judges we’ve interviewed, I think among Commission officials—to move to law firms at that level, even though in the U.S. it’s extremely common. And in fact, everyone who served in the Biden administration is likely to be at a law [00:28:00] firm. Am I right, that it’s unusual for people to move to senior positions in industry and why is that?
President van der Woude: It has become more frequent. I think it’s also cultural. For example, most of the Dutch colleagues with whom I was at the time at the Legal Service, they left, either left to do private practice or they moved. This idea of moving is perhaps something which is also culturally determined. If you take the more classic continental approach: you choose your career and you stay in that. The typical example would be France. You decide, and when you’re 25, you go to the l’École nationale de la magistrature and you become a judge and that’s what you will stay for your whole life. The same thing if you become an academic, you follow that route. There’s not much interaction between the careers. But I think it’s changing.
It’s changing, but it also leads to resentment, what they call in French, [00:29:00] pantouflage; pantoufle is a slipper. It’s easy to walk and you put on the slippers of the public service and then you move in a comfortable job in the private sector and vice-versa. People find that suspicious, in the sense that you would use some knowledge or your position in the public service to obtain something better, or financially more attractive, in the private sector. So, there’s this suspicion. Of course, there are cases . . . but personally, I think as an idea it’s very good, because you have the experience of the private sector in the public sector and vice-versa. It’s also mutual understanding between the two sectors.
I think it’s also very important for judges to know how a company works. You can, of course, have a look at the company, “Oh, yes! You have the shareholders and you have the board.” And so you have a very [00:30:00] legal look at it. Those who do white-collar crime would think, “Probably they’re all crooks!” [laughter]. Those who do environmental law: “Those people who pollute,” but no—companies, it is also where you set up something, you do things together. There’s a positive thing about it. It creates wealth. It creates jobs. It procures job satisfaction for people. Companies have their own ethics, and own ideas. I used to work for some clients and, for example, the concepts of safety, protecting your people against accidents—all the reflexes I still have, which developed in the private sector. “Hot tap, don’t use it.” And that’s typically something which comes from the chemical companies because they had to protect their employees. I think it’s very important, but indeed you’re right, something which is not as common in Europe as it is in the United [00:31:00] States.
Mark Pollack: We’d like to pivot now to the General Court where, again, you’ve served as a Judge since 2010. You’ve been elected by your colleagues as President in 2019, and then again in 2022 [and re-elected on September 16, 2025 for another three-year term]. In our previous interviews at the Court of Justice, the General Court comes up constantly, partly because appeals show up at the Court of Justice, but also because we are constantly reminded that we have to go back to the case law of this Court in order to understand the things that we’re interested [in]. You’re of course, the ideal person to do that. So, if we can ask you in general terms to explain to our listeners what the General Court is, what kind of jurisdiction it exercises and where it fits into the European legal order. We could be here all day, but—
President van der Woude: I think to put it simply, the General Court is simply the administrative review court of everything the European Union—as an institution, as an agency, as a body, or any type [00:32:00] of emanation of these institutions—does. So, we are just an administrative review court of 50,000 European officials that do all sorts of things. And they do many, many things. It’s much more than what people think. In quantitative terms for example: trademarks. It’s tremendously important for the industries. We have an agency that registers trademarks, and that’s one part of the activity. Banking supervision—the [European] Central Bank, the Single Resolution Board and things like that—is also an activity which is very important in quantitative terms for us.
Then, as we discussed before, if the Union acts against third States, or it feels aggressed or there’s a need to take action—take these [00:33:00] sanctions against companies or individuals from third States, in particular, now Russia of course—then again, we provide legal protection to those people. If there is a health crisis, for example, the Corona crisis: What are the drugs which are authorized, which are the vaccines which can be used and which not? You have the whole authorization process via the European Medicines Agency. That’s again, something which comes to us.
Everything the Union does, in one way or another, ends up on our desks. I think you could compare it to the U.S. District Court of Appeal in the District of Columbia. We provide to the individuals, the companies, but also the Member States, legal protection against those actions. In a certain sense, these institutions and all their emanations—it’s a kind of State or [00:34:00] entity and the legality of that action is controlled by our Court. The decisions of our Court can be appealed before the Court of Justice. And the Court of Justice interacts with the national courts in the 27 Member States in the same way. So, sometimes I say we have a particular Member State, the 28th Member State, which is the European institutions.
We are kind of Conseil d’État, Council of State, acting in parallel with our counterparts in the Member States. And the uniformity of the law is guaranteed by the Court of Justice, as in its more or less constitutional role. So, that’s our role for the moment.
That role is now, of course called into question by the transfer of competences from the Court to the General Court to ensure the uniformity of the law in certain areas of the [00:35:00] law. We add on our capacity as an administrative review court, something else. We have now also to interact with our colleagues in the 27 Member States and basically broaden our mission statement from an administrative review court into a court that works together with sister courts to ensure the uniformity of the law.
That’s a phase of transition in which we are now.
