European Union Court of Justice Series: Interview with Advocate General Anthony Collins

Episode #15 December 19, 2025
Listen on:
Borderlines CJEU podcast cover episode 15

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 #15 of the Borderlines CJEU Series features CJEU Advocate General Anthony Michael Collins in conversation with Professor Mark Pollack (Temple University). Appointed by the Member States as Advocate General to the Court of Justice in 2021, where he served in that role until 2024, Advocate General Collins discusses his remarkable career, ranging from serving as a référendaire at the Court of Justice in the 1990s to becoming a judge at the General Court of the European Union in 2013. Advocate General Collins also highlights his experience at the Bar of Ireland as a Barrister-at-Law from 1986 to 1990 and from 1997 to 2003 and, subsequently, as a Senior Counsel from 2003 to 2013.

With such robust experience under his belt, Advocate General Collins provides a holistic overview of the Court’s inner workings, and specifically how judgments “are a collective effort” between judges and Court référendaires, lecteurs d’arrêts, assistants, and translators, in contrast to the independent responsibility for opinions by Advocates General.

Listeners will also come away with a better understanding of the General Court of the European Union, as Advocate General Collins illustrates how the General Court is both different from and similar to the CJEU. Additionally, listeners are provided with an inside look into cases such as C-204/21, Commission v. Poland (4), on which Advocate General Collins provided an opinion. In Commission v. Poland, the Court reviewed several issues, including how Poland’s Muzzle Law created the Extraordinary Chamber.

Advocate General Collins repeatedly draws upon cases such as Simpson and Commission v. Poland, to demonstrate that under Article 19 of the Treaty on European Union, Member States must ensure access to tribunals which are independent, impartial, and established by law. Finally, listeners will hear Advocate General Collins’ incisive perspective on the broader set of legal issues and challenges facing the Court today.

Advocate General Collins obtained his Degree in Legal Science from Trinity College Dublin. He served as a member of the Permanent Delegation of the Council of Bars and Law Societies of Europe (CCBE) to the Court of Justice and the European Free Trade Association (EFTA) Court between 2006 and 2013. Since 2015, he has also been an Adjunct Professor of EU law at University College Cork in Ireland. He’s the author of numerous scholarly articles. In 2024, Advocate General Collins was nominated and appointed as a judge to Ireland’s Court of Appeal.

Cases and sources mentioned in the podcast:

  • Links to C-204/21, Commission v. Poland (4) case, judgment of the Court and Advocate General Collins’ opinion

https://curia.europa.eu/juris/document/document.jsf?text=&docid=274364&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=11157468
https://curia.europa.eu/juris/document/document.jsf?text=&docid=268622&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=8330135

  • Links to C-6/64 Flaminio Costa v E.N.E.L. case judgment and Advocate General Lagrange’s opinion

https://curia.europa.eu/juris/showPdf.jsf?text=&docid=87399&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=8330135
https://curia.europa.eu/juris/showPdf.jsf?text=&docid=87318&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=8330135

  • Links to C‑430/21, RS Romania rule of law case judgment press release and Advocate General Collins’ opinion

https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-02/cp220031en.pdf
https://curia.europa.eu/juris/document/document.jsf?text=&docid=252467&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=8328008

  • Link to Article 267 of the Treaty on the Functioning of the European Union (TFEU)

https://eur-lex.europa.eu/eli/treaty/tfeu_2016/art_267/oj/eng

  • Link to Article 47 of the EU Charter of Fundamental Rights (right to an effective judicial remedy)

https://fra.europa.eu/en/eu-charter/article/47-right-effective-remedy-and-fair-trial

  • Link to Article 19 of the Treaty on European Union

https://eur-lex.europa.eu/eli/treaty/teu_2016/art_19/oj/eng

  • Link to C-542/18 RX-II and C-543/18 RX-II, Simpson joined cases judgment on judge appointment procedure

https://curia.europa.eu/juris/document/document.jsf?docid=224728&doclang=EN

  • Link to the Agreement on the European Economic Area (EEA)

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:21994A0103(01)

https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-06/cp220098en.pdf
https://curia.europa.eu/juris/document/document.jsf?text=&docid=254608&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=8335838

  • Link to the European Convention on Human Rights

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

  • Link to the Bar of Ireland (Law Library)

https://www.lawlibrary.ie/

Select Speeches and Publications by Advocate General Collins for further research:

Citation: Linos, Katerina and Pollack, Mark. Episode #15: Interview with Advocate General Anthony Collins. Borderlines podcast, European Union Court of Justice Series (December 19, 2025).
https://www.law.berkeley.edu/podcast-episode/european-union-court-of-justice-series-interview-with-advocate-general-anthony-collins/

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Episode Transcript

Advocate General Anthony Collins 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: In today’s episode, we’ll hear my June 2024 interview with Advocate General Anthony Michael Collins, who was then in the final months his mandate at the Court of Justice and is today serving in Dublin as a judge in the Irish Court of Appeal. In this interview, Advocate General Collins looks back over a remarkable Luxembourg career: from his early days as a référendaire or law clerk in the 1990s, through his service as a judge on the General Court, and finally as Advocate General at the Court of Justice. 

In our conversation, we talk about what référendaires actually do, how the General Court differs from the Court of Justice, how he understands the judicial role of the Advocate General, and why it can be a challenge to have French as the working language of the Court. We will also take a deep dive into Advocate General Collins’s Opinion in Commission v. Poland (4), one of the most important of the Court’s recent “rule of law” cases, and we’ll talk his Opinion in the landmark Préfet du Gers case regarding the loss of EU citizenship for British nationals following Brexit. As you’ll hear, Advocate General Collins brings to bear a wide range of experience at the Court, and his picture of its workings are among the most vivid you’ll hear in this series.

Mark Pollack: Thank you so much, Advocate General Collins, for speaking to me today. It’s an honor to have a chance to talk to you about your very long and rich experiences – experiences plural – at the Court of Justice of the European Union.

For the sake of the listeners, the reason I say plural is that, in addition to your initial legal training and your long career as a Barrister and Senior Counsel in Ireland, and as an Adjunct Professor at University [00:01:00] College Cork, you’ve served over the years in multiple capacities right here in Luxembourg: first, as a legal secretary or clerk, or référendaire, as one says here, to Judges T. F. O’Higgins and J. L. Murray from 1990 to 1997; later, as an advocate before the Court of Justice between 1999 and 2013; as a Judge, and then later President of Chamber at the General Court of the European Union here in Luxembourg from 2013 to 2021; and currently, since 2021, as Advocate General on the Court of Justice.

One of the questions that I have in mind whenever I speak to a Member of the Court of Justice is how they made their way first to European law and then to the Court. So, if I can start with this, how did you make your way as a young lawyer into EU law and to your first posting as a legal secretary here in Luxembourg, back in 1990?

