European Union Court of Justice Series: Interview with Advocate General Nicholas Emiliou

Episode #12 August 12, 2025
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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(opens in a new tab) (CJEU) in Luxembourg.

Episode #12 of the Borderlines CJEU Series features CJEU Advocate General Nicholas Emiliou joining Professor Mark Pollack (Temple) in conversation. Advocate General Emiliou was appointed as an Advocate General at the Court of Justice of the European Union in October 2021. In this episode, Advocate General Emiliou reflects on his decision to pursue his current role, highlighting the intellectual freedom it grants him to express independent legal opinions on complex and politically sensitive cases. He also offers insight into how his extensive diplomatic experience informs his approach at the CJEU and examines how the Court addresses key contemporary issues, such as migration, asylum policy, and the protection of fundamental rights.

Advocate General Emiliou studied law at the National and Kapodistrian University of Athens, earning his degree in 1986. He continued his studies at the London School of Economics and Political Science, where he obtained an LL.M. in European law in 1987. In 1991, he was awarded a Doctorate in Law by University College London. His academic career includes research and teaching positions at the University of Southampton (1991–1993) and Queen Mary and Westfield College, University of London (1993–1994), before becoming the Jean Monnet Chair of European Integration at the University of Durham (1995–1997).

Advocate General Emiliou has a long and illustrious diplomatic career, serving as Minister Plenipotentiary at the EU Division of the Ministry of Foreign Affairs of Cyprus (1997–1998), Deputy Permanent Delegate of Cyprus to the EU (1998–1999), Ambassador to Ireland (1999–2002), Permanent Representative to the Council of Europe (2002–2004), and later Permanent Representative of Cyprus to the EU (2004–2008). He was appointed as Permanent Secretary of the Ministry of Foreign Affairs of Cyprus (2008–2012), before serving as Permanent Representative of Cyprus to the United Nations (2012–2017) and again as Permanent Representative to the EU (2017–2021). He has also served on the Panel of Arbitrators at the Permanent Court of Arbitration in The Hague (1995–2016).

He is a member of the European Public Law Organisation and the International Law Association (Cypriot Branch). In recognition of his contributions, he was awarded the title of Knight Commander with Star of the Order of St. Gregory the Great by the Vatican in 2010.

Cases and sources mentioned in the podcast:

  • Link to Wyatt and Dashwood’s European Union Law textbook (6th ed)

https://www.bloomsbury.com/us/wyatt-and-dashwoods-european-union-law-9781847317667/

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12012E%2FTXT

  • Link to the 1951 Refugee Convention and 1967 Protocol Relating to the Status of Refugees

https://www.unhcr.org/media/convention-and-protocol-relating-status-refugees

  • Link to European Convention on Human Rights (ECHR)

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

https://curia.europa.eu/jcms/upload/docs/application/pdf/2024-06/cp240100en.pdf

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62022CJ0563

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62022CC0563

https://curia.europa.eu/jcms/upload/docs/application/pdf/2024-01/cp240006en.pdf

https://curia.europa.eu/en/actu/communiques/cp02/aff/cp0267en.htm
https://curia.europa.eu/juris/showPdf.jsf?text=&docid=47107&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2324438

https://curia.europa.eu/juris/showPdf.jsf?text=&docid=47224&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2324438

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

  • Emiliou, Nicholas. (1996). The Principle of Proportionality in European Law: A Comparative Study. London; Boston: Kluwer Law International.

https://law-store.wolterskluwer.com/s/product/the-principle-of-proportionality-in-european-law-a-compar-study/01t0f00000J3aYXAAZ?srsltid=AfmBOopw7Kj5CNt10AyGQZ1DkrCrhb2FE8MpLHYhj2j-v2WEfYd1i3AA

  • Emiliou, Nicholas and David O’Keeffe, eds. (1996). The European Union and World Trade Law: After the Gatt Uruguay Round. Hoboken, New Jersey: John Wiley & Sons Inc.
    https://www.amazon.com/European-Union-World-Trade-Law/dp/0471955523#

  • Emiliou, Nicholas. (2002). “International Agreements in the Legal Orders of the Candidate Countries: Cyprus.” Pp. 239–250 (Ch. 2). In Andrea Ott and Kirstyn Inglis, eds. Handbook on European Enlargement: A Commentary on the Enlargement Process. The Hague: T.M.C. Asser Press.  https://www.asser.nl/asserpress/books/?rId=4358

