Episode 16: Interview with Judge Niilo Jääskinen

Episode #16 March 13, 2026
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Show Notes

Borderlines CJEU Episode #16: Court of Justice of the European Union Series: Interview with Judge Niilo Jääskinen

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 #16 of the Borderlines CJEU Series features CJEU Judge Niilo Jääskinen in conversation with Professor Katerina Linos (Berkeley) and Professor Mark Pollack (Temple). Judge Jääskinen first joined the Court of Justice as Advocate General in October 2009, a position he held until October 2015. Upon return to his home country of Finland, he resumed duties as a judge at the Supreme Administrative Court of Finland from 2015 to 2019, where he was also Vice-President from 2018 to 2019. After his candidacy nomination, Judge Jääskinen was appointed as a Judge at the Court of Justice in October 2019, where he continues to serve.

The interview covers many key historical and legal EU developments, including Finland’s accession to the then-European Economic Area (EEA) in 1994 and to the European Union in 1995; the rare experience of serving as both Judge and Advocate General at the CJEU; and the ongoing balancing between rights and freedoms with security, encompassing both data privacy protection and criminal jurisprudence during the evolution of the Information Age.

Born in Mikkeli, Finland, Judge Jääskinen obtained his law degree in 1980, a licentiate in law in 1982, and in 2008, his Doctor of Laws degree from the University of Helsinki. Judge Jääskinen’s long and storied career includes many expert roles: in judicial work at the national level and in central government administration, as an academic scholar and teacher, and on the bench at Europe’s influential highest court. Featured highlights from his contributions:

Lecturer at the University of Helsinki and University of Lapland (1980-1986); Legal Secretary and acting Judge at the District Court, Rovaniemi, Finland (1983-1984); Legal Adviser (1987-1989), and subsequently head of the European Law Section (1990-1995), at the Ministry of Justice, Finland; Legal Adviser at the Ministry for Foreign Affairs, Finland (1989-1990); Adviser, and Clerk for European affairs, of the Grand Committee of the Finnish Parliament (1995-2000); acting Judge (July 2000 to December 2002), then Judge (January 2003 to September 2009), at the Supreme Administrative Court, Finland; responsible for legal and institutional questions during the negotiations for the accession of the Republic of Finland to the European Union (1992-1994).

Cases and sources mentioned in the podcast:

Select Publications and Speeches by Judge Jääskinen for further research:

Citation: Linos, Katerina and Pollack, Mark. Episode #16: Interview with Judge Niilo Jääskinen. Borderlines podcast, European Union Court of Justice Series (Mar. 13, 2026).
https://www.law.berkeley.edu/podcast-episode/episode-16-interview-with-judge-niilo-jaaskinen/

 

 

 

 


Episode Transcript

Judge Niilo Jääskinen Interview

Katerina Linos: [00:00:00] 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: Judge Niilo Jääskinen’s career spans the history of Finland’s membership of the European Union. Born in Finland and educated at the University of Helsinki, he served as a legal advisor to the Finnish government during the critical years of Finland’s accession to the European Union in the 1990s, including responsibility for some of its most difficult negotiations. He later went on to serve as Advocate General of the Court of Justice from 2009 [00:01:00] to 2015, then returned to Finland as judge, and later Vice-President, of the Supreme Administrative Court, before coming back to Luxembourg in 2019 to serve in his current term as a Judge of the Court of Justice.

In our conversation, Judge Jääskinen reflects on Finland’s path into the EU, including the nuts-and-bolts legal and socioeconomic questions that complicated Finland’s succession negotiations in the 1990s. He also discusses the distinctive roles of Advocate General and Judge at the Court, the relationship between national administrative law and EU law, and the evolution of data protection jurisprudence from Google Spain and the “right to be forgotten” to recent GDPR cases such as  Deutsche Wohnen and  La Quadrature du Net II. Along the way, he offers candid insights into fundamental rights, privacy, security, and the changing constitutional role of the Court in an era of democratic backsliding.