Advocate General Anthony Collins: Well, thanks very much for that very kind introduction. I was always [00:02:00] interested in international questions. That’s the basis of my involvement in EU law. And from about 16 years of age, I was involved in school student politics, and I was involved in an organization which still exists, called the Organising Bureau of European School Student Unions. It’s a international, non-governmental organization, which, as I say, is still extant. I then was involved in the National Youth Council of Ireland, and finally I became a vice president of a body that has since been absorbed into other organizations; it was coordinating council for National Youth Councils in Europe, at the time, at the age of 19.

So, when I started law one of the areas I was principally interested in was international law. So, I took all the international law subjects I could in college, including at the time, European law. And European law was quite strange because only approximately 10 percent of the students did European law. It was a voluntary subject at the time. [00:03:00] And we received Rolls-Royce treatment from our then-lecturer Mary Robinson, who subsequently became President of Ireland. We had everything printed up for us and made available to us. [Chuckling] We were fed on a platter, but it still was only 10 percent of the people I was in class with at the time.

When I left University and did the professional training, I apprenticed with James O’Reilly, who was then a Junior Counsel, who was one of the few lawyers, barristers at the time, who did European law on a reasonably regular basis. But again, I would have said that if it was more than 15 percent of his practice, I would be surprised. But at the same time, there was a connection there as well.

I applied for the post of référendaire after I’d spent two years in the Law Library. It takes a long time to develop a practice as a barrister in Ireland. I was relatively quick – three years, four years – but I applied for the position with Donal Barrington when he was appointed Judge of [00:04:00] the Court of First Instance, as it then was.

He was amongst the first founding members, the founding twelve, but he pointed out to me that he needed to take someone on who was mother-tongue French because he had one référendaire, and French was the working language. But, as it happened, a vacancy arose in the Cabinet of Judge O’Higgins. A year before he left, one of his référendaires pursued an academic career and a vacancy came up, and could only be filled for a year. There was no guarantee. And the opportunity came my way and I took the opportunity. I have to say though that had the opportunity come a year or so later, it’s not clear to me that I would necessarily have taken it up because by that stage my practice would have been probably in such a state that it would have been very difficult to leave Ireland.

But one of the main regrets I had about becoming a lawyer in Ireland was that I would never work outside Ireland – and that’s not how it turned out.

Mark Pollack: [Laughter] [00:05:00] No, indeed not. So, let me follow up then by asking about your experience as a référendaire. It’s a large group of people here at the Court; they are central to the life of the Court, but I don’t think that outsiders know that much about the référendaires. In our interviews, everyone has been very complimentary about the référendaires, but not all of them have been on both sides of that relationship as you have. So, I want to take advantage of this interview with you to ask a little bit about what it’s like working as a référendaire. Other than long hours, what is your day like? What’s the relationship with the judge? And then now, how you see that from the other side as Advocate General.

Advocate General Anthony Collins: Well, it’s a very interesting question. I think that the work of référendaire has changed somewhat over the years in some ways, and in other ways it hasn’t changed at all.

Fundamentally, the position is one of trust between the Member and the référendaire. That’s the way it’s supposed to work. And if the [00:06:00] trust isn’t there, then generally the référendaire has to leave. There’s no way around it. Because I decided when I came here that I was going to leave here, I was not going to make a career for myself in the Court administration. I therefore knew that one day, I’m going to leave. That supported the idea that I can give completely independent advice. If the judge does not agree with me, fine. If the judge agrees with me, also fine.

Most of the time everyone agrees, not because of a feeling of consensus, but because most legal cases have a solution. And it’s a question of finding the solution. And if you go deep enough into the file, you will find a solution and persuading other people to go with it. The differences, I think, are overemphasized to some extent. Most of the time, you’re just getting the cases in, you’re getting the cases out.

Now, when I worked here, the Court was quite different, in the sense that it had a much more limited jurisdiction. Our bread and butter in the Court [00:07:00] was, as it is now, references for preliminary ruling. But the references for preliminary ruling we were dealing with were principally in areas such as the internal market. There were a large number of infringement proceedings against Member States in different areas. But if we take issues such as, for example, competences such as justice and home affairs, that didn’t exist at the time.

So it was narrower. There was certainly case law, but there was less case law. A lot of the time, you were being asked new questions on which you had to reach new decisions. There are large areas of case law that weren’t there. The same pressure of deadlines didn’t exist. Yes, there were dates given when things had to be done, but there was nothing like the pressure that exists today.

I would not say relaxed, but, in effect, people were trusted to manage their own affairs, if they, so far as possible, keep within the deadlines; and if they didn’t, then there might be gentle efforts to push them along. But no one was coming and saying, “Well, you haven’t done this by now.” There was much less pressure in that regard.

As référendaire, there were then two aspects of my [00:08:00] time: the first period and the second period. Why do I say first and second? Because the first period, I was learning the job. Again, it’s a testimony to the more stately approach that I was able to pick up French. I had French, of course, but I had more time to pick up French in the course of doing my job. I think nowadays people wouldn’t have the same opportunities. They would have to have a higher standard coming in, which in itself is a problem. Because I think that, as we know, a large number of people – French is the fourth language, fifth language, and therefore the use of French on an informal basis, as a working language, is an obstacle for those people coming into the system and then leaving the system, going back to their own national systems.

So that was the first part, and then in the second half of my time, I was here for roughly about six years, I was chef de cabinet of John Murray, and that is somewhat different because then you’re heavily involved in the recruitment of your colleagues. You’re involved in administrative matters. I always looked after questions such as visits from Ireland and [00:09:00] so on, which were rarer, but better funded in those times. And that required a certain amount of organization and arrangement. So I would have been   also involved in attributing the cases, management questions, which you don’t have, of course, when you were, let’s say, a standard référendaire.

How does it affect my working relationship today? Well, I appreciate very much what the référendaires do. But I remember not long after arriving in the Court in 1990 – again, the late Donal Barrington – described the relationship between judge and référendaire as the same as between senior and junior counsel.

Now that means something to us in Ireland, because we have a split legal profession. And when you are a junior counsel, you often appear on your own in cases, you look after the cases yourself. But if the case becomes sufficiently important or sufficiently difficult, you will then have a senior counsel. And you basically do all the backup work for the senior. The senior is the person who presents the case, who signs off on [00:10:00] everything, but you are the person who’s doing, let’s say, a lot of the donkey work [laughter], technical work, to make sure the case gets on in court.

The senior is always in charge. But the junior may, in some cases, in fact be effectively in charge, because the senior just agrees with everything that’s done. But in other circumstances, you can have a situation whereby the senior has to tell the junior, “Look, I don’t like this, I want it this way,” or even step in and do it himself: rewrite, reorganize, reframe everything. And I think that is the relationship. That’s the ideal relationship. Now, I’m aware of the fact that the référendaire–judge relationship, as I say, is highly personal. So therefore, the balance of power between the two, the relationship between the two, can differ from member to member.