Citation: Linos, Katerina and Pollack, Mark. Episode #12: Interview with Advocate General Nicholas Emiliou. Borderlines podcast, European Union Court of Justice Series (August 12, 2025).
https://www.law.berkeley.edu/podcast-episode/european-union-court-of-justice-series-interview-with-advocate-general-nicholas-emiliou/

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Episode Transcript

Advocate General Nicholas Emiliou Interview 

Mark Pollack: In this episode, I interview Nicholas Emiliou, who serves as Advocate General at the Court of Justice of the European Union. After completing his legal studies in Athens in 1986, Advocate General Emiliou earned an LL.M. in European law at the London School of Economics, and a doctorate from University College London before starting a distinguished academic career in the UK.

As you’ll hear, however, Advocate General Emiliou then pivoted from academe to diplomacy, serving his native Cyprus in a wide variety of senior diplomatic roles, including as Permanent Representative of Cyprus to the Council of Europe, to the European Union, and to the United Nations, as well as Permanent Secretary of the Cypriot Foreign Ministry.

In October of 2021, he pivoted yet again, being nominated and appointed to his current position, as Advocate General at the Court of Justice. In today’s interview, Advocate General Emiliou talks about entering the field of EU law back in the 1980s when Cyprus was only beginning to negotiate its first association agreement with the EU.

He talks about his long diplomatic career, and most notably his two stints as the senior official in Cyprus’s delegation to the European Union. From there, he provides listeners with a candid account of his nomination to the Court, navigating the challenges of the infamous Article 255 Committee and why he preferred the poorly understood role of Advocate General to that of judge at the Court of Justice.

We also discuss one of his most significant opinions on the granting of protective status to a mother and child who had sought asylum from Gaza. And we discuss the future of the Court. So here’s my interview with Advocate General Nicholas Emiliou.

Mark Pollack: Thank you for being here with us today, Advocate General Emiliou. We have many questions for you, as you can imagine.

I want to begin, if I may, by asking about how your distinguished educational and professional background have prepared you for your current role as Advocate General of the Court.

I want to start with your education. After earning your initial degree in law at the National and Kapodistrian University of Athens in 1986, you went on the next year to earn your LLM in European Law at the London School of Economics and Political Science, and then your Doctorate in Law at the University of London. So, what struck me in that story is you opted, some 17 years before Cyprus was to join the EU, to specialize in European law. And I wanted to start by asking how you began that journey and what motivated it.

Advocate General Emiliou: Thank you very much, and thanks for this opportunity.

Well, to be honest with you, I was a very good secondary school student. I didn’t know what I wanted to do at university. I studied law because I come from a family of lawyers. So, it was a natural course, but I had no particular appetite for it. I started to appreciate and enjoy law after my second year. When I got my degree in ‘86, I didn’t know what I wanted to specialize in. I asked one of my uncles, who was a judge in Cyprus at the time and subsequently, the first Cypriot judge here in Luxembourg, what he suggested, and he recommended insurance law, given that the insurance sector was thriving in Cyprus at the time.

I read a textbook on insurance law, and I was bored out of my wits. So, I decided to take further advice. A distant relative was the Chief Clerk at the Ministry of Foreign Affairs of Cyprus at the time, and he was the first person, even though he was not a diplomat – an administrative officer – to give me the idea about European Community Law, as it was called then. Cyprus was ready to enter into a customs union agreement with the European Communities, as it was called at the time, and there was a prospect of an application for Membership.

Then, I visited in Athens the late Giannos Kranidiotis, who was of Cypriot origin, but an official of the Greek government at the time in charge of the Greek government’s relations with the European Community, and he said unequivocally, “Yes, the European Community – but there are not many specialists either in Greece or Cyprus, so that’s a good prospect.”

Again, I studied a textbook in English on European Community Law, which was classic in England at the time, “Wyatt and Dashwood,” and I found that very interesting. I thought that this looks good, and I decided to go that way. I did my Master’s at the London School of Economics in England, and then I got the scholarship for my PhD from the Onassis Public Benefit Foundation.