Katerina Linos: Judge Jääskinen, we’re delighted to be here. You just pointed us [00:02:00] to a photograph where a younger self has just completed some sleepless nights – the political agreement bringing Finland to the European Union. You’ve had this long career, as you worked as a judge in Finland; you prepared the accessions; you then served as Advocate General on this Court; went back [to Finland] to serve as a judge; now, are a Judge on this Court.

Could we start by hearing about how Finland became a member and what role you played in the accession negotiations? What were the issues that kept you up through the night at the time? What were the hardest issues?

Judge Niilo Jääskinen: Well, the Finnish accession should be put into broader context of the EEA [European Economic Area] process, which started some years earlier. So, as a parallel to the implementation of internal market by the Communities, as they were then called – EFTA [00:03:00] countries feared that they would be marginalized in Europe. And at the same time, the countries didn’t want to be EU members – EC members – with the exception of Austria. Then it was invented, or proposed, by Jacques Delors, this process, which led to the EEA Agreement, which was a very clumsy process. I have written an article lately on the rise and fall of the EEA Court, with the 30th anniversary of the Court; a Festschrift, so to say.

But the EEA process, its idea, was simply that the EFTA countries would take the Four Freedoms and related Community legislation as the price for having non-discriminatory access the internal market. So that was the origin. Then, as you know, such “small things” happened as, the Berlin Wall was torn down, there was German reunification, and there wasn’t a Soviet Union [00:04:00] anymore. So the whole geopolitical situation changed. And that meant that countries started, in a way, a race to the EU membership, at the same time as EU was rather reluctant to take new members because they had the Maastricht Treaty process ongoing and the internal market wasn’t ready.

But despite that, first Austria, then Sweden, started the negotiations, and then Finland was a little bit in a hurry. Our conclusion was that the window of opportunity is now and it will close within months, and then we decided to apply for membership. And then after, also, Norway applied, and even Switzerland. But Switzerland was very soon out, because of the negative referendum result concerning EEA Agreement.

So, the negotiations started. They were relatively simple, compared to previous accessions and later accessions, because much of the work had already been [00:05:00] done during the EEA negotiations. There were some hot potatoes left. Most difficult for Finland were agriculture and regional policies. Unlike Sweden and Austria, which were bound to become net payers from the very,very beginning, so they were very welcome [laughter] by many Member States, and they didn’t have such really existential problems. But for us, the agriculture, especially, was existential. Because if you look at the map, Finland begins where Sweden ends. We are north of Stockholm. Sweden up more north is simply Lapland. And Norway was a little bit similar situation, but then they had their own problems also, relating to fisheries, et cetera. So we had to find a solution for agriculture. That was the most important thing.

And then we had some tricky individual [00:06:00] issues, which were more legal, on which I was responsible. Namely, the special status of Åland Islands. Those who have read something about history of international law, it’s the only thing which is left of the League of Nations: the special status of Åland Islands. We had a constitutional constraint. We had to get also a separate positive referendum result from  Åland Islands.

So, in Finland, actually, there were two referenda. There was the national referendum, and then they had this small regional referendum. I was personally responsible for this file. So then I, in a way, had to negotiate at the same time with  Åland Islands and Brussels in order to find something which would be acceptible for the both of them. And then these negotiations . . . the political settlement was reached at this so-called marathon session, which started in 28th February, ‘94 and ended on 2nd [00:07:00] March. And as I said, we didn’t sleep [laughter] during that time.

But the problem is that the political agreement, it was in a way negotiated over the heads of the Commission. So, the Commission started quite an active campaign against certain points, which had been accepted by the Council, by the Member States, who were the formal negotiating partners. Because Act of Accession or Treaty of Accession is a treaty between the acceding Member States and the existing Member States. So, it’s not a Community Agreement.