But, ideally speaking, I think it’s the situation where the référendaire is the person who does the backup and makes sure that the senior, in other words, the member, can use a division of labor that [00:11:00] allows the member to make most effective use of his or her time.

When I came to the General Court, I would have been very familiar with some aspects of the General Court’s jurisdiction, but the other aspects, for example, trademarks, I knew nothing about at all. And so I had to learn, and I had to be guided by my staff. I wasn’t going to be in a position to say, “I think that trademark should be annulled because of this and this reason,” so I had to learn as I went along.

Mark Pollack: Does that affect, for you as a Judge on the General Court or as a Member here, how you choose your référendaires, what you need them for?

Advocate General Anthony Collins: Well, we have a tradition in Ireland, that the Irish judges, when we arrive in office, we normally inherit our predecessor’s cabinet and changes then occur incrementally over time as people leave. So when I arrived here in 2013, General Court, I had three référendaires, and two assistants. And within a [00:12:00] year, one of them was given an offer to work in the Commission’s Legal Service, which he couldn’t resist.

And I understood fully why he wanted to do it, it made perfect sense from his point of view. So, obviously, I supported this, but I remember having difficult enough negotiations. The Commission wanted him yesterday [chuckling] and they were claiming that the Union would collapse without his services, and I had to say, “Sorry, there are things that have to be finished off here” – because I inherited quite a large backlog, which was, by the way, not uncommon at the time.

Mark Pollack: Right.

Advocate General Anthony Collins: When I arrived at the General Court in 2013, everyone who arrived had a massive backlog. It didn’t matter what nationality you were either, it seemed to be very common.

I needed to find someone. I recruited someone without running any sort of competition, and he became part of the team. Then down the line, another référendaire became a civil servant here after, I think, about three years, and she had to be replaced, and they found another  référendaire to replace her. All done very informally, more or less.

When I came to the Court here, I brought a lot of my cabinet with me, [00:13:00] which meant that my predecessor’s cabinet went elsewhere. I’m aware of the fact that people have different approaches. But there is something of an established Irish tradition that you see what you have first and move on from there.

Mark Pollack: That’s very helpful. You’re not the only Judge or Advocate General on the Court of Justice who served on the General Court, but you are one of them. And I think many of our listeners will be familiar with the General Court largely from competition policy cases. But for those who aren’t already familiar, can you give us a quick sense of how the work of the General Court is similar to/different from the work of the Court of Justice?

Advocate General Anthony Collins: Well, the General Court as it was during my time there, and still is as of today, is charged with reviewing the legality of decisions taken by the European Institutions, which are capable of being challenged by way of direct actions. I think it’s important [00:14:00] for listeners to understand that EU law is normally implemented by the Member States. So when people speak of directives in particular, but even regulations, for those to bite on individual circumstances, they require action by Member State authorities. It’s only through challenging the legality of the decision of the Member State authorities that EU law comes into play. And that procedure, of course, is by way of references for preliminary rulings from national courts. They go, at least as we speak today, directly to the Court of Justice.

The General Court deals with circumstances where, in various areas of EU law, notably, as you mentioned, competition law, state aid law, trademark law, cases involving the staff of the Institutions, certain types of grants, contracts entered into by the Institutions – it’s the EU that takes the decision, and it’s the EU law decision that bites directly on the individual. And in order to [00:15:00] ensure that we are operating a system under the rule of law, those individuals must have the right to directly challenge the legality of those decisions.

What are they waiting for, some decision by a national implementing body? There may be no national implementing body. Or if there is, it will be down the line when the State comes to collect the money that shouldn’t have been paid by way of state aid. Why shouldn’t they have a direct right of recourse?

The principal function of the General Court, therefore, could be described to some extent, as an administrative law Court that deals with a commercial subject matter, but it affects a subset of EU citizens. And for that there’s a clear difference because this Court, the Court of Justice, deals with appeals in the General Court, and over time, the number of areas in which appeals are allowed has been reduced considerably.

Mark Pollack: Well, let’s pivot then to this Court [the Court of Justice]. You serve on this Court in the position of Advocate General, which is a vitally important position but one [00:16:00] that’s, I think, poorly understood outside Europe and sometimes within Europe. I wonder if you can say a little bit about the role of the Advocate General in the life of the Court. In particular, given that you’ve served as a judge on the General Court, how it compares to the work of a judge. Not just the daily work, but also perhaps the philosophy of judging might differ among those two positions.

Advocate General Anthony Collins: I think they’re combined. The daily work and the philosophy of judging are intimately linked, such that they’re intertwined.

First, very important point to remember about Advocates General are that it is a judicial role. Some people don’t really seem to get that. They seem to think that Advocate General is here really to dress the room, to give options to the Court as to how it might decide a case – it’s a type of preparatory work, and then the judges decide the case.

No. The Advocate General, even if it’s implicit in the word “advocate” – it’s a judicial role, whereby you must take a position on a case, and you must explain, so [00:17:00] far as one can, to the Members of the Court in a way that they are able to digest, why that position ought to be adopted. And then, because that judicial viewpoint is made available to the public – translated into the language of the Member State, and so on and so forth – people have access to the decisions. People can then afterwards look at this and say, “Well, that’s what the Advocate General thought in the case.”

The Court can decide to disagree; the Court may decide to follow the Advocate General in part. The results may be the same, but the reasoning may be different. But they can then look at that judicial decision and say, “Okay, well, in effect what we’re saying here is that the Advocate General thinks the case should be decided in this way. The Court, for whatever reason, has decided it should be decided in that way.” But both positions are, intellectually, equally valid. And sometimes, I think it’s fair to say that the Advocate General’s positions are sometimes more coherent than those adopted particularly by larger formations of the Court.

Mark Pollack: I’m not surprised to hear you say [00:18:00] that, but I’m not sure our listeners will understand why the Advocate General’s position is more coherent. Can you say more about that?

Advocate General Anthony Collins: Yes, because the Advocate General only has to basically look into his or her inner forum [laughter] and decide what the case is about and how it should be decided.

As matters stand, the Court of Justice sits in one of four formations. One of the formations is a formation of three judges that normally deals with cases which are ruled by the existing case law where the outcome really cannot be in doubt. And as I’ll come to later in terms of the Advocate General’s opinion, the Advocate General doesn’t write an opinion but has agreed with the reporting judge as to what approach should be adopted in the case and sent that forward to the General Meeting of the Court. All the cases are processed by the General Meeting of the Court, where the members of the entire Court, Advocates General and Judges together, at the very least comment on the solution proposed by the Advocate General and the [00:19:00] Judge.

A Chamber of five judges is for cases where perhaps new issues may arise, where the case law needs to be developed, but in a context where you have well-established case law. You might have, for example, value-added tax – if it’s very clear, we can go to a Chamber of three judges. But there are always new questions coming up in the area of tax, even if the law doesn’t change that much. The inventiveness of tax lawyers is something that must be praised [chuckling], and this results in a situation in which it often goes to Chamber of five Judges.