Mark Pollack: That is one of the questions we had for you, because we talked to President Lenaerts about this reform, and he was very enthused about it. But, it’s actually this Court that has to essentially carry it out. You will now, for example, be tasked in a number of areas to, as you say, become a sort of court of interpretation working with the national courts in [00:36:00] various issue areas. And this raises, I think, two interesting questions. One is about the unity of the law, when you have two courts now accepting preliminary references. And then there’s also a set of interesting questions, I think, internally. So, for example, you will now have the function of Advocate General among your judges. I wonder if you can tell us about how this Court is adapting and preparing.
President van der Woude: The external element and the internal element. As regards the first, the external one: the idea of the whole exercise is that it should not make any difference for the referring court, whether it is the Court of Justice or the General Court. We have, say, invented a system which is this guichet unique, the one-stop shop. Basically, if you are a national court, you just go to the registry of the Court of Justice and there is [00:37:00] somebody—that’s Koen Lenaerts [chuckle], mostly—who will check, is this something which falls within the competence of the Court of Justice? Or is it something which belongs to the General Court? If it’s the General Court, it simply follows from the registry of the Court of Justice to the registry of the General Court. That’s the idea.
Now, the Court of Justice will keep the cases which have, I would say, a constitutional dimension. So, cases where it’s not really the technical part of the law which is important, but where it has ramifications in other areas of the law, in particular fundamental rights, public international law—that would stay at the Court of Justice. That’s the external component. So it should not make any [00:38:00] difference from the point of view of the referring court. (With one “however,” which I will say a bit later on.)
Then, coming to the internal machinery. The idea there is, also, it should not make any difference. We have adapted our procedural rules on the model of the Court of Justice. So, we added, basically, to our rules of procedure. We’ll find it there, a chapter on how to deal with preliminary reference questions. Part of it is also the Advocate General, because it’s an additional guarantee in the debate on the interpretation of the law, on which Member States and the institutions insisted. We have a specific provision in the Statute on the Court of Justice of the EU on the Advocate General at the General Court. That function already existed since 1989, [00:39:00] but it was optional and it was triggered very rarely, only in five, six cases or so in the beginning of it, because—now we would get into the nitty-gritty of procedural law and the way we work—it was too complex at the beginning. One tried it at the beginning, but soon the workload became more important. It was also a trial court. Having an Advocate General in direct appeals, does it make sense or not? So the phenomenon didn’t work in that setting.
But in a preliminary reference setting, it’s essential to have least a bit of contradiction. The idea that, of course, if a question comes on the interpretation of law, the fact that the national court has been struggling with its interpretation is already a sign that there is an issue for discussion—what the French would say, un dialectique—between the various sides. I think the Advocate General is an [00:40:00] additional safeguard to the system. So, we have instituted Advocates General; they are judges who have been elected to exercise that function. That’s the major change. Another change internally is that we will concentrate those cases in two Chambers and develop expertise.
And now I come to the little caveat I made. Of course, we will do it as the Court of Justice does, and the guarantee we have to give to the outside world is that we will do it just as good and just as fast as they do it. But our ambition is to do it better and faster [laughter], and that sounds a bit presumptuous. But not necessarily so, because the fields in which we have this competence are very technical fields. And they’re also areas of the law in which you would see specialization at the national level, [e.g.] Bundesfinanzhof [Federal Fiscal Court]; [00:41:00] you also have in Austria specific courts dealing with financial issues. So, they become our, if I may say so, our interlocutors.
And the idea is in those areas to create communities of law which make this law prosper. As we do, for example, with intellectual property law; we are part of the intellectual property law community, we are also part of the competition law community. For example, trade defense—it’s also one of our activities where we have lawyers who interact with, say, the academics, the legal community. The same idea is, we develop that type of expertise in those technical areas in which we now have competence, and in particular in these VAT matters, value added tax.
Mark Pollack: I had not heard before about the creation of the specialized Chambers, and my understanding is that the both Courts had sort of resisted the notion of having [00:42:00] specialized Chambers up until now.
Is this something new?
President van der Woude: Yes. There always has been a certain resentment against specialization. We already managed to overcome this [laughter] because we are the General Court. The objectives suggest that we’re generalists and that we would like to remain generalists.
But also we understand of course, that if you have lots of cases coming in, which are very technical, you have to go fast. You have to understand and be able to engage in debate with the specialized lawyers and the agencies. We have that type of specialization in staff law, everything which is the protection of the people who work for all the institutions—the 60,000 people or so, 50,000, 60,000—then, the trademarks, for example, is an area; intellectual property law . . . and now we have those specialized areas which are [00:43:00] being transferred, and the core business there is, of course, VAT law, which is highly technical. Again, in order to be able to engage in a debate, I think it’s very important that people do it on a regular basis. You will not do a VAT case properly if you do it only once every two or three years. It’s something which you have to practice.
Katerina Linos: I wanted to ask about another big change in the General Court, and that’s the expansion of the number of judges. Could you talk about what drove that change and how it has impacted the Court’s workings in specialized areas, in general areas, the time it takes for a particular case to be resolved, and anything else you could say on this dimension?
President van der Woude: Basically, the reform on the transfer of competences is a direct consequence of the earlier one. It’s always—future developments are [00:44:00] explained by the past [laughter]. The General Court became this general review court, basically, in 2001 with the Treaty of Nice. And it became, in a certain sense, a victim of its own success. The cases came in, more and more cases were added, and cases became also increasingly complex. And that led to huge delays in the treatment of cases—I would say, the end of the first decade, the early part of the second decade of this century. And that was considered to be unacceptable.