And so, the final part for my personal sufferings [laughter] was that I had to represent Finland in the General Drafting Group and the Special Drafting Group for Agriculture, where we had to put on paper what has been agreed. The problem was that [laughter] the Commission didn’t want to put on paper what had been agreed. So, it lasted five weeks, before, [00:08:00] at the end, they came to the conclusion that they have to accept what has been agreed.

And then, there was a general time constraint. Elections of the European Parliament [EP] were forthcoming in May ‘94, if I remember correctly. The package had to go through the existing EP or it would be postponed one year. That’s basically what I did during those years.

A consequence of this experience is that, though I’ve been doing most of my life Community law or Union law, but I have never been such a blind enthusiast of “European Union,” because I’ve been negotiating with them and I know that it’s not a project where you are fulfilling great, idealistic objectives. Of course, that’s one part of the package, but the other part is that it’s very realistic. There you have State partners and Institutional partners and they have their rather egoistic interest. And then you have to find a [00:09:00] way to deal with them.

Katerina Linos: This is fascinating, and we’ll make sure to include in our show notes, both your article on the EFTA Court and this link to the Åland Islands case, because we have international lawyers as an audience, and we all teach about the 1910s, but bringing it to the accession negotiations and knowing that there was a separate referendum is very exciting.

Mark Pollack: It’s also going to put to rest, I think, any myth that the Northern enlargement was easy. It sounds like it wasn’t.

Judge Niilo Jääskinen: In that sense, it was easy, in that we really didn’t have any, so to say, objections. But what we wanted was that goals and objectives of the Common Agricultural Policy could also be met in Finland, in the situation where the growth season is perhaps one half of what it is in normal European circumstances.That was the major point. And of course, the regional policies related to it.

Though – those years – we had a very difficult economic situation, but basically, we were [00:10:00] a high-income country, but our problem was that regionally, we are an extremely huge country and very little people. This low density of population, it causes enormous side effects. You have to build quite expensive infrastructures for very little population. So if you look at the map, Finland is at the same latitude as Alaska. Because of the Gulf Stream, our climate is better, but nevertheless, we are high up there. At that time, most of the European maps didn’t even have [laughter] Finland. So, we were objectively in a different situation than, for example, Austria, for they had the problems which were more related to the constitutionally and internationally-guaranteed neutrality, which then was a problem when the Communities were heading towards common foreign and security policy. And [00:11:00] then for Swedes, it was more of the, I would say, “lifestyle” questions – the higher standards of protection of consumers, and that kind of stuff. Which at the end of the day, were not very difficult, because they were also long-term objectives of the Commission.

Mark Pollack: So, I want to turn to your time on the Court. But not yet as a Judge; you served as an Advocate General here prior to being a Judge. And we’ve spoken to many Advocates General and to many Judges, and we’ve heard quite a bit about how the life of an Advocate General is different from the life of a Judge. The Advocate General gets to speak singly, but does not participate indeliberations. I wonder what your experience was, in terms of the advantages and disadvantages of being an Advocate General, versus being a Judge on this Court.

Judge Niilo Jääskinen: Nice coincidence that we had this week the so-called Assemblée Générale of the Institution with all the [00:12:00] Judges and Advocates General, both from the Court and from the General Court. And the theme was “Advocate General.” Because due to the reform of preliminary rulings jurisdiction, when certain sectors have the competence transmitted to the General Court, then one part of the package is that some of their Members have to start to work as Advocates General, and therefore there was interest for this topic. I had the opportunity to speak about comparison between the two jobs.

As to the job of Advocate General, I have always said that it’s the best job a lawyer can have. In a way, you are doing research-based legal analysis concentrated on few difficult cases. You are not doing it just to write about it, but you are part of the decision-making process and you have your own audience, which are the Judges. And you need to [00:13:00] convince them, but at the same time, you are exposed publicly because your opinion is published. And then all the nice guys and ladies from the universities write how stupid you have been [laughter], how you should have proposed something else. That’s really the great point of being Advocate General.