When it goes to Chamber of five Judges, then of course the Advocate General may be called upon to give an opinion publicly in the case – or again, maybe not – and then we come to the so-called Grand Chamber, which is 15 Judges. And then of course, you can have 27 Judges sitting in the plenary.

But all of these involve more than one person, and they have to reach some accommodation between themselves. The Advocate General doesn’t have to reach accommodation with anybody other than themselves. So, of course it’s going to be more [00:20:00] coherent. It ought to be, anyway.

Mark Pollack: There are going to be compromises raised and issues papered over in the judgment, that you can speak more bluntly about.

Advocate General Anthony Collins: Yes. You’re giving an independent opinion on the issues raised in the proceedings. And as I say, a lot of the Advocate General’s work now has become invisible to the public. Going back to my days in the 1990s, the Advocate General wrote an opinion in every case. In fact, if we go back even further to the 1980s, the Advocates General used to read their opinions out in front of the judges in their mother tongue. Judges would have to trot down to the hearing room, and they would listen to interpretation. And even on the most minor case, even an uncontested infringement proceeding against a Member State, the Advocate General would give a two- or three- or four-page opinion, saying more or less the same as what the judgment would say.

That’s gone. We now only write opinions in cases where there is a new point of law, sufficiently new that it should have an opinion, where the case has a certain importance, I can put [00:21:00] it this way, either legally or one could say politically with small “p.” It’s not always the case, but generally, in the Grand Chamber, you’d have an opinion; where the Advocate General doesn’t agree with the reporting judge; where the Advocate General wants to write an opinion, irrespective of what the reporting judge wants.

Mark Pollack: And there’s a tradition, I understand, that if the Advocate General believes there’s a need for an opinion, the Court will grant that.

Advocate General Anthony Collins: Yes. On the other hand, you have situations where if you look closely at the case, you can see the opinion is not necessary. Again, it’s interesting that judges prepare preliminary reports. The bread and butter of the référendaire’s work is the preparation of preliminary reports, which consist of a digest of what the parties have argued, and then the position of the judge on the various points. These are now quite detailed documents, and a lot of effort and time goes into them.

The Advocate General, on the other hand, [00:22:00] takes this document and looks at it and examines it in the light of the file. So the burden on the Advocate General, to some extent, at that stage, is lighter. However, the Advocate General is in a position to say “No, I don’t agree,” or can say, “Well, I think there’s an interesting aspect of this that needs to be developed.” But the fact that you don’t have an opinion in each case means that you can have cases even dealing with new points of law where there’s no opinion, and that’s basically because the Advocate General and the reporting judge have reached a certain conclusion, “There’s no need for an opinion here.” So it will go to délibéré and hopefully the reporting judge will get his or her way, because, in principle, there’s a possibility the reporting judge may find out that he or she is in a minority. In which case, there was no opinion written, and the judgment contradicts what the Advocate General thinks. I’ve not seen any instance of that so far, and I think it’s very unlikely to happen. But in principle, it could happen. You don’t see the Advocate General now — the work goes on, but it’s not [00:23:00] quite as visible as it was.

Mark Pollack: One thing that I think is also not visible, in the sense that I had no idea it was true until much after I took my EU law class, was that, in fact, the Juge Rapporteur’s preliminary report precedes the Advocate General’s opinion. How do you think about what those two documents do? Are they essentially parallel in terms of their construction and purpose?

Advocate General Anthony Collins: No. I think the purpose of the two documents is completely different. The main purpose of the preliminary report is to introduce the case to the other Judges – other members, I should say, because it goes to all the members. If you want to take a view on a case, you do not have the time to read all the files of every case, so you’re dependent on what the other Judges and Advocates General have agreed in the report.

But it is always the report of the judge, not of the Advocate General. The Advocate General, at [00:24:00] that time, does not even have to say whether he or she disagrees. All he or she has to say is that “I would like to write an opinion.” Or it is agreed between the Judge and the Advocate General that an opinion is necessary. Or that another Member of the Court thinks an opinion might be necessary. That can happen too sometimes: the Advocate General and Judge are agreed, “no opinion,” and someone else says, “I think you should have an opinion,” and the other colleagues will agree.

The opinion is a completely separate piece of work. I start from scratch. I produce my own statement of the facts and of the legal background, and that’s what’s published publicly. The preliminary report, as you may have observed, is not for public consumption.

Then I give my view, of course, after the hearing. At that stage, the case has moved on, it’s developed. It’s interesting to see that sometimes cases can take a life of their own, and what may appear at the stage of the preliminary report to go one way, by the time the process is finished, the Advocate General may go a way that even the [00:25:00] Advocate General didn’t necessarily conceive at the time that he or she agreed to the report.

I’d also say that, particularly to a common lawyer, you might look at this and say, “Well, everything’s been cooked in advance,” like it’s all done in the written procedure. It’s very important that lawyers put their best foot forward in the written observations so the Court can see where the case is going. But the case doesn’t end at the General Meeting of the Court, when it’s decided the case is going to a Chamber of five Judges. It doesn’t end at all. I had one recently, where my own view is that the preliminary report did not seem to really get to grips with the case. I’ve come to what I think is the correct solution. I’m not at all sure what the Court is going to do with the case. But at the hearing, my position was affirmed. Not in an abstract way, but I asked certain questions of the parties. I got the answers I wanted. So, that confirmed that what I had thought was a good idea. Whether the Court follows me or not, I don’t know. I have no visibility on that.

And that’s another interesting aspect about the work between [00:26:00] Advocate General and Judge. I had sort of thought, “We’re all members.” We all take an oath. We therefore can’t disclose the secret of the délibéré outside, and we don’t. And even if one is very critical of Court judgments, that’s another benefit of being Advocate General. I personally think the Advocate General’s duty is to say, “I think that judgment of the Court is wrong.” Not a question of saying, “Oh, you must look with loyalty to the institution.”

The Advocates General are paid to be independent. I’m paid to say this publicly. So, if I think it’s baloney, it’s baloney, in my view. Now, we’ll see what people think. But it gives you a certain independence. I find it very interesting that, in general, we are just as ignorant about what goes on in the deliberations as the general public.

Beforehand, you can have informal exchanges with judges, even at the break at the hearing. “What do you think of this?” “Well, I think this argument is bonkers.” “I’m sorry, I’m going to say this anyway.” [Laughter] But once you’ve written it, it goes to délibéré and you hear no more until the judgment comes in. Sometimes you hear [00:27:00] whispers, you hear a little bit, but very, very little. I don’t think that’s a bad thing, but I just didn’t anticipate that. I thought there’d be more permeability. Because of course, once the délibéré has made its decision, it doesn’t matter what the Advocate General thinks anyway. But the fact that you don’t have that dialogue – I think the system really functions, is what I’m saying. That barrier is actually there.