The same considerations then applied to the General Court as they had applied 20 years before to the Court of Justice when the General Court was created. Coming back to this internal market project, why did industry insist that there [00:45:00] would be a specialized, or, say, a court of first instance dealing with competition cases? Because they wanted to have, first, in-depth judicial review in two stages—because they were quasi-criminal in nature. So, in the internal market project, industry insisted, “We accept merger-control rules, we accept higher fines and things in the competition, but you should have a court.” Basically, they were criticizing the Court of Justice for its light judicial review and the backlogs in competition cases. Now, coming back to the end of the ‘10s of this century, the same criticism: “The General Court takes too long. The judicial review is too light. It’s not correct. We have to wait.” Something needed to be done.
The General Court itself put the issue on the table by saying, “We need a specialized court on trademarks, because that would relieve us [00:46:00] from a significant part of the activities.” When they came with this proposal, there was already a specialized court which was dealing with staff cases, but there, Member States couldn’t agree on who would be the judges in those staff cases. Because, as you know, all Member States are equal. Germany is equal to Luxembourg. È cosi [“That’s how it is.”] [laughter]. “Who decides?” So, there was basically a deadlock at that court at the time, increasing backlog in the number of cases, dissatisfaction with, say, the applicants and the industry. The idea of doubling—of creating a new specialized court would create, again, these political problems. “Who would be the nationals? Who would be the Member States who would be authorized to send judges to those courts?” So, somebody came with a pragmatic idea: we just increase the number of judges in the General Court and we take it from [00:47:00] there.
And then the question arose: “But, how many?” First there were 12. That was considered a bit too much, especially by the more austere Member States. (One of them I know very well.) And then it went from 12 to nine. And then, “But, who should it be?” There were endless discussions. And I think it was the Maltese delegation—a large Member State, as you can imagine [wry laughter]—that said, “Okay, let’s just double the number of judges and ‘suppress’ that specialized court.” And it was a pragmatic solution, which led to this reform. It didn’t happen overnight, by the way. It was a reform which was adopted in 2015, and which became only effective in its entirety in July 2022, when we were 54 judges.
Now, in that period from 2015 to 2022, we have shown, [00:48:00] I think, to the outside world that this made sense. We no longer have backlogs; cases go fast. There is no complaint anymore about the lightness of—or “the unbearable lightness” of—our judicial control, to use a Czech term. It’s now the opposite. It’s the Commission complaining, “Ah, they’re overdoing it!” We might come back to that a bit later. You see the colleagues digging into it. So, now we have to find an equilibrium again.
And already in the Regulation of 2015, when this was put into place, there was the idea the heat might be on the Court of Justice again in a couple of years. So, we could use that capacity we create at the General Court to do the cases which the Court of Justice can transfer under treaty to the General Court. Already in 2015, this reform of 2023 was anticipated. [00:49:00] Bon, and now it works. Of course, we still have to show that it will work, but as I said, we have an obligation to deliver it, which is just as good, and the ambition to do it better [laughter]. That’s the continuum between the reform of 2015 and the one adopted, I think in April 2024 and entered into force on September 1st [2024].
Katerina Linos: Thank you so much. Before we get to specific cases, I wanted to ask about the General Court and press coverage. In the United States, if the wife of a Supreme Court justice has a dispute with the neighbor, it’s front-page news. And here, when we’re looking to find out more about the judges, we’re trying to check how everyone’s name is pronounced. For some judges, we can’t even find a single YouTube video. We can’t find a Wikipedia page. There is so much less that is known about the judges [00:50:00] and to some extent about the cases.
Given that so many California firms, so many multinationals—Microsoft, Apple, Google—are the subject of your decisions, can you talk about how press coverage works and to the extent that there’s limited press coverage, does that have something to do with who you understand your audience to be? When we were speaking to the Registrar, he said, “Our audience is national judges, which was why we have half our staff doing translation.” But there are not a lot of journalists internal to the Court and there are not a lot of journalists coming to Luxembourg. How do you think of this issue of press and communication with a broader public that cares about technology regulation?
President van der Woude: It’s a good question. We are lawyers, of course, and the focus is on getting the work done—sitting on your files, [00:51:00] and once one file is over, you take the next one. That’s typical. I think it’s the nature of the profession, that you don’t really look for external coverage. You just think, “A case is a case.” And in many respects, it’s like that. You do deal with one case after the other, but that’s not an explanation why we don’t have much more press coverage.
Of course, there’s also the Court of Justice, which is the Supreme Court. So, they are more active. This being said, we issue, on a regular basis, press releases; the intensity of these press releases has increased over time. So, we work on it. There are also various projects, to be more active in the media. But it’s true that there is a margin of improvement and that we study all that. It might also be where we are located [00:52:00] [laughter], which I find very fortunate. The fact that we are in Luxembourg, we don’t have interaction with politics or lobbyists or whatever. We’re just judges on a mountain in Luxembourg and we do our work. That’s, I think, a very good thing.