I decided to stay in London because, at the time, there was nothing in Cyprus which I could use my expertise in European Community Law. There was no university in Cyprus when I completed my PhD. It started a year later, and the School of Law was not one of the first faculties that was created. Secondly, in Greece, where I grew up, the prospects were not so great. I wanted to join the diplomatic service, but since I was not a Greek national – at the time, it was very difficult for a Cypriot to get the Greek nationality for political reasons. That was a long shot. Also, in that period, university chairs in the School of Law in Athens were bequeathed by the holders, either to their sons, or sons-in-law, or close relatives.

Since I had no uncle who was a professor of law, I decided to stay on in England. I was also a young man enjoying London and all it has to offer. So, it was a no-brainer at the time.

Mark Pollack: Okay. That’s fascinating. And I really appreciate the candor, with telling me how you sort of fell into EU law. I know that you are going to make it back to Cyprus, because I have here the incredibly long list of diplomatic positions you’ve held in Cyprus.

You were in the EU Division of the Ministry of Foreign Affairs. Then, you were Permanent Representative of Cyprus to the Council of Europe, where you represented Cyprus in cases before the ECHR. You were Permanent Representative of Cyprus to the EU, Permanent Secretary of the Ministry of Foreign Affairs, and Permanent Representative of Cyprus to the United Nations in New York. So, a long and distinguished diplomatic career.

The question I’m eventually building towards is: How did that experience influence how you approach this job? But I want to know about those experiences in their own right.

Advocate General Emiliou: Well, again, I found myself in Cyprus by accident. I had a sabbatical year, which I was planning to spend at the University of Toronto.

A few months before going to Toronto for the year, there was a new president in Cyprus who was a friend of my late grandfather. So, he came to London, and by family’s insistence, I went to greet him, and congratulate him. And we got talking, and he asked me what I was doing. I told him that I was I was teaching European Community Law, and he told me, “Then you should come to Cyprus for your sabbatical year as we are pushing our application to join the European Communities.”

I talked to my wife and we thought that it would be a good idea to spend a year in Cyprus. Also close to my family, and because both myself and my wife were incredibly busy in London, we thought that might be a good period also to have a child. So, we opted for Nicosia instead of Toronto, and instead of one year, I ended up staying for almost 30 years. But it has been an invaluable experience. First, I saw law in practice at the European and international level. Secondly, I got to meet personalities that I wouldn’t even dream of meeting as an academic. I met all the UN Secretary Generals since ‘93.

I had the privilege of escorting the then-president to the Oval Office, to visit President Clinton, which was quite a unique experience, and so on, and so forth. But the most valuable was that I got, I think, a pretty complete picture of how Europe and the world at large works, and the position of international law in the whole setting.

And I believe that this is my dowry, so to speak for this job because I served for more than ten years as Permanent Representative, and I sat in  COREPER. I know the sensitivities of most Member States on most issues that we have to deal here at the Court, and, as you know, we do not decide in a vacuum.

There is a political reality around us. The Member States remain the masters of the Treaty, and even though our European Union has been integrating in leaps and bounds in the last 30 years, it’s still a union of States.

Mark Pollack: So, you served on – for those who don’t know,  COREPER – the Committee of Permanent Representatives, which essentially prepares legislation for the Council of Ministers?

Advocate General Emiliou: Essentially, if I may interrupt, it’s the legislature. Because 90 percent of EU legislation, even more than that, is agreed at COREPER level, and only if there is no agreement in COREPER, then the issue is referred to the Ministers. Therefore, being a member of COREPER is not a classic diplomatic job as being, for example, a Permanent Representative to the United Nations, where it’s clearly classic diplomatic work. But being a member of COREPER, it’s having quasi the role of a co-legislator with the European Parliament.

Mark Pollack: Does that experience shape the way that you interpret Article 12 – of whatever Directive – to know what the process looked like behind getting to the language that you see on the page?

Advocate General Emiliou: To some extent inevitably, yes. For legislation adopted during my time there, at least. I know the file, and I know the discussion that led up to the adoption of a specific piece of legislation. For others, well, because there are a lot of recurring issues, if I had not participated directly, at least I know the sensitivities behind that piece of legislation or the purpose that it was supposed to serve.