The other thing I would say is the differences between Advocate General and Judge – well it’s like two sides of the same coin. You have the disadvantage that you don’t have colleagues in the same way. You’re not discussing cases with your fellow Advocates General, because they are writing their cases. We never get involved in discussing our cases in any depth. And you don’t have délibérés, so you don’t have colleagues in the same way. You’re left on your own.

On the other hand, there’s the advantage that you don’t have to sit at long délibérés. I learned an awful lot from the Danish judge, Sten Frimodt Nielsen, my first President of Chamber. I learned from him how to be President of Chamber. The one thing was, do your homework first. So, read the papers. Secondly, if it’s about [00:28:00] commas, or putting one sentence in front of another, let the référendaires do that. At the end of the day, the lecteur d’arrêt will check that things are okay. We are at the délibéré to discuss the case. I think that’s how délibérés must be run.

That’s another huge difference between the Advocate General and Judge. It’s my personal work. What I sign, I agree with. I am attentive to make sure that I put my best foot forward because I know I am the person who is on the line. If you see something written down and I’ve signed it and you say, “That does not make sense,” I have to take responsibility. In fact, you have the service that reads judgments before they go out to ensure they conform with the House style. We do not have that service for the Advocates General.

Mark Pollack: Oh, interesting.

Advocate General Anthony Collins: We do our own editing. In fact, it had a major impact on my staffing, in terms of assistance. Because when I was a Judge, my assistants need to be administrators. Yes, they did have to proofread things and so on and so forth, but if something happens, it’s not the end of the world. If it slips with me, it slips. So, I have to have proofreading capacity in the system.

All the judgments of the Court are ultimately a collective effort, in a way that the Advocates General’s opinions are not. Translations, for example. I’ve written a couple of opinions through French and I have taken great care to ensure that the English language translation effectively conforms to my style of English and is not a translation. I’ve only done it about three times, but if it’s written in French, I have get my teeth into the translation and in fact, often write a translation, which is I think saying exactly what I thought I said in French. Because when you read a translation from French to English here, not all the time, but quite a lot of the time, it takes some of the flavor from the original.

Mark Pollack: Certainly.

Advocate General Anthony Collins: And I try to get rid of that because I’m writing an opinion. A judgment here is a collective effort between the référendaires, between the  lecteurs d’arrêts, between the assistants, between the translators. The judges [00:30:00] sign it, but it’s a collective effort. Advocates General sign something on their own responsibility for themselves, and they’re meant, therefore, to sit at a slight distance. And they’re meant to look at things independently, because they are personally responsible for what’s coming out.

Mark Pollack: This is already very concrete, but I think we can make it even more concrete by talking about a particular case. I confess that the case I’m going to ask you about is not necessarily representative of the cases you encounter daily. But the issue of the rule of law is a major feature of this Court.

And you were the Advocate General in a case called C-204/21. This was an infringement case from the Commission, the so-called Commission v. Poland (4), which concerned the compatibility of the Polish reorganization of the judiciary with the Treaties. So, if I can ask how you approached this case [00:31:00] and how you reached your opinion?

Advocate General Anthony Collins: I think that the first thing that one has to bear in mind is the nature of the proceedings in question. Infringement proceedings – particularly when I go back to the old days: many uncontested infringements. For example, Ireland fails to adopt a directive in time, the Commission writes the warning letter, then they write the reasoned opinion, and Ireland still has done nothing, and the Court is then asked to give a judgment. Now, that can result in fines, but we needn’t go there for the moment. At all stages in that type of procedure, it’s relatively straightforward, but the onus is always on the Commission to prove its case. That’s sometimes overlooked.

Mark Pollack: Right.

Advocate General Anthony Collins: The second feature of these cases that’s very important, which is a big difference, is: in references for preliminary ruling, national law is determined by the national courts. Sometimes there can be a bit of overlooking in that regard, but in my opinion, it is a constitutional issue.

I think sometimes the Court is inclined to forget a very important aspect. [00:32:00] It, too, has a limited jurisdiction. It does not have an inherent jurisdiction. It, like all other Institutions, is conferred with powers from the Treaties by the Member States. In infringement proceedings, the Court is called upon often to interpret national law. And that’s what happened in this case. The Commission comes before the Court and says, “Poland has a law that says that if you import, if you sell, butter in Poland, it must bear a little stamp indicating which Member State it comes from”. The Commission has to come to Court and say, “This Polish law says this.” The Polish government may say, “No, it doesn’t mean that at all, it means something completely different. In fact, there’s no little mark at all here.” So, we would [00:33:00] be called upon to interpret national laws. The Court is dealing with a direct action, similar to the General Court.

In fact, one of the proposals made, and it’s still there, is to transfer jurisdiction to hear certain infringement proceedings from this Court to the General Court. Because the General Court is better suited to find facts than this Court. The reason that hasn’t been done is basically political, because the Member States insist on having a right of appeal in all cases.

All that would mean is that instead of a decision being taken in two years, it would take five. The role of the Court is very different than it is in references for preliminary ruling.

The Commission lays its case before us. The onus is the Commission. It has to respect certain procedural requirements: the warning letter, the reasoned opinion, and the application must [00:34:00] be continuous. And sometimes the Commission has to send a new warning letter if something else happens. They can’t simply rely on the old one and say, “Oh, that’s what we meant to say.” [Chuckling] So it’s quite a formal procedure.

The reason I’m pointing this out is because what happened in this case was that Poland introduced its so-called Muzzle Law. It was called “the law amending the law on the organization of Ordinary Courts.” The Commission made five complaints in relation to this Muzzle Law. Three of the complaints were connected. Two were, relatively speaking, from a legal point of view, separate. It has to substantiate those complaints, and of course, in a direct action, one of the main things that will immediately arise is whether or not the procedure has been correctly followed.

Before we get into the details of the case, I think it might be important for the listeners to understand [00:35:00] something of the background to the Court’s case law in this area. Effectively, since the Portuguese Judges case, the Court has asserted a jurisdiction based on Article 19.1 of the Treaty on European Union, to the effect that the Member States must, in their legal orders, ensure access to independent impartial tribunals established by law.

It stems from Article 19, but there is also Article 47 of the Charter: the right to an effective judicial remedy. Article 19 has to be read in the context of Article 47. But Article 47 normally comes into play, as we know, like all other provisions of the Charter, when the Member States are implementing EU law. When the Member States are organizing their internal legal orders, they are not usually implementing EU law. Therefore, the Charter must play a subsidiary role. Article 47, therefore, is read in the context of Article 19. And then, we have also the question of [00:36:00] primacy of EU law. This is a fundamental principle recognized in treaties, going back to the Costa v. ENEL judgment, but again, Member States are required to respect primacy. Let us say, these are the essential features.