But then, as one of my former colleagues who has also been Advocate General and Judge – he was Judge when I was Advocate General – he said once, “Do you like your job as Advocate General?” And I said, “Yes, this is the best job I could imagine.” And he said, “ You should apply for the post of Judge when the Finnish post becomes vacant/free because, you know, [lowers voice] Advocate General – you don’t have power like Judges.” [Laughter] And that’s, of course, the point: the Judges, they decide; Advocates General, propose. And that’s a huge difference. Advocate General is a lonely wolf who is, in a way, also a free rider, because [00:14:00] they don’t have to sit in the déliberé negotiations as the Judges [do]. So, they have much more time to give lectures outside. They don’t have to be here four days a week, like we have to.

But then on the other hand, Judges – we have much more, I would say, rewarding social environment because we are members of the same Five-Judge Chamber for three years in a row, and then we sit regularly at the Grande Chambre, the Great Chamber. So this means that we have colleagues and interact with them regularly. And that’s, of course, a completely different thing.

But, it also means that it’s not sufficient to be bright, as for Advocate General. You have to also be able to change your mind if you hear better arguments. And so, this negotiating – which is slightly different here than in Helsinki. Because in Helsinki, we had dissenting opinions. So, if you were [00:15:00] unhappy, then you wrote [laughter] your dissenting opinion, and informed your colleagues how they are committing a huge mistake. But here we have a constraint to try to be on board to the bitter end, in order to have our influence to the text of the judgment. As personalities, we Judges, we are not exposed to external critique, because nobody knows what we have really thought. It might be that even the juge rapporteur has a judgment which goes completely in another direction than he had proposed, but nobody knows.

Katerina Linos: I did to ask about this comparison between your work on Finland’s Supreme Administrative Court, before and after your time, and how you see the relationship between national administrative law traditions, EU administrative law – how does that compare?

Judge Niilo Jääskinen: That’s actually quite a tricky question, because until, I would say, 2000, the great majority of national [00:16:00] application of EU law took place at administrative courts, in countries where you have special administrative courts. In those cases in countries where you don’t have [administrative courts], they have usually some kind of specialized chamber for administrative law issues in general courts. And the administrative court jurisdiction during the British membership, also, in a way, was imported to Great Britain, where the Common Law system didn’t really have administrative law, in the Continental sense, earlier.

It’s always, in a way, compromise between two different points of view. The one is the control of legality, of exercise of public power, and the other is the protection of the rights of individuals or private persons, and “ legal person”, companies. In different countries, this balance between these two aspects is put into a different [00:17:00] place and it’s reflected then, for example, in the rules concerning standing.

If you have a very “legality control”-minded administrative law system, then it means that the rules of standing have to be quite liberal. But, if your focus is more on the protection of the so-called “subjective rights,” something which I [laughter] dislike as a term, then the question is, you have to show that you have, really, a right that can be infringed, before you can require legal protection by an administrative judge. These perspectives, they are present everywhere, I think. But as I said, the balance between them is different.

When we go to European Union administrative law – in the sense, “Which rules – for example, the Community agencies or Community institutions – apply?” – it’s not European; it’s implant of French [00:18:00] administrative law tradition. So, in that sense, it’s not European. Of course, it has influences from other systems’ principles. It has been richer, in that sense of the idea of transparency, which has come from Scandinavian countries, or the rights protection has been more the focus because of the German influences. But nevertheless, it’s a French system. So, in that sense, it doesn’t really affect the national systems.

What is affected is, then, especially, the Human Rights Convention and then the Charter [of Fundamental Rights]. And even before the Principle of Effectivity and Equivalence – they have, in a way, put a certain standard that has to be achieved by all national administrative law systems. So, in that sense, there is some kind of axiological harmonization of the systems. But, this said, what the [00:19:00] EU agencies do, what the institutions do, administratively – it doesn’t really affect Member States

Katerina Linos: I’ll ask two very small follow-on questions, and then move on to specific cases.