But, I think there is indeed a possibility to explain better to the outside world what our judgments are about, how they fit in. And so we have all sorts of projects—also, our videos where we explain this. We have books and publications. We organized the services of the Court dealing with this a couple of years ago. You see now, gradually, the improvement coming. But it’s true that it doesn’t have the same resonance as in the United States.
It’s also, I must say, probably very arid for most people, what we do. It’s highly [00:53:00] technical. I don’t think people will read on Saturday evening a judgment of the General Court in a competition case. It’s not typically the most amusing type of reading, I would say. And there, we could improve.
Mark Pollack: I’m going to use that, precisely, as the foil to tip over into some discussion of the case law of the General Court. Because we were reading in preparation for this interview, a profile of you from 2020 when Politico provocatively referred to you as “the man who overruled Vestager.” It noted that the General Court had recently annulled Commission decisions in the Apple Ireland tax, or State Aid, case and in the CK Hutchison Wireless merger case. And the article proclaimed, “The court in Luxembourg is willing to stand up to Brussels, [even] in big cases.” That being said, the General Court’s judgments in [00:54:00] both of those cases were then set aside by the Court of Justice.
Now, of course, since then there’s been a great deal of case law. But since most of our listeners will be unfamiliar with that case law, I wonder if you could say how you think today about the role of the General Court providing judicial review over the actions of the Commission, and as you said earlier, protection for the individuals who are at the other end of those judgements?
President van der Woude: Well, first, what Politico says—it’s their responsibility [laugher]. The second point is to say that they should have known that there is an appeals system. The very reason of the General Court is that we have a system of judicial review at two levels, especially in complex cases. And that was precisely the reason why industry supported the idea of creating the General Court in the first place in the 1980s. So, the system works.
I think also the [00:55:00] cases show that the intensity of judicial review has been taken seriously, and sometimes we are whistled back. That happened, for example, in CK Telecom. It’s an area of law, where you look into the future: how will a merger work out, what has to be done and what’s not to be done? The theory of harm in that case was also relatively complex. The decision was a thousand pages. The General Court took a specific angle and the Court disagreed with that. That’s how the system works. We were whistled back. In the earlier parts of this century, we were criticized for not doing it good enough. And now, it’s the institutions that complain, “You are overdoing it.” We have to find the right balance somewhere.
As regards CK Telecom, of course, we can go [00:56:00] into the details, but the Court is always right. That’s how the system works [laughter]. Then you have the tax ruling; that’s a different area of the law. Because that’s something completely new. How to approach it? Mrs. Vestager came with this idea of applying state aid rules as regards to tax rulings. We were sympathetic, at the General Court level, to that idea. So, we thought with the Commission. Of course, we annulled some decisions. We had to find the case law; we had to develop it. It was, by the way, a very interesting process, because you can imagine that you first have to dig into the whole thing. You have to dig into the facts. You have to go to the OECD [Organisation for Economic Co-operation and Development] rules. Now, we took a specific line. The Court of Justice took a different line. È cosi; that’s how the system works. At least it shows that in some cases the Commission is right, in other [00:57:00] cases it’s not right. I suppose any judicial system works like that.
Of course, the peculiar thing with the Apple case is that it involves a huge amount of money which now is a cause of embarrassment for the Irish Treasury, in a positive sense [laughter]. But I don’t know what the Commission will do next. It dropped some of the cases, but we will see whether that will evolve. It also depends. . . What you often see, by the way, is the Commission trying to explore, using existing legal tools, a certain legal area—for example, the liberalization of the energy sector rules, pharmaceutical sector or the airline sector—so it sets up individual cases. That leads to litigation.
And in parallel, there are legislative proposals [00:58:00] basically using the individual cases as a lever to get results on the legislative front. For example, in the telecommunications sector, it was typical; it was these cases which were pending before the Court which boosted the Commission in its efforts to apply, say, the rule. And Member States say, “Okay, at least when there is the legislative process, we are involved. Because if it’s only the judicial dynamics, we don’t know exactly where this will stop.” So, it’s the two tracks which the Commission will do. And there has been a compromise on this 15% rule in the OECD. And it might be, of course, that this whole litigation was part of a broader game to get, at least the profits made in a certain State being taxed by that State at a minimum level. So, I don’t know exactly where we stand on that particular litigative front in the various Member States, but that’s probably [00:59:00] where we will end up.
Mark Pollack: This is fascinating, because when I was taught European competition law, we were told that the Commission in the 1970s leaned over its skis in Continental Can and other early merger cases, and creatively found ways to move into areas that weren’t clear from the Treaties. Then the Court follows up, and then the Commission follows up with legislation. You’re sort of saying that process continues today.
President van der Woude: Yes, it is. For example, we take the merger control. We had the initial proposal, I think it was 1972; Continental Can, 1973. The Commission then sees that its proposal is not adopted, but it continues. We had this Philip Morris case. I remember when I was a young official—in coming back to my own career—we tried to use Article 86 as it was at the time, which is now Article 102. I say, acquisitions [01:00:00] can be an abuse of a dominant position. By the way, rules which come back, now in another context—l’histoire se répète [history repeats]—it always comes back. And indeed, this pressure in those individual cases, in particular Philip Morris, but also initiatives which we had in Pernod Ricard and in Sara Lee at the time, created sufficient pressure on the industry, together with this internal market project and led to the adoption in 1989 of the merger control regulation.