The Commission’s case here is effectively a complaint that Poland has failed to comply with those provisions. It brought five complaints. Two of them were relatively straightforward although the case was quite complicated.

One of them was effectively based on the activities of the Disciplinary Chamber of the Supreme Court. Poland has the Supreme Court, much larger than the Supreme Court we would think of in the common law world. One of the Chambers was the Disciplinary Chamber, and dealt with all disciplinary questions concerning the activity of [00:37:00] judges. The Court had already condemned the Disciplinary Chamber in previous proceedings, and in effect it was the interaction of this Disciplinary Chamber in the context of the new law that the Commission sought to have condemned. It wasn’t very difficult for me to follow the existing case law of the Court.

There was a second issue. The Polish government introduced a rule requiring judges to provide information concerning all professional organizations they’ve been a member of, any voluntary organizations they’ve held positions in, any membership of any political party, within 30 days of being proposed for nomination and to have it published publicly before they took office. Did that comply with the [00:38:00] GDPR – General Data Protection Regulation – and/or provisions of the Charter? And again, my reasoning and the reasoning the Court followed was to say, this is basically disproportionate. There may be a legitimate aim in ensuring that the public are informed of the background of judges, but publishing all this type of stuff could be met in other ways than that which the Polish government had proposed. It was fairly obvious what the Polish government was trying to get at here, and I think it was illegal in any case.

We went down to three complaints which were basically interlinked. The Muzzle Law created the Extraordinary Chamber of the Polish Supreme Court – the Commission attacked [00:39:00] three aspects of the Muzzle Law in this regard. The Extraordinary Chamber was created for the purposes of dealing with not only the management of the judiciary, but also to deal with all sensitive administrative matters. For example, this Extraordinary Chamber also had jurisdiction in actions taken against decisions of regulators in the sphere of telecommunications, competition, other areas – you can imagine, very sensitive politically and economically.

Mark Pollack: Right.

Advocate General Anthony Collins: And the Extraordinary Chamber was the Court to which all issues concerning the management of elections. When it was created, new judges were appointed to it all supporters [00:40:00] of the government party. Effectively, a new Chamber of the Supreme Court created in order to ensure government-leaning, if not government-loyal, judges dealing with areas of relatively high political sensitivity.

The Commission made three separate criticisms of the Polish law in that regard. First of all, they criticized the limitations that were put on the jurisdiction of the Extraordinary Chamber. The Extraordinary Chamber could not deal with the question as to whether a judge had been properly appointed or not. The Commission said, “This is against Article 19,” because, under the Simpson judgment, every Court must be able to verify whether or not it is independent, impartial, and established by law. [00:41:00] Here we’re dealing with “established by law.” Even though the Extraordinary Chamber had a monopoly of dealing with these questions, it could not deal with some of these questions. That was the first criticism.

The second criticism was to say that the Extraordinary Chamber was given exclusive jurisdiction in this area. So, for instance, if you went to a local court in Poland and, as a preliminary issue, raise the question as to whether the judge was independent, that issue had to be sent to the Extraordinary Chamber. The judge could not rule on the issue themselves.

Finally, the examination of the issue by a court other than the Extraordinary Chamber as to whether judges have committed disciplinary offenses.

In my opinion, I tried as far as possible to give a synthesis of the existing case law at paragraphs 46 to [00:42:00] 61. Partially, satisfying myself that I understood exactly what was going on, and partially because I felt that this thing was completely incomprehensible unless it was set out in the opinion what the current state of the case law is.

A lot of these cases happened by means of references. And references – as is well-established – the facts are established by the domestic court. The Court answers those questions. This meant that you had a considerable amount of quite complicated, complex, relatively inaccessible case law.

I tried to set the scene in those paragraphs, and then I took the second complaint first, [00:43:00] which was the question concerning the exclusive jurisdiction conferred on the Extraordinary Chamber. As I said, that meant that no matter where issues concerning independence, impartiality and establishment by law were raised, they had to go to the Extraordinary Chamber.

As I explained a few moments ago, the Extraordinary Chamber consisted of government loyalists. The Commission didn’t plead that fact in the case. They introduced that element at the stage of the reply. And under the rules, as I pointed out already, that means it’s inadmissible.

So the plea that “this structure is there, and it’s rigged” – we couldn’t deal with “it’s rigged.” So I recommended to the Court, “This doesn’t comply with admissibility rules,” and the Court followed me in that regard. As you can see, we couldn’t deal with it because it hadn’t been pleaded properly by the Commission.

That comes back to the nature of the [00:44:00] proceedings in question and why the procedural aspects of complicated infringement proceedings can have a major bearing on how they’re decided. I took the view that a national procedural rule that reserved such questions to a given court was not necessarily incompatible with Article 19 of the Treaty. If a Member State wishes to reserve certain questions to certain courts, and provided those courts are independent, impartial, and established by law, why not?

I started with the second complaint because I knew I was going to dismiss it. Then came the limitations on the jurisdiction of the Extraordinary Chamber, the first complaint. I look at the first complaint second. And again, there was an admissibility point that the Commission threw in Article 267. They said, “The rule is in breach of Article 19, as read in the context of Article 47 of the Charter. It’s also against Article 267.” Again, there was a problem with the pleading. Basically, the Commission didn’t put this up front. It was referred to, and they didn’t substantiate that argument in their pleadings. So, we declared – or I proposed the Court declare – inadmissible the argument based on 267 in the context of the first complaint, which again, I think was followed.

Mark Pollack: Right.

Advocate General Anthony Collins: The only issue before me [00:46:00] was does a rule that limits the jurisdiction of the body – conferred with exclusive jurisdiction to hear questions concerning the independence, impartiality, and establishment by law of a Court – the Extraordinary Chamber – contrary to Article 19 of the Treaty in European Union as read in the context of Article 47 of the Charter? And my recommendation to the Court was to say, “Yes.”

Then there was the third complaint. And that was where, in effect, if a judge didn’t refer the case to the Extraordinary Chamber, but decided on his or her own motion to entertain a point going to the independence, impartiality, or otherwise – was that a disciplinary offense? I took the view that this seriously undermined the rule of law [00:47:00] in Poland. In other words, if I act ultra vires in this particular area, because I’m supposed to send it off to the Extraordinary Chamber to deal with, but I decide to entertain it, I can be disciplined. That was clearly established for the purposes of preventing judges entertaining the question at all. Even if they obeyed the Polish rules and sent it off to the Extraordinary Chamber, by considering it themselves at any stage, they ran the risk of being disciplined.

For that reason, I proposed to the Court that it deal with the third complaint. In summary, I proposed to the Court that one complaint be delimited in such a way that I felt that then it did stand up. A [00:48:00] third complaint was effectively taking a look at the reality of things. That’s why it was called the Muzzle Law. It was to keep control of judges.