Mark Pollack: Right, and I want to come back to those sorts of questions. But I also noticed that while serving in all of your diplomatic positions, you’ve served on the Panel of Arbitrators at the Permanent Court of Arbitration in The Hague.

Again, I think that’s fairly unusual as background for a member of this Court. I wonder if you could tell us about how that experience was like or unlike the work of the Court here.

Advocate General Emiliou: I served for a long time on the Panel and made sure that I was attending the annual meetings of the Panel, which were in The Hague, which was fascinating. To be honest with you, given my position – I was a diplomatic position – I was not invited as an arbitrator. So, it was mostly a title, and my only participation there was to attend the annual meetings and read the annual reports of the Panel. So, mostly for my job here, I was influenced by my experience before the European Court of Human Rights down the road in Strasbourg.

Mark Pollack: If I can ask you about that – because, again, it wasn’t before this Court, but you’ve stood on the other side of the bench, and at a court that’s very different from this one in some ways. We spoke with President Lenaerts and he was saying, “That is an international court, and this is a community court, a common court.”

And so, I wonder what differences you noticed, or notice now that you are here, in the culture? Obviously, the mandate here is much broader, interpreting tens of thousands of pages, and not just a handful of Articles. But what have you found in the cultures of the two places? I always find it interesting to talk to people who’ve had experiences at both Courts.

Advocate General Emiliou: First of all, the cultures are very different. This is a much more homogeneous court in terms of culture, in the sense that Judges and Advocate Generals come from EU Member States which have subscribed to a similar past set of values. We have 46 – 47 with Russia – Member States and the culture is much more different. It’s not homogeneous. There are very different traditions. Also, strangely enough, for a human rights court, there are Members from countries that – they are theoretically democracies, but more democracies on paper. Reading dissenting opinions, sometimes, from Members from those countries can be quite instructive, I think. And also, issues that we deal with are much broader than the Court in Strasbourg, which is clearly a human rights court.

But over the years, it has done a remarkable job in creating a common minimum standard for protection of human rights in Europe. The worrying thing, and the challenge that the Court faces, is that we see more and more instances where Member States refuse to comply with the judgments of the Court, especially Member States in the category that I referred to earlier.

Given that the implementation of the judgments there is a question of political will and unanimous political agreement, that worries me about the future compliance and effectiveness of the Strasbourg Court.

Mark Pollack: Let me pick up on the question of, the level of preparedness of the judges. So, you joined the Court in 2021 after being nominated by the government of Cyprus, and it occurs to me that one of the things that we academics don’t understand very well is, the process of nomination and selection, and the workings of the, not-so-new-anymore Article 255 Committee, whose job it is precisely to vet the qualifications of the judges.

Can you tell us about what the process was like for you of being nominated and making your way to the Court?

Advocate General Emiliou: I’ve always wanted to become Advocate General. I had the chance twice to become a judge, and I preferred to stay with my diplomatic job. The reason being that if you are an Advocate General, you sign your opinion. You say what you think is right. And you take, of course, the corresponding responsibility of what you suggest. Being a judge here – given that there is no possibility of dissenting opinions and given that they all have to agree and sign the judgment – was not something that appealed to me.

So, when it was Cyprus’s turn to nominate an Advocate General, I applied without a second thought. I also felt that I had closed my cycle in the Foreign Ministry, having held the most important seals of the office, being a Permanent Secretary for four years, twice in Brussels, New York.

So, the timing was also ideal for a move. Therefore, I applied. And, given that on the side of my main job, I never actually left law – I acted as special counsel for four presidents in Cyprus, both on issues of international law when it came to negotiations for the solution of the Cyprus problem, and also on issues of European Union law – I was very anxious because failure was not an option. For, in that respect, it would have been a fatal blow to my reputation as legal advisor. So, to prepare for both the interview in Cyprus and most importantly, for the Article 255 Committee, I don’t think that I’ve studied so much even when I was a student, at any stage of my student life, because I decided not to leave anything to chance.

The procedure in Cyprus, if you are interested, is selective in the sense that there is a panel for appointments, for nomination, of judges for international judicial fora; essentially here, the Court in Strasbourg, and the International Criminal Court in The Hague. The chairman of the panel is the Foreign Minister, and there are also the Chief Justice, the Attorney General, the Ombudsman, a Minister of Justice, and two academics from law faculties.