You said, “There’s this range of standing rules across the Member States,” and I’ve been very, very surprised with the standing rules in Germany, where any German citizen can challenge an EU act, directly or indirectly. Is Germany at one extreme, or are there several countries that allow for broad standing?

Judge Niilo Jääskinen: You have to have a subjective right. Basically, the German administrative jurisdiction tradition is based on the idea that administrative justice is there to protect the rights of the individual. So, you have to claim that you have a right, and then you can also challenge even legislative acts.

Katerina Linos: I’ll move on to some substantive questions on the cases. You mentioned Judge von Danwitz. He’s worked a lot on data protection. You’ve worked a lot on data protection. To me, in speaking to [00:20:00] Finnish friends, I am shocked at the degree of transparency that is the norm in Finland, as compared, again, to Germany. The idea that you can look up your neighbor’s tax return is just fascinating.

I’ll start with a case that is older. I’ll start with the Google Spain case, where you served as Advocate General. The Court did not follow your opinion; they ultimately held that search engines are data controllers and individuals have a right to request removal of certain search results – “the right to be forgotten” – which has since been extensively developed.

But as Advocate General, you argued for a different approach. You said that Google’s indiscriminate and random processing of data doesn’t make it a controller, that the secondary legislation required. And, you warned about the risks to freedom of expression if we had case-by-case individual removal decisions.

Can [00:21:00] you take us back to the time of Google Spain? How did you approach what was then a very novel question? And, what is it like as Advocate General where, in 20, 30 percent of cases, the Court goes in a different way?

Judge Niilo Jääskinen: I think that this percentage is perhaps lower nowadays than it used to be when all – also simple – cases had their opinions.

As to Google Spain and Google . . .  I’ve said to my family that when I die, you should engrave on my tombstone, “Here Lies the Advocate General Who Was Not Followed in Google Spain and Google,” [laughter] and then in brackets, “[Except for 25 Percent],” because, I was followed on the territorial jurisdiction.

But then, of course, the problem after that time was that, in a way, the Court chose a very literal interpretation of the Directive [00:22:00] and at the same time it was clear that the Directive hadn’t considered and couldn’t have considered search engines, because they didn’t exist. The Internet was there in some rudimentary form, but Google wasn’t there when this Directive 95/46 was adopted. Adopted. At the same time, there was legislative process ongoing towards GDPR [General Data Protection Regulation] and they were discussing about “Right to be Forgotten.” But it will be a different “Right to be Forgotten” then what was claimed by this citizen, who also really didn’t want to be forgotten, because he [Mario Costeja González] was giving press conferences [laughter] at the hearing at the same time.

I think that the problem there, for me, was that if you take a very black-letter law approach to Google and search engines, they seem to fulfill the criteria brought [00:23:00] by the definition. But then if you look at the rules – a huge majority of the rules cannot be applied to Google. And this is something which was also said much later by Advocate General Szpunar in this G.C. case.The very basic principle of data minimization – how could a search engine apply? That was perhaps the problem for me. In retrospective, I think, that, of course, the Court was more enlightened in that sense. If I remember correctly, my opinion came out before the Snowden revelations became public. And, I would say that around 2012, 2013, there was some kind of general loss in believing that Google would follow its motto, “ Don’t be Evil.”

In a way, the approach of the Court was tied to Digital Rights Ireland, et cetera. So, in that sense, the Court took a more protective stand than [00:24:00] I. I can fully understand why it was done. And then, this question of freedom of expression and freedom of information: I think that, perhaps, in the original judgment , they were a little bit . . . they didn’t get the balance quite right. If you look at the later cases – case law – G.C. and then also this one Google case, it’s Case C-460/20 – Google (Déréférencement d’un contenu prétendument inexact) [dereferencing of allegedly inaccurate content]. It’s the German case about internet information, about some businessman who obviously preferred not to pay his taxes [laughter] and that kind of stuff. The Court explicitly said that the balance concerns not only the right between data protection and right to receive information, but also the right to expression. I think that now this balancing is, in a way, comprehensive.