We saw that in the telecoms business. We saw that in the ground-handling services for the liberalization of airports. We had the cases—Frankfurt Airport, you had Milan Airport. I remember you had the series of airports cases where using your position in one market, especially the infrastructure airport, to monopolize an adjacent market for [01:01:00] ground-handling services, was considered to be an abuse of a dominant position. Now, that led to all sorts of regulations. Same thing with the energy sector, where we saw similar developments. So—this could be one [laughter].
Katerina Linos: Can I follow up on that? So, is it fair to say, “Look, this Commission vs Ireland case has this number, €15 billion, and it looks really big,” but there might be a bigger game there. It might be that the Commission, the Biden administration, Janet Yellen—they’re all in this together. They want the global tax treaty, that’s 15% minimum tax. That’s a big number. That’s the game—
President van der Woude: —That’s the objective. I won’t say we were being instrumentalized [laughter] but we’re part of that bigger game. And it’s a game which has been played many times before. It makes sense, because in those individual cases, you test what the issues are, what the difficulties are, and it also leads [01:02:00] to knowledge, which you can use in the legislative track. At the end of the day, it makes sense.
Katerina Linos: From the perspective of the remedy in these cases and the practical impact: there’s a decision by the Commission that a practice is illegal and that some money needs to be put in escrow, or a bank guarantee needs to be issued. And then, if the General Court a number of years later says, “No, the money needs to be returned—” there’ll be some debate about the interest, but I can envision a reasonable remedy. In the merger cases, what happens when the Commission says, “I’m blocking the merger” and as in the Grail/Illumina case a while later, the Court says, “No, that was incorrect”? How does it work from the perspective of the impacted entities?
President van der Woude: It’s a very good question. The only remedy is damages action. So, we had [01:03:00] seen that in the wake of the 2002 judgments in Tetra Laval and Schneider. But it’s a relatively complex and blunt tool because we have case law, which says that to engage the liability of the administration in such circumstance, that there must be manifest—more than manifest—violation of rule. For example, if you take a merger case like CK Telecom and the fact that the Commission prohibited; the General Court annuls the prohibition decision; the Court of Justice annuls the decision of the General Court. But in the meantime, the CMA [Competition and Markets Authority, United Kingdom] approved that very merger.
It shows that it’s a gray area and you cannot apply damages rules when you are in a gray area where you have huge administrative discretion. So, it is unsatisfactory; I can understand. But, on the other hand [01:04:00] it’s a prospective tool. There’s no harm done, I would say. If the merger has already been implemented, as it was in Illumina/Grail, that might be another issue. We will see how the people react, because there, of course, it’s on the interpretation of the old “Dutch Clause,” Article 22 of the Merger Control Regulation. Was it obvious? Was it not obvious? Here again, there were many national authorities that sided with the European Commission. The Commission took a decision. The General Court sided with the Commission. Then, the Court disagreed.
But now we, for example, have a case pending involving Luxembourg, which doesn’t have merger control rules. So here again, it shows it’s not always obvious. It’s a gray area of the law. And, now we have clarity after the judgment in Illumina. But the case of the Court [01:05:00] itself gave also ambiguous signals; if you take a case like Towercast, and you read the last recital of that judgment, it could have been interpreted—and it was, for example, in the legal doctrine—“Oh, well, the Court of Justice will probably side with the Commission as well.” So, it was the fact whether you could still apply the old monopolization doctrine under the threshold of the Merger Control Regulation in a national setting. And the Advocate said, “Yes.” So it’s, again, starting damages actions in that situation, I don’t say it’s impossible; I don’t know, but it’s something to be seen. I don’t know exactly what the companies involved will do, but again, we will have a look at it if the case comes and assess it on its merits. But at this stage, it’s impossible to say anything about it.
Katerina Linos: I’ll turn now to some statutes that even my [01:06:00] California colleagues are like, “No, no, no. I really know this statute inside and out,” or at least, “I should know this.” And of course, the first big such rule is the GDPR [General Data Protection Regulation]. I’ll start with the GDPR before getting to more recent statutes. Is it fair to say that the jurisprudence of this Court and the Court of Justice has vindicated fundamental rights in some ways that put it as a check on the Commission, but further on the side of privacy than even the Commission sought?
So, from an American perspective—there’s an agreement, a transatlantic data transfer, and the Court of Justice says, “No, fundamental rights were not adequately protected.” And that jurisprudence is just hugely important, hugely protective, and significant to everyone in California. Is that a [01:07:00] fair summary?
President van der Woude: I think you were referring to Anu Bradford [laughter]. That’s a typical example of the impact of the GDPR and the case of the Court of Justice well beyond the European Union. Not only because it’s European Union; many other States have copied it. It’s, it becomes a regulatory model.
Now, I’m not a GDPR specialist. We don’t have many of those cases, because they apply mostly in a national setting. So, it’s the Court of Justice that interacts. This being said, you have, of course, this Austrian gentleman who’s the origin of all this.
Katerina Linos: Mr. Schrems?