Then, of course, there were the two complaints I dealt with first. The one concerning the GDPR was a new aspect, but I think it was reasonably easy to see where one would go with that. As regards the fourth complaint, I think it was a question of applying the established case law of the Court, which had made it clear what the position was.

When we came to the judgment, the Court took a slightly different approach. It was couched in a slightly different way. Basically, it was to deal with an argument that the Polish government made, that the principles of conferral and national identity precluded the Court from [00:49:00] entertaining the case at all, and they were addressed at paragraphs 60 to 80 of the judgment.

My general part addressed those issues as well. In effect, both parts play a very similar role, except the Court conditioned it by way of an answer to preliminary objections, and I conditioned it by saying, “ These principles of conferral and national identity in the Treaty of European Union do not conflict with the rule of law, which is also respected as the value of rule of law in Article 2, and then Article 19, which gives concrete expression to the rule of law.”

The rule concerning infringement proceedings is very simple. The state of law and facts are determined as of what’s called a reasoned opinion. That’s why the reasoned opinion and the pleadings have to coincide. Poland said they abolished the Disciplinary Chamber on [00:50:00] foot of the earlier Court case law and therefore, there was no purpose in dealing with the fourth complaint.

The Court’s answer to that was: “Sorry, the procedure was such that you’re dealing with this as of the recent opinion.”

The Court then dealt with the fourth complaint, which was relatively straightforward to deal with. It then went to deal with, interestingly, the third complaint. They followed my opinion in that regard because, as I had pointed out, the effect of the Polish rule – that if a judge considers or rules upon independence, impartiality, establishment by law, [00:51:00] they commit a disciplinary offense – weakens judicial protection, because you run the risk of disciplinary procedures being taken against you, by entertaining such points and then ruling on them in any way.

The other thing the Court added was that this was a bit of a thin end of the wedge that could lead to the making of references being treated as a disciplinary offense. There were a number of cases in that regard, one in particular, the RS judgement arising from Romania, where this specific point had arisen.

A judge cannot be disciplined for exercising his or her jurisdiction under Article 267 of the Treaty by making a reference [to the Court of Justice]. Then the Court came to the first complaint limited to Article 19 and ruled against Poland.

And then we come to the second complaint. The Court agreed we cannot take account of the fact of the composition of the Extraordinary Chamber because the Commission didn’t plead it until the stage of the reply, therefore, it’s not in the procedure. But it found for the Commission on the substance of the case.

On my reading of the judgment, I’m not sure that it [the Court] met the standard required of infringement proceedings. It concluded that it weakens the effectiveness of the review of the observance of the fundamental right to judicial protection. Is that sufficient in an infringement proceeding? On the fifth complaint, the Court was slightly more elaborate on the question of proportionality test in the application of the GDPR, but ultimately it was the same approach I adopted.

The proceedings involved the Court having to rule on what Polish law meant: the Polish government fought tooth and nail, so every point was taken.

Mark Pollack: We’ve already covered a great deal of ground, including issues on the rule of law. I wonder if you can say a little bit about the broader set of legal issues facing the Court today, compared to the constitutional questions of supremacy and direct effect of EU law in the ‘60s, the internal market issues of the ‘70s.

Those days are almost a miracle of simplicity by comparison with the variety of legal issues coming before the Court today. You can say what you think are the most important, most novel, issues coming before the Court today.

Advocate General Anthony Collins: My memory of the time in the ‘90s was, from a legal point of view, the issues the Court had to deal with were just as difficult as the legal issues the Court has to deal with today. What I think has become different is that the [00:59:00] background to the cases has become far more complex. The real difficulty the Court faces – and this is one of the reasons why I think courts have to be restrained and stick to the law – is actually trying to understand what exactly is going on, so one can actually apply the law to the case. It has become increasingly challenging. In terms of legal difficulty – look at decisions, such as, the decision to accede or not to accede to the European Convention on Human Rights. This Court was faced with fundamentally the same issues, with no guidance whatsoever to go on, when it had to deal with the EEA Agreement 1, EEA Agreement 2.

Another example: markets. Take competition law. Defining markets was not so difficult when you were dealing with things like wood pulp, steel. [Chuckling] I mean, you either have wood pulp out there, or you have steel, or you don’t. At the moment you’ve got two-sided markets. What’s the market? Who decides? The Commission itself, the regulators themselves, have difficulty regulating. Then we’re told by highly sophisticated, intelligent lawyers, “Sorry, they got it wrong.” Because people are entitled not just to review on the law, they’re also entitled to review on the facts. But you can’t deal with the facts if you don’t understand the facts.

I think the complexity of life is a major challenge the Court has had to face as much as the difficulty of the legal issues. There’s a wider field of legal issues, yes. We’re getting a lot of references now, for example, in areas such as, say, the European Prosecutor’s Office. I have another reference concerning the operation of the European Investigation Order. When you boil it down, the points are actually quite clear, but this is new.

So, what do I think? First of all, there is an eternal issue before the Court. It’s the [01:01:00] balance of competences between the Member States and the European Union. It is, I think, from a political viewpoint possibly even more sensitive now than it was 30 years ago.

Mark Pollack: And it arises as often?

Advocate General Anthony Collins: It arises every time you are looking at areas. If competence has been transferred, it’s quite clear. But in quite a lot of areas, you’re looking actually where does the balance lie between the Member States and the Institutions? Where does the power lie?

For example, take the question of European citizenship. There was a case called Préfet du Gers, Case C-673/20, in which I clearly came down saying that citizenship of the Union is basically contingent on citizenship of a Member State. When the British left the EU, all British nationals lost their European citizenship.

Mark Pollack: [01:02:00] Right.

Advocate General Anthony Collins: There are people who believe, “No,” there was some vestigial right, that there needed to be an individual consideration. How could this be that someone who’d lived 20 or 30 years in France or Luxembourg or Belgium, but had validly chosen to be a UK citizen, suddenly found themselves deprived of rights as a European citizen by operation of the decision of the United Kingdom to leave? That question had to be decided. It was decided very clearly, in my view. Once they leave, you lose your status.

There are areas you can look at in a rights-based way, but you also have to bear in mind where the Member States stand. Did the Member States give competence to the EU? There are other areas that are quite sensitive, say, recognition of transgender and how far that goes into your national legal system. The whole Article 19 area here, as I said [01:03:00] earlier – can a Member State decide to organize its legal system any way it wishes, provided it complies with the fundamental requirement to have independent, impartial tribunals established by law? That is a recurring theme.

I think the Court has to realize that, like any other human institution, it too can make mistakes, or can change its mind, or could be persuaded to change its mind. Obviously, you have to have legal certainty and you have to have certain fundamental principles. But even if you look at the development of the case law in Article 19, TEU, that’s been a relatively recent development and the Court has had the courage to see that it has to be done. That was something new.

When you do things, you [01:04:00] can also make mistakes. I think the Court would be well advised to be less bound by its case law. It’s ironic that the Court has become very common law in its approach towards its own case law, which goes against the continental tradition.