Katerina Linos: [00:25:00] I’ll move forward to recent GDPR cases. This jurisprudence is perhaps some of the most developed in California, where I’m based. We don’t know much about EU law, but we do pay attention to the GDPR. I’ll ask a specific question about the Deutsche Wohnen case, where you were Reporting Judge.

This is a €14.5 million fine. What’s interesting about the case is, again, this kind of balancing. It seems that in the business press, the companies were very happy that the standard was negligence, rather than strict liability. The data protection authorities were happy on the point that they did not need to identify a natural person, but a legal person might be responsible, and that would follow for fines.

Can I ask how you thought about this case? Just as an example of how you go through key considerations in [00:26:00] applying the GDPR to a new context.

Judge Niilo Jääskinen: Deutsche Wohnen, and in a way it’s not an isolated case. There was this sister case, the Lithuanian case C-683/21 – Nacionalinis visuomenės sveikatos centras [National Center for Public Health]. This Lithuanian case is actually the leading case about this question of negligence – that was at the core of that case – and the Member States were there, and institutions were arguing. The Council and some Member States said that the Member States want to have objective liability, or nearly, “fault based – not”-liability – concerning these administrative sanctions. And it is in that judgment where you can find the reasoning is developed, in the sense which was proposed by both Advocate General Emiliou in this case, and then Campos [Sánchez-] Bordona in Deutsche Wohnen case. There, the Court came to the conclusion that it’s a fault- [00:27:00] based system, and it would be, from the point of your protection of fundamental rights, slightly strange if you would have to pay 10 percent of your turnover fines [laughter] without having any kind of fault on your side.

But then the problem at Deutsche Wohnen is that in Germany, you have a very strong tradition which goes against punishing legal persons. I think that it comes from some kind of philosophy that, in order to do wrong, you have to have freedom of will. And you don’t have freedom of will if you don’t have soul.

And therefore, in order to be able to sanction administratively “legal persons” – you have to find some natural person who has, in a way, used his or her “free will” in a wrong sense. So, that’s the problem for the German Court, that their national legislature required that you [00:28:00] have to bind the guy who is guilty of at least negligence. And there the Court simply transposed the classic case law on competition law. In Deutsche Wohnen, it simply says that there is a standard of negligence. It’s fault-based, but the fault within these very, very complicated corporate structures. It doesn’t mean that you have to bind and fine an individual wrongdoer. It’s a way companies can do wrong, even if not a single person does it.

I personally imagine an example for that. You might have a majority rule in the company by-laws. And it means that [if] they never required the majority to adopt sufficient security measures for data protection, then it would be nobody’s fault. But then, as an organization, the company would not be able to fulfill its legal obligations. So, that that’s, in a way, [00:29:00] the idea there.

But, this said, I think that, insofar as GDPR is concerned, this is not so tricky as competition law. Because in GDPR you have a catalog of your obligations, what to do; and then, Article 82 on civil liability – which has more been my piece of cake recently than Article 83 – there, it has been quite clearly said that data controllers, they don’t have absolute obligation of security. What they have to do is to have an appropriate security level compared to the nature of the data processing. This means, for example, that there are situations where it’s really the data subject and not the controller who bears the risk. If you have these (I guess it’s come from California) “zero-day vulnerabilities,” when there are [vulnerabilities] in your software sandbox that nobody has [00:30:00] noticed except for the hackers, then if these are used by the hackers, it’s not the fault of the company.

But for the companies, they have to have appropriate data security programs they have to implement, and they have to update their systems, and if they have done [so], then it’s okay. In the same way, they are responsible for their staff. But, if they have given clear instructions to their staff, and if the staff obeys them, thenif there might be an individual breach by a staff member, it perhaps could be so that it’s not their negligence anymore. But, summa summarum [all in all], is that the standard in Deutsche Wohnen is exactly the same as in competition law.