President van der Woude: Mr. Schrems. He starts litigation before national courts. They end up at the Court of Justice and lead to this Schrems case law, with the consequences we know. And, the discussions—[01:08:00] which for the Commission—[make it] quite difficult to engage in negotiations with a U.S. counterpart. It’s not an easy job for them, especially because the Court of Justice is independent, as any court should be. So it’s a complex negotiation.
At the same time, these decisions by which the Commission or any other authority approves these international agreements can be challenged, sometimes before us. We had a parallel case to Schrems initiated by a French NGO. So, we stayed our procedure, waiting for the judgments of the Court. And, there you see the interesting elements: the Court of Justice dealing in the preliminary reference setting in very high-level terms, whereas, we were “digging into the engine” [laughter]. So, the General Court could be involved [01:09:00] in those type of cases, but the Court of Justice has the lead. Since it interprets the law, it’s sometimes law which is difficult to apply. That’s the only thing I can say at this stage.
We, of course, we have our own GDPR dimension as regards the behavior of the institutions themselves. So, you have a parallel regulation to the GDPR regulation for the Member States, which applies specifically to the European institutions. And sometimes we have cases on that. For example, on which company can the Commission contract with when it wants to set up an EU cloud, or things like that. So those type of questions could then come to us.
I can understand the embarrassment in the United States because there’s a dichotomy in a certain sense between, on the one hand, the ones that provide those services, and on the other hand, those who regulate those [01:10:00] services [laughter]. It’s a complex thing. So; Member States, Court of Justice, the institutions, General Court, and then the United States where it happens and Europe regulating. It’s a complex field for the companies to operate in. But, they have the resources to do that [laughter] and I’m sure they will manage.
Katerina Linos: Yes, and it seems like it will become more complex with the Digital Markets Act, the Digital Services Act, the AI [Artificial Intelligence] Act. Those are broader in scope, ex-ante regulation of these large California tech companies and their enforcement has only just begun.
I wanted to ask about the initial cases that have come before you. I’m particularly interested in the designation of Amazon under the DSA. The designation of ByteDance under the DMA seemed more straightforward a decision. But could you talk a little bit about who [01:11:00] is contesting their designation and why, to a large extent, you sided with Amazon?
President van der Woude: The cases before us, on especially how the thresholds apply and as to the legality of certain provisions of the DSA, when the DSA is triggered, in particular the obligations to have a specific repository—it’s relatively technical type of litigation, which is now pending before one of our Chambers. We might expect, I think, judgment during the course of next year [Note: three such cases were decided by the General Court in 2025]. That’s for the DSA.
For the DMA, we also have similar type of litigation, which deals with the question as to whether the thresholds apply or can be rebutted. And that was the ByteDance case, where the General Court said, “No, the Commission was right not to [01:12:00] accept the arguments of ByteDance,” to stick to the relatively mathematical formulas which are in the statute. We have only seen that, for the moment.
Of course, probably where you refer to is the interim relief cases. In Amazon, the argument—first, you have a complex admissibility question; it is not an easy one. Normally you can challenge an individual act. But, if the individual act relies upon a general act which is illegal, the individual act becomes illegal by virtue of its legal basis. So, you can invoke an exception of illegality as regards the legal basis. But, how does that work in the DSA setting? It says, “There is an existing set of rules which are triggered by an individual decision.” And now the applicants say, “Oh, [01:13:00] yes, but if then these rules apply to me—those rules are illegal,” but they’re not the legal basis of the designation decisions [laughter].
So, we had a very complex procedural question, which now the General Court has to decide on the merits, but both the president of the General Court and the vice-president of the Court of Justice said, “We will not say that the Commission or the other party is right, but—”
Okay, it’s complex. It’s not something for an interim relief procedure, so it’s not manifestly inadmissible. We then had a look at the legality of those provisions. Now, if you are an interim relief judge, you have to deal with it very fast. The stance of my personal view was, “If information is in the open, it’s in the open and it’s very difficult to put the genie back in the bottle.” That was [laughter], in summary, [01:14:00] the reasoning.
The vice-president of the Court of Justice took a different view. He said, “No, you should make a distinction, whether there is an act of general application which the legislator decided. It’s not an individual decision to say that this information has to be in the open. It’s not comparable to an access-to-document case, for example. This is something which the legislator decided, and it’s not for an interim relief judge to interfere in that decision taken by the legislator.” That’s a different view. So, the obligations of the DSA apply immediately, so there’s no suspensive effect of those obligations at this particular stage.
Katerina Linos: Let me just confirm a technical point on interim relief. Is it fair that you handle the interim relief cases for the General Court as president and then the vice-president of the Court of Justice handles all those [01:15:00] cases?
President van der Woude: That’s how we split the work.
Katerina Linos: We had asked the previous vice-president, Vice President Bay Larsen, about how much of his work is interim relief. And he’s like, “Oh, easily half of my work.” Is that also an estimate—is that a big portion of the work you do?
President van der Woude: It’s essentially the weekend work, because these cases come in on the Friday afternoon or just before Christmas [laughter]. They take up a significant amount of time. But, they’re also very interesting—so, it doesn’t matter if it does [laughter].
Katerina Linos: In an interview in 2023, you predicted a wave of these cases and that’s also what I would’ve expected. But earlier today, you said, “Actually, we haven’t seen as many as I was expecting.” What do you think is happening?