Mark Pollack: One hears stories in the past of brothers-in-law making their way to the Court. So, this is clearly a much more elaborate and methodical process.

Advocate General Emiliou: Technically it’s the President of the Republic who proposes the candidate, but it’s the panel that proposes to the President the candidate, and the substitute, and no President has, so far, ever deviated from the recommendation of the panel. So, I went through that first; September 2020, if I remember correctly. I was lucky I could prepare and I could study as much as I wanted to because of the restrictions that we had due to the COVID pandemic. So, there was the lock-up for months on end before the interview. Therefore, it was a good time to study. That went quite well.

My name was put forward first to the President, who accepted their proposal and nominated me. And then, well – Article 255 Committee is no joke. They have a record of rejections even for big Member States. Of course, they could ask anything. I spoke to people I knew that had gone through that exercise previously. But I couldn’t make heads or tails as to what to expect. I presented myself before the Committee in February ‘21. There were still COVID restrictions. Therefore, it was a bit surreal.

I was in a big room in the Council building in Brussels. The only physical presence was the Chairman of the Committee – who happened to live in Luxembourg, and it was easy for him to move to Brussels – the Secretary of the Committee, and then six talking screens around me firing questions. So, it was a bit surreal, the whole experience.

All the questions, bar one, were questions where I had to exercise my judgment. It was not what one knew about EU law but how one would react to several scenarios. Well, I finished, and I wasn’t sure what they will decide. I knew that I had performed reasonably, in the sense that even if I failed, I had done the best I could but was not entirely sure about the result. The current membership of the panel, which is very similar to the one I attended, have adopted a humanistic approach in that they let the candidates know of their decisions the same day. In the past, it took two or three weeks. Some of the colleagues here found it very difficult to cope with.

To my great pleasure, I learned later in the afternoon that I was to be recommended by the Committee to the Member States for appointment. That was a great relief, I have to say.

Mark Pollack: I can imagine. You’ve opened up perfectly the next line of questions by saying that you wanted the position of Advocate General.

I think the position of Advocate General in Europe, as well as in the United States, is often poorly understood. I was reading some of the press coverage of your opinions, and of others, and it often appears as “an advocate at the Court,” or “a judge at the Court, “or “an advisor to the Court,” which is probably, I guess, closest.

I do want to ask how you go about the position, how a case comes to you, at what point you are told that you are indeed going to produce an opinion on that case, and so on. And I think also how you conceive of the role of the Advocate General vis-à-vis the Chamber that’s going to decide – whether you are laying out multiple options for the Chamber or whether you are coming down strongly in favor of one position.

Advocate General Emiliou: First, when a file arrives here in your case, the President of the Court assigns the case to a Reporting Judge, a Juge Rapporteur in French, and the First Advocate General assigns the case to an Advocate General. The Reporting Judge has to put together a preliminary report on the case, suggesting whether a hearing is necessary, and an opinion.

The Advocate General of the case has to agree with the report and especially the suggestions of the Reporting Judge as to the necessity of a hearing and an opinion. In case of a disagreement, the issue is referred for discussion to the general meeting of the Court, which takes place every week, every Tuesday at 5:30 in the afternoon.

But it’s very rare to have such a strong disagreement that a case will be referred to the general meeting. So, once the preliminary report is agreed between the Reporting Judge and the Advocate General, it goes before the general meeting of the Court, which decides if the case raises legal issues of sufficient importance to be heard by the Grand Chamber, which is composed of 15 judges, plus an Advocate General, or by a Chamber of five, which is a case that raises significant legal issues, but where there is sufficient guidance in the existing case law of the Court. So, with or without an opinion, or no hearing.