Katerina Linos: This question of individual responsibility, and having a compliance system in place and making the CEO responsible for implementing this, is such a big reform. And, following the financial crisis in the U.S., we’ve made those moves similarly. But I really liked what you said earlier, which [00:31:00] was Google Spain was decided before Snowden. Google Spain was decided when we believed that Google had a slogan and was going to follow this slogan.

I wanted to ask about the evolution of data privacy protection law, where it’s already been and where it’s headed. In California, we focus a lot on Mr. Schrems. He’s another person who wants his name associated, as you said, with particular decisions. We focus on these negotiated transatlantic agreements, that then the Court comes and strikes down. I’m wondering how you see the role of the Court as guardian of fundamental privacy rights.

How do you see the role of the Court when the Commission doesn’t go as far as the Court, and agrees to something with the American authorities, that then the Court says [00:32:00] was not sufficiently attentive to fundamental rights?

Judge Niilo Jääskinen: The Court, or the Judge, we are paid for taking rights seriously. It’s a fact.

You might like it or not, but in the Charter, we have Article 7, which is the protection of family life and privacy, which has been interpreted by the Strasbourg Court in a very strict manner. And then we have this particular fundamental right on data protection in Article 8. So, these are the main rules.

And then, the point of having fundamental rights [laughter] is that they cause problems for executive and legislative branches of government. And so, perhaps, the problem is that the political institutions haven’t really taken seriously what they have adopted first, at the constitutional level, and then in GDPR.

Then, it’s a completely different question – which is more [00:33:00] for politicians – that is, this general balance between privacy and other values in the society, especially relating to law enforcement and external security, whether it [is] correct, or not, I think that the Court follows the philosophy, which was one of these external-aspect cases, that the exception cannot become the main rule. The main rule is the protection of privacy and data protection.

Katerina Linos: I loved what you said, that the executives find fundamental rights challenging. And you said, we need to balance data protection with domestic and foreign security needs. And I wanted to ask you about the evolution of the data privacy law in this domain. When we asked a lot of Judges, “Tell us about a case where there’s been a precedent reversal, where the Court of Justice says something differently today than it did 10 or 15 years ago,” [00:34:00] some have pointed to La Quadrature du Net as a case in which the French security establishment was initially not given a lot of leeway. And then, that was reconsidered, with the Russian invasion of Ukraine, with a new [U.S.] administration that maybe is not as committed to the security in Europe.

Is the Court likely to think about this question, of this balancing of rights, differently as the times change?

Judge Niilo Jääskinen: I wouldn’t think that this has anything to do with that kind of thing. The problem in La Quadrature du Net II, which was very well exposed by Advocate General Szpunar, was, are we creating a system where normal criminality cannot be combated when they move to the Net?

The problem is when this EU privacy directive is there, but then the other directive was invalidated by [00:35:00] the Court; there is lacuna in the legislation and the legislature hasn’t been able to complete the picture. Therefore, then the Court has introduced these qualifications: “particularly serious” in violations of privacy or the national security – “ particularly serious crime,” and “less serious crime,” et cetera. And these are, of course, something which, then, in some sense, are a little bit inoperative [inopérant(e)], as the French would say. You would need more explicit criteria. But, they should be given by the legislature.

And then, in  Quadrature du Net II, we had a situation where [laughter] the French legislature had, bona fides, tried to find a system where you can, somehow, by very, very gentle approach, remind people that, actually, you shouldn’t distribute – illegally – protected work in these [00:36:00] peer-to-peer networks. But, the problem is more general, and it’s this: Can it be so, that law enforcement can be effective only regarding the so-called “serious” crime, but not the “ordinary” crime? That’s the context which was addressed by La Quadrature du Net II.