President van der Woude: First, amount of designations decisions are relatively limited. It’s a dozen on both sides. Of course, for the DSA, I think the center of gravity lies at the level of the Member [01:16:00] States. But, they’re not many of those cases. It was difficult to predict in the abstract how these thresholds would work. So, I thought they would catch more. And second, I expected that given the stakes of this, that the companies would be more vigorous [laughter] in contesting the application. It’s rather the other way around. They seem to work with it, to adapt to it. But, that’s an intuition. I’m just here in Luxembourg [laughter].
However, this is the beginning of the process. And so, we have the designation, then we have the question as to what is exactly the scope of the obligations which are resting upon those companies. You can obtain derogations. You can obtain, say, that decision which could specify the way obligations apply. Then there is the enforcement procedure. . . . So, it’s perhaps too early days, but it’s true, I thought there would be [01:17:00] more.
By the way, here, again, coming back to history—when the Trade Mark Regulation was adopted in the beginning of the ‘90s, we also thought that it would be—whoop, lots of work coming. It didn’t come. It came five years later. Then the General Court was, basically, swamped by trademark law. So, it took a lead time. We thought, for example, when REACH [registration, evaluation, authorisation and restriction of chemicals] would be adopted 20 years ago, that this would lead to massive litigation, that companies would be objecting to it. No. It hasn’t led to this effect. REACH cases come in, but not many of them. I don’t understand why, but might well be that industry is happy with that system, because it also leads to insight in their own products and can boost innovation cycles as to what exactly these substances are. And so we have litigation, but not to the [01:18:00] extent that we would’ve thought of 20 years ago.
Katerina Linos: I remember I was a stagiaire in the Commission, in a totally different department, and the only lobbyists that came through were REACH lobbyists.
President van der Woude: That’s a similar phenomenon. It’s a bit of crystal-ball gazing each time. What I personally find regrettable is that, in the Commission’s impact assessment when it proposes legislation, that it doesn’t pay much attention to the judicial impact of legislation. In my country, we have the Council of the Judiciary, which is then consulted by the Executive when it proposes legislation to see what the consequences are; expect, if you change, for example, the protection of tenants—if they get more protection, it can lead to more litigation. What’s the quantitative impact on your courts? Do we need additional judges or less judges? In this process, the Commission—for example, GDPR [01:19:00] leads to massive litigation—just adds up to what national courts have to do. But did somebody think, at the time it was proposed, that it could have an impact on the judiciary? It would’ve been nice—for example, DMA and DSA, to have also a similar impact [assessment]—it would also have been more comfortable for us [laughter] so that we can know what to expect.
Katerina Linos: It’s fascinating. We have California conferences these days, where some people from the Commission come and they’re like, “We are so, so lucky that we have a conference at Stanford or at Berkeley with some of the technical experts, so that we can understand how we could possibly enforce any of this.” Because, as you said, the companies are well-staffed, the universities are somewhat well-staffed, and the Commission is not very well-staffed, and the reach of the regulation is amazing.
Let’s turn away from competition cases, and even from the General Court, to a statement you made in 2020 [01:20:00] on threats to the European judicial order. At the time—the middle of the pandemic, a very scary moment—you said that there were two big threats. One was the decision of the German Constitutional Court, the PSPP [Public Sector Purchase Programme] case, to challenge the capacity of the Commission and also the European Central Bank to do their job. And you connected that with the rule of law threat in Poland and Hungary. This is amazing for a number of reasons. One is that you, in your capacity as a sitting judge, issued such a statement. To me, the German judges went out, after all this press outcry, and said, “We came down the same way. It’s just that the polls, and the Hungarians, are applauding us. We’re getting applause from the wrong side, but our [01:21:00] decision is correct.” And now we’re seeing similar ultra vires cases from Poland. Could you talk about that decision to issue that statement in your personal capacity and also about the content?
President van der Woude: First, the case involves the Court of Justice and not the General Court. I am a citizen, as anybody else; of course, with a specific hat. So, I felt free to express my view since I was not involved in any way in that case. That’s the first point. The second point, is that the German case was peculiar. Because it is not necessarily saying, “It’s an ultra vires tout court, because you entering a legal area which doesn’t belong to the sphere of competence of the European Union.” No. “You exceeded that sphere of competence, because you—Court of Justice—you didn’t do your job properly.” So, that’s the curious [01:22:00] thing, basically, where you have a constitutional court acting as a kind of appeal court on the Court of Justice. If you have a system like that, you blow up the whole system we set up in the Treaties. And, of course, it would be an argument for, say, the Polish government at the time, to prevail itself from that type of reasoning: “Look, the traditional States, they even go further than we do. They put themselves at the higher position.”
I think that was the thing which really [laughter] got at me. I can understand fully that you have constitutional arguments as to what exactly the scope of European law is. I also understand—I think it’s also a healthy sign—friction, because European law expands. It goes into all areas of law. It’s obvious that there will be this interaction with the Court of Justice, where they will have to find some kind of [01:23:00] equilibrium on exactly the scope of what Union legal order is, and how it interacts with national—that’s an ongoing process. And it will go on. That’s the constitutional task of the Court of Justice on which it has to focus, together with the constitutional courts of the Member States. And I think that’s a healthy process. But, where one constitutional court says to the other, “You didn’t do your work properly and I annul the results of your work”—that’s of a different magnitude. And that still makes me angry [laughter].