The courts should have the courage to say, “Look, we’ve reflected on this and we think we’ve changed our minds.” But not to act as if it’s never wrong. I think it erodes confidence in a court. For example, in Ireland, we had a long line of case law concerning the admissibility of unconstitutionally obtained evidence. It began in the ‘60s; eventually by the early [01:05:00] ‘80s there were very clear decisions. Our Supreme Court more or less said, “If evidence is obtained in circumstances of unconstitutionality, it is inadmissible in criminal proceedings. Full stop, and no exceptions.”

The Supreme Court revisited that decision a couple of years ago. It was a split decision. Harsh things were said. The point is, the Court said, “We have to look at this again, and now we’re saying, it’s the other way.” Nobody says, “Oh, the Irish Supreme Court – those fellows, they just make it up as they go along.” The Court hasn’t lost credibility. In an area where you have a lot of change, you’ve got to have the courage and the flexibility to do that type of thing.

The Court has done it in the past. I feel sometimes, in some cases, that there’s a lot of brushing under the carpet. Recently, for example, a case I was involved in: we gave an opinion and we said, “This judgment of the Court was [01:06:00] wrong.” The Court, by following my opinion, has said so, but it doesn’t say so clearly. It’s one reference to the judgment that we condemned as wrong, in passing. But when you read the judgment you realize what the Court has done is actually said, “This is wrong,” but it won’t say it’s wrong.

In the opinion, I made a number of suggestions as to how you could deal with the case. They could have taken up one of them. They didn’t. We know what the decision is and it’s in an area where you need legal certainty and you can’t have nice, academic discussions about this.

I also think there’s a big challenge for the Court itself as an Institution: its internal organization. You’ve now got 92 Members in both Courts, 38 [01:07:00] members in this Court. There are a whole series of questions. There’s enlargement. It may not be happening today, it may not be happening tomorrow, but it’s difficult to see how there can be what are called “zones of non-law” on the European continent. That inevitably means there are going to be new Member States, and they have to be accommodated in some way. And the institutions which depend very much on the individuals who are sitting there, you’ve got to look at your structures to see how that can be done. Clearly there’s a strong argument that each Member State should have a judge. But how is that going to work out in practice?

For example, as we know, in October there’ll be transfer of certain types of references for preliminary ruling to the General Court. In the long term, to some extent, the Court, having given birth to the General Court, is now going back to [01:08:00] having one big court. Because if you send references to the General Court, the General Court is carrying out the functions of the Court. All the jurisdiction of the General Court originally stemmed from the Court. You’ve got to look at the structure. How do you make sure that all the Member States’ legal orders feel they’re part of this project?

And that’s another structural issue: recruitment of judges. When the Court started off, and for a long, long time, the people who sat here came from their Member States. They may not have known much EU law, and some of them might have had difficulty speaking French. But they knew what their national law was. When they went back to their Member State, people knew who they were. Increasingly, what’s happening, and it’s understandable over time, you’re getting a [01:09:00] situation whereby you have people who are unknown in their Member States, sitting, for example, let’s say, in the General Court.

You need, I think, to have constant interflow between the national legal orders and the EU legal order. It doesn’t have to be the same in every Member State. Different states, different traditions. If we take Ireland: every single member of Irish nationality practiced law in Ireland If they go back to Dublin and go to a conference, people know that person. If you haven’t had any background of that kind, it doesn’t necessarily give rise to the same level of confidence.

That comes back to another issue: permeability of the system. There is no legal working language at the Court of Justice, because the relevant provision of [01:10:00] the Statute that allows the establishment of a legal working language requires unanimity on the part of the Member States. So, the Court – people might be surprised to hear this –it’s basically an informal arrangement, whereby French is the working language. Which sounds perfectly understandable, if we go back in history. I personally benefited enormously from having to work in the second language, a privilege denied to a lot of mother-tongue anglophones these days. But when I look at the realities of life today – can we really maintain a system, whereby the majority of people who are practicing law in certain Member States, are never going to come and work here? When a simple switch would facilitate that? I don’t mean a complete switch, but some sort of switch.

There are [01:11:00] legitimate complaints at the time it takes the General Court, and this Court, to deal with some of those direct actions that we mentioned: the area of mergers, in particular; competition law, and others. One of the fundamental reasons for this is because if you’re going to work in French, and if you’re going to have very complicated, difficult cases, in English, and the stuff has to be translated back and forth – of course, it’s going to take longer.

Perhaps we should just be pragmatic. Pragmatism in that regard can even be assisted by the regrettable departure of the United Kingdom from the European Union. Because English now – ourselves, the Maltese, and the Cypriots to some extent use it, but we cannot claim to be heavyweights. In fact, we all have official languages which are separate from English. We have Gaelic, we have Maltese and we have [01:12:00] Greek. So, it’s not as if it’s a big hang-up. These structural issues are very important as to how the Court functions. Because when it gets to a certain size, if some of these things are not resolved properly, you won’t necessarily have more efficiency, which leads to people thinking the Court is not doing its job properly.

Another issue that arises is the integration of the Court and its relationship with the national legal systems. If the Court is too far away, at a certain point, national judges are going to say, “Why should I follow this stuff?”

Mark Pollack: Right. Back to the Member States.

Advocate General Anthony Collins: Exactly.

I think there are a lot of delicate decisions to be made and they’re not easy. There’s history, there’s politics, there’s management issues. But the Court – when it was 15 [01:15:00] Members, I think it reached a certain boundary. It’s now heading towards 30. That’s another boundary. Anything above that, and where are we headed? We need, I think, to reflect on that very carefully. And that is a major challenge that’s sometimes overlooked. Just keeping the show on the road is in itself a challenge for the institution. Even if everyone does their best. It’s a miracle it happens at all.

Mark Pollack: I actually think that’s an excellent point on which to end. I want to thank you so much for your time, for your frankness. This has been a fascinating conversation. We really appreciate it.

Advocate General Anthony Collins: Thanks very much for giving me the opportunity to have this discussion.

Mark Pollack: That was Advocate General Anthony Michael Collins, now Judge Collins of the Irish Court of Appeal, reflecting on his more than three decades in and around the European Court of Justice.

We covered a lot of ground and a lot of points, but for me the most striking part of the interview was his point-by-point discussion of his legal reasoning in the Commission v. Poland (4) case. Often when we read about these cases, we get a short-hand summary saying that the Advocate General recommending ruling for or against a Member State, like Poland, and that the AG was or was not followed by the Court. Instead, as we just heard, the Court in an infringement proceeding like this has to deal with multiple legal claims from the Commission, deciding on both admissibility and the merits for each and every one, and both the AG Opinion and the final ruling can be a complex mix of inadmissibility decisions on some points, victories for the Commission on some points, and victories for the defendant state on others. This is what EU law looks like when you look under the hood.

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 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.