And lastly, the cases where the case law is very clear, the run-of-the-mill, so to speak, cases which go before a Chamber of three judges, which in the vast majority of cases, decide without a hearing and without an opinion. Also, a number of cases do not make it even there if the Court has decided, especially to a reference from a national court, a certain question, and then the same question comes in a matter of few months or weeks, then an order is issued, which is agreed between the Judge and the Advocate General, indicating to the referring court that we gave an answer to exact same question a few months ago, and we refer that court to the answer that we had given recently to the same or very similar problem. So, this is the procedural aspect of it.  It is true what you have said that a lot of people outside the Court are not familiar with the role of the Advocate General. The role of the Advocate General was transplanted to the Court here from the French Council of State (Conseil d’État), and the role of what was called then Government Commissioner, who was supposed to propose a solution to the case before the   Conseil d’État “in the interests of law,” according to the French legal jargon. Beyond French scholars who specialize in administrative law, very few people are familiar with this institution and its role. As I have mentioned before, in Greek – which is the official language of the Member State I know best, Cyprus – translates to the equivalent of “public prosecutor.” When I go back home and I talk to people, they think that I throw people into jail.

As you have said, the most apt description is that of expert advisor of the Court. When I write my opinions, I view it as if I’m opening dialogue with the Judges dealing with the cases and also with Judges or Advocate Generals who might have dealt with the same or very similar issues in the past. A dialogue which I hope will lead us to adopt the best possible solution to the legal problems before us. Frankly, personally, I do not much care about the academic commentary of my opinions. I don’t even look at them. I have to say, though, that my référendaires are very sensitive to that, so I get indirect knowledge of the comments from them. But, I consider, as my main interlocutor, my main client, the judges dealing with the case.

Mark Pollack: One of the things that the commentary often points out about Advocate General opinions is the difference in style between an Advocate General opinion and the final Court judgment. I was looking at some of your opinions and then comparing the Court judgments, and your opinions begin by explaining the background to the case in a way that I think any informed citizen could pick up and say, “I understand what this case is about,” and then the decision or the judgment will say, “This case considers the correct interpretation of Article 12 of Directive ‘whatever.’” And so, there is a difference in style. I think your opinions are more accessible. They tell more of a story. Obviously, they’re eventually going to get into the proper interpretation of Article 12, and in great detail.

From some of your opinions that I’ve read, for example, you cite judgments of the European Court of Human Rights, which the judgments of the Court seldom do. Do you have particular thoughts in mind in terms of the style of your judgments?

Advocate General Emiliou: Following the withdrawal of the UK from the European Union, and the withdrawal of British judges and Advocate Generals, I think it’s incumbent on the rest of us who come from Member States with common law tradition to be the guardians of the common law tradition to the extent possible.

So, I try to style my opinions in a discursive common law manner. Beyond the background and the discursive style, you might have noticed that I use more personal style when I agree or disagree, the way that judges in a common law system would do. Therefore, I try consciously to that effect. In the French tradition, it’s the bare minimum in terms of facts, and explanations. If one reads one of our decisions here, one might even say that we are talkative compared to a decision of the Conseil d’État.

Mark Pollack: Since you talked about the common law tradition, do you think that’s part of the reason why the position of Advocate General appealed to you more so than that of judge – the ability to speak individually and publicly?

Advocate General Emiliou: Very much so. Because I have a personal journey – transition – from civil law system to common law. I did my first degree in Athens, and Greece has a mixed system, in the sense that civil law is based on the German model, which is very doctrinal, very theoretical, whereas public law, commercial law, have been transplanted from France.

During my first years as a lawyer, I was very much taken by the German system – its doctrinal completeness, the theories of German law. It can be a fascinating intellectual journey. When I left academia and I had to apply law in practice, I saw in real life that doctrine and theory can take you so far, but you have to be practical.

You cannot go to the President, who expects a clear legal opinion, and present him doctrines and theories. I had also the chance to work with great names in common law tradition and international law. I would mention, with respect, Ian Brownlie, who was perhaps the greatest international law lawyer, at least in the UK during his times, and others who taught me a lot. I saw them in action working with common law methods.

I say that it was a painful journey from abandoning German legal scholarship in favor of the common law approach.