Katerina Linos: Well, you are not alone. Elena Kempf, who’s an MIT professor, and I are writing this paper called Shaming the Court. And it’s about the volume of negative press coverage the PSPP decision got—it’s off the charts. And the imagery in all the German newspapers is very telling, it has the president of the court, Andreas Voßkuhle looking down. And we’re talking [01:24:00] about how the German court then green-lighted the NGEU [NextGenerationEU] program, after all that negative press coverage. So, I’m wondering today, where is the state of dialogue with the German court, with the Polish court, with the Hungarian—the top courts that are maybe not engaging in as friendly a dialogue as the Lithuanian Supreme Court? How would you characterize where things have moved on?
President van der Woude: To be frank, it’s something which is not part of my duties. I am just a citizen, as I said. That’s why I was free to comment on it. I am not involved in that, and that’s an issue of the Court of Justice. And that explains also why we have this split of work. It’s for the Court of Justice to also have the time to engage into this debate. It’s highly complex, delicate, takes time . . . lots of dialogues—they regularly meet to discuss this. There has also been this Franco-German proposal to create a more structural [01:25:00] link of dialogues between those constitutional courts. But that’s, I would say, the task of the supreme courts of the Member States. We are a technical court. That’s our core business. It’s also why, for example, we will deal with VAT. We deal with, say, the technicalities of things. When it’s the constitutional comment, that’s the for the Court of Justice to decide.
Of course, I have my personal views, but I think it’s a matter of time, and it’s normal. Over the past 20 years, this European law has expanded so incredibly and the concepts, of course, which we use were developed at another period in time. I can understand that somebody accepts easily the principles of primacy and things, when it comes to technical issues—free trade and things. But, when it comes to societal issues, it requires much more [01:26:00] time and discussion to come to some kind of modus vivendi, than when it concerns simply sending goods from A to B.
Mark Pollack: We have discussed some highlights of your career, the nature and the workings of the General Court, some of the case law of the Court. I wonder if you have any final thoughts or any final things that our listeners might want to know about this Court over which you preside?
President van der Woude: I think we are, again, at the beginning of a cycle. As I said, we started in 1989, as a court specialized in staff cases and competition law cases. Twenty years later, it became a general court. Twenty years later, it becomes a court which also deals with preliminary references. Now, if the European project continues, my hunch—I don’t know whether [01:27:00] I will be there [laughter] when this hunch crystallizes into something concrete—is that most probably this court will be dealing with most of the preliminary references. And that it will be, really, a supreme court at the top of it, which will deal with the really constitutional issues. That’s what I look at as the way it will develop.
For example, if you take U.S. Supreme Court, how many cases do they deal with in judgments—85, 90? Of course, they’re only—they’re not many. They’re only nine and then we have 27 [laughter]. But it’s a much more complex multinational setting.
The German constitutional court—similar figures; of course, they deal with many cases, but when it comes to real judgments, around 100, 120. U.K. Supreme [01:28:00] Court—same thing, I’d say, constitutionally. The only odd one out is the Belgian Constitutional Court, which has hundreds of cases—because it also has to decide on quite specific issues, on linguistic issues—but if you take the real principles, I would also guess that it would be around 100, 120. I think that’s also the maximum a constitutional court can deal with, especially when the issues are very delicate. They should take the time to deal with them. And then all the other issues can be dealt with by a more technical court.
But that’s, of course, crystal-ball gazing [laughter]. Well, we will see.
Katerina Linos: We are creating an archive so we can look back 20 years from now [laughter], to see whether you’re right. Thank you so much for joining us on Borderlines.
President van der Woude: Thank you for all your questions. Always interesting as a retrospective [laughter].
Mark Pollack: That was our interview with Marc van der Woude, President of the General Court of the EU. In the context of this [01:29:00] series, focusing primarily on the Court of Justice, it was especially valuable to hear how President van der Woude understands the role of the General Court as the Union’s administrative review court and its evolving relationship with the Court of Justice.
As you’ve heard, the interview caught the General Court at a remarkable moment of transition, as it sought to take on preliminary references from national courts for the first time and adapting its procedures, creating new specialized chambers, and preparing judges to serve as Advocates General in new areas of EU law.
His prediction that the General Court would eventually handle most preliminary references, leaving the Court of Justice to concentrate on a small number of genuinely constitutional cases, suggests just how far this institutional evolution might eventually go. On a more personal level, I was struck by President van der Woude’s candid account of his own winding career. He repeatedly described its decisive turning points as coincidences, yet his account [01:30:00] also showed the importance of mentorship, of developing areas of expertise that would open new doors, and of a repeated willingness to follow unexpected paths.
As always, we’d like to thank our producer, Toni Mendicino, our sound engineer, Keith Hernandez, and the many staff members of the Court of Justice and the General Court who made this and all of our CJEU interviews possible.
If you enjoyed this episode, please subscribe to Borderlines and stay tuned for more conversations with leading voices in European and international law.