Mark Pollack: Switching from case law and from data privacy to, in a sense, the big picture: The set of legal issues facing the Court has really changed over time. When I took EU law as a student, we were told that the ‘60s, and maybe the early ‘70s, were the age of the great constitutional decisions on supremacy and direct effect. The ‘70s and ‘80s were the period of internal market, and then there’s a kind of flowering from the 1990s onwards. I wonder what you think are the primary, either legal or constitutional, issues that the Court is facing today.

Judge Niilo Jääskinen: There has been a huge broadening of the scope of Union law during my active lifetime. In the [00:37:00] 1990s, I could still write that this is an economic “Zweckgemeinschaft” [a community of purpose], a community which tries to achieve certain relatively narrowly-defined, mostly economical goals. But that’s, of course, history. Now, the Union is present at every field of public action. On the other hand, its presence is mostly rather thin. And it means that, for example, if I look at my personal case load, where I see very much criminal law and civil law, something which was a rarity or did not exist at all 50 years ago. One part of this package has then been making the Charter binding by the Lisbon Treaty, which has, in a way, shifted the role of the Court towards a constitutional Court which is very much focused on protection of fundamental rights, and [00:38:00] then, unfortunately, also is required to enforce the principles of rule of law, which have been challenged.

Behind them, then we have, of course, a much more troubling problem, and it’s the same that you have in the United States: that Europeans are less and less attached to their liberal democratic values. Should we do what was proposed by Bertolt Brecht in 1953? “The people have spoken; let’s change the people,” if they cannot do it. So, that’s then, somehow, the problem of democracy, and balancing between values made by democratically legitimized political institutions, compared to the balancing which is then required by courts when they protect individual rights. That’s a problem where I think there is a quite a lot of potential for really difficult conflicts.

 

Mark Pollack: Obviously, [00:39:00] the agenda of the Court has, as you just said, expanded greatly. I’m wondering what are the possibly remaining issues or challenges that are going to face this Court that maybe we haven’t talked about. Or, to ask it another way, what do you want to leave our listeners with respect to what they can expect from this Court in the future?

Judge Niilo Jääskinen: Well, we have learned that you really don’t know the future, the changes are so dramatic and come so unexpectedly that it’s not fruitful to try to foresee the future. Personally, I’ve been a little bit outsider, all the time, because I started with legal theory, and I think that the legacy of Ronald Dworkin is bad. It’s this idea of individualism and fighting for rights, and then some kind of omniscient Hercules “J.” They’re [00:40:00] sitting on the Olympus and doing in practice something that the Warren Supreme Court used to do in the United States, with the result that you have [laughter] Trump as president. So, in a way, we would need to have some kind of new balance. Balance, in the constitutional landscape and mindset, which would leave more room for articulation of values for democratic processes.

I’m not speaking only of representative democracy, but, I could say, republican citizenship, in a very classical sense. That would require, then, also that the Court wouldn’t be the primary area for articulation of value conflicts in society. So, that’s, in a way, a formal legal positivist’s credo [laughter].

Katerina Linos: Thank you for connecting Ronald Dworkin to the Warren Court, to the election of Donald Trump [laughter], and [00:41:00] also proposing a more minimalist, or more attentive to the public, jurisprudence. Thank you so much.

Mark Pollack: That was our interview with Judge Niilo Jääskinen. What struck Katerina and me most about this interview was the extraordinary arc of his career – from sleepless nights negotiating Finland’s accession, to shaping EU law, first as Advocate General, and now deciding cases at the heart of Europe’s technological and constitutional future.

We will especially remember his wry observation, that his tombstone might commemorate him as the Advocate General who was not followed in Google Spain.” It’s funny – you heard us laughing – but it also captures the constitutional tension at the heart of the Court’s work: Advocates General illuminate the path, but Judges ultimately choose it.

Our producer for Borderlines was Toni Mendicino; our sound engineer was Keith Hernandez. As always, we thank the Court of Justice of the European Union and the University of California, Berkeley Law School for their cooperation and support. We’ll see you next time [00:42:00] on the Borderline CJEU Profiles series.