Mark Pollack: I think it’s useful for listeners to focus in on one real-world case, to explore what’s at stake in that case, how you approach it, how the Court approaches it. With respect to that, I selected one of your recent opinions that has gone through the process and where we now have a judgment. That was case C-563/22. It was a preliminary reference from a Bulgarian court asking about the application of an EU directive to the asylum request of two Palestinians who had applied for refugee status in Bulgaria and had been repeatedly denied such status. The referring court asked CJEU and you a series of four questions, at the heart of which was the central and actually very timely question of whether, in the event that the UN Relief and Works Agency for Palestine was unable to carry out its function – or had “ceased to provide its function,” I think was the language – of assisting stateless people in the Gaza Strip, the asylum applicants in question might then qualify for refugee status under EU law even if they could not show that they’d been individually targeted for persecution. And your opinion in this case was widely reported on in the press. It appears to have been followed quite closely by the Court in its subsequent decision.

I wonder if you might say more about this particular case, introducing the facts insofar as you think it’s helpful to listeners, but then also how you approached it, in terms of finding precedents, in terms of making the opinion that you did.

Advocate General Emiliou: As you have correctly stated, this case originated in Bulgaria, where a mother and a child had asked repeatedly for an asylum, and their request was rejected by the Bulgarian authorities. It’s particularly interesting because Palestinian refugees have a special status, both under general international law and under European Union law.

Article 12, paragraph 1 of the EU Status Directive, which was the applicable directive here, does not recognize a refugee’s status to a person of Palestinian origins – which are registered with UNRWA, the United Nations Relief and Works Agency – because these persons are supposed to be under that Agency’s protection.

This reflects an Article from the Geneva Convention on Refugees. And under the terms of both the Geneva Convention and the Directive, a person of Palestinian origin may be considered as a refugee once the UN Agency’s protection deemed to have ceased. And as you correctly pointed out, one of the key questions was whether the personal circumstances of the applicant had to be taken into account in deciding his or her demand for asylum. Her argument before the Bulgarian authorities was that she had left in 2018, and the situation in Gaza, by the time that her asylum application was discussed, had gotten much worse in terms of housing, in terms of food provision, medical care, and so on and so forth.

And one of the reasons why the Bulgarian authorities rejected her asylum application was that she would not be affected personally in any worse manner than the rest of the general population of Gaza, where she originated from. I should note, though, by the time that the case arrived in the Court, the current war in Gaza broke out which altered quite dramatically the factual situation.

The first element, which I emphasized in my opinion, is that the national courts and authorities must perform an up-to-date assessment of the general living conditions. They must not just look at how the conditions were when the applicants had demanded for asylum, but what the situations were like at the time of the assessment. Otherwise, we would have reached an unreasonable result. There is a war going on for how many months? And we wouldn’t be in a position to take this into account, which is literally a matter of life and death.

A second element is the risk of exposure to treatment incompatible with Article 4 of the Charter of Human Rights, that is the prohibition of inhumane and degrading treatment, which reflects Article 3 of the European Convention on Human Rights.

According to the case law of the Court, situations coming under Article 4 of the Charter was not a decisive factor in the evaluation of demand for asylum. However, I said that this provision has a special role to play with regards to Palestinian asylum seekers who have availed themselves of the UN Agency’s protection of assistance.

The UN Agency has to secure, according to its own terms of reference, dignified living position for those persons by attending to their basic needs in terms of a roof over their heads, food, and personal hygiene, and medical treatment. If the Agency fails in its mission, as it was clearly failing due to the war that was unfolding, it could not protect effectively those persons. And so Article 4 of the Charter, the prohibition of inhuman and degrading treatment, came into play, which was accepted by the Court.

And a third element is that I explained precisely why Article 4 of the Charter could be imported in the application of the Status Directive. The Court accepted this position in the sense that if there is a substantial risk in the light of the general prevailing situation, in the area of operation of the UN Agency or part of the area, then if the Agency cannot secure the basic needs, Article 4 of the Charter would prevent the presence of the asylum seeker in the area of operations of the UN Agency in question.

Mark Pollack: The Court followed you on each of those points.

I chose a case that I thought would be interesting to our listeners and on which the Court followed you. But of course, we know that the Court doesn’t always follow the position of the Advocate General. And I wonder if you can give us a sense of perhaps a case in which the Chamber judges didn’t follow you and how you see that experience.

Advocate General Emiliou: I don’t mean to be boastful, but I have not been followed only in a handful of cases, on side issues. One case concerns the protections of airline passengers in case of accidents, and was, I think, the first case that I was not followed, so it comes to mind.

I still believe that I was right, and they were wrong, and I see movement of the Court in subsequent cases ever so slightly in my direction.

But to be honest with you, there is so much work that once I finish an opinion, I move on the next case. So, I don’t spend the night sleepless, agonizing whether I would be followed or not. Of course, if one is followed, well, this is a source of satisfaction, I would say, but, of course, it’s part of the game. You cannot always be followed. And, as you know, law is an imprecise science in the sense that, unlike mathematics, where there are certain formulas for equations to solve a problem, in law, there are many ways of approaching a legal problem. So far as I’m concerned, it’s not a case of personal disapproval. It’s rather a case of an honest difference of opinion with the Judges or my colleagues.

Mark Pollack: I’ve heard another Advocate General once say, “I’ve served the Court with my arguments, even if they didn’t find them persuasive in the end.”

Advocate General Emiliou: And of course, some of the most famous opinions of Advocate Generals are opinions where the Advocate Generals were not followed. A very famous opinion comes to mind by Advocate General Jacobs – who was my first teacher in EU law and always someone I aspire to – if I remember correctly, where he suggested loosening the rules of locus standi of the Court.

He was not followed. But it is an opinion which is taught in law schools, not only in England but elsewhere, representing a different approach.

Mark Pollack: Serving in some ways the role that a dissent would in a common law system. We’ve covered a lot of ground, but I wonder if I can ask you two final questions, the first of which is about the agenda of the Court today. For those of us who were trained in EU law back in the day, we think about the constitutional cases of the ‘60s, we think about the internal market cases of the ‘70s and ‘80s, but the range of cases that comes before you as an Advocate General today is far, far greater than in those days.

What do you think are the most important legal or constitutional issues coming before the Court today?

Advocate General Emiliou: Well, naturally the cases that come before the Court also reflect the content of the EU Treaties in force at the time. As you know, especially with the Lisbon Treaty, which is currently in force, the range of issues that come under the EU umbrella has been increased quite dramatically.

There are two issues. One is issues of asylum and immigration. Politically, they are the most sensitive issues in all Member States of the European Union without exception. So, it’s only natural for cases concerning these issues to come before the Court.

Another issue relates to the development of electronic means of communication, storage of data. So, we have a lot of cases concerning protection of personality, of personal data, and so on and so forth. And I think given the dramatic developments, almost on a daily basis, with artificial intelligence and its application, the flow will become even greater, I suspect in the future.

We have had in recent years lots of cases concerning the rule of law and independence of the judiciary. But, given the political change, especially in one of the Member States concerned by it, I anticipate that that flow will be stemmed. And also, I notice that more and more cases concerning the legality of decisions of the European Central Bank come to us as a result of the common currency, which is, as you know, operated by the European Central Bank. It’s not a huge amount of cases, but these cases are very important.

Mark Pollack: I’m very aware that we’ve covered only a fraction of the issues on your agenda. So, I wonder if you want to leave us with any final thoughts that either legal scholars or the general public should know about the Court or should know about your role in it.

Advocate General Emiliou: My message to fellow European citizens is that our Court is a Court for all European Union citizens, in the sense that cases which concern the everyday life of European Union citizens come before us through the medium of their national courts. As you know, more than three-quarters of the cases that we hear are references from national courts, which concern issues of everyday life affecting the citizens: their freedoms, in cases of European Arrest Warrant; in cases of double jeopardy; criminal cases which have a transnational effect; consumer protection; protection against the abusive terms by banks and other lenders of money. And, of course, our duty is to decide the cases, making sure that “the law is observed” as the Treaty says, but also in the best interests of our citizens as well.

Mark Pollack: Wonderful. Well, thank you so much for taking the time. Thank you so much for your frankness. It’s been a pleasure.

Advocate General Emiliou: Pleasure is mine. Thank you very much.

Mark Pollack: We hope you enjoyed today’s interview with Advocate General Nicholas Emiliou. For those who’ve listened to this series from the beginning, one of the most striking things about this interview for me is how, after previous interviews with Advocates General Tamara Ćapeta and Jean Richard de la Tour, we’re really starting to get a well-rounded view of the poorly understood position of Advocate General, the important interpretive and communicative function that the Court’s Advocates Generals have played, and why all three Advocates General thus far have said that they think their job is the most desirable at the Court.

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.

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