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 #8 of the Borderlines CJEU Series features CJEU Judge Constantinos Lycourgos in conversation with Professor Katerina Linos (Berkeley). Appointed as a Judge at the Court of Justice in 2014, Judge Lycourgos has served as President of Chamber there since October 2021. His interview highlights major points in Cyprus’s history and entry into the EU, such as UN Secretary General Kofi Annan’s role in accession negotiations and challenges that Cyprus experienced from the 2008 U.S. financial crisis.
Listeners will come away with an understanding of the roles played by the Judge Rapporteur and Advocate General, as Judge Lycourgos walks through key distinctions between the CJEU and the U.S. legal system. Additionally, the discussion provides clarity about how questions concerning crucial topics such as the fundamental rights of immigrants come to the Court. Major cases are reviewed to further illustrate the Court’s decision-making process and how the Court “walks the line between EU and national competences,” when considering Member States’ autonomy to create rules. Finally, Judge Lycourgos briefly covers the future of jurisprudence, highlighting how nearly all major European crises ultimately find their way before the Court.
Born in Nicosia, Cyprus, Judge Lycourgos obtained his law degree in 1985 and earned a diploma of advanced studies in Community law at the University Paris 2 Panthéon-Assas, where he subsequently presented his doctoral thesis in law in 1991. Admitted as a lawyer in Cyprus in 1993, he worked at the Nicosia Bar until 1996, when he was appointed as a special adviser on European affairs to the Cypriot Minister for Foreign Affairs until 1999. He then worked as adviser in Community law at the Law Office of the Republic of Cyprus from 1999 to 2002. Judge Lycourgos was a member of the Cypriot mission responsible for negotiating accession to the European Union between 1998 and 2003 and a member of Greek-Cypriot delegations negotiating for a comprehensive settlement of the Cyprus problem from 2002 to 2014.
He served as a senior lawyer of the Republic of Cyprus from 2002 to 2007 and as senior counsel from 2007 to 2014. He headed the European Union Law Section of the Law Office of the Republic of Cyprus from 2003 to 2014, while concurrently representing the Cypriot Government before the Courts of the European Union as agent from 2004 until he joined the CJEU.
Cases and sources mentioned in the podcast:
- Links to C-704/20 and C-39/21, joined Staatssecretaris van Justitie en Veiligheid cases regarding ex officio review of detention
https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-11/cp220177en.pdf
https://curia.europa.eu/juris/document/document.jsf?text=&docid=261301&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=9188987
- Links to C-107/23 PPU, Lin case decision on limitation periods for criminal liability
https://curia.europa.eu/jcms/upload/docs/application/pdf/2023-08/cp230129en.pdf
- Links to C-399/11, Stefano Melloni v Ministerio on European arrest warrants
https://curia.europa.eu/jcms/upload/docs/application/pdf/2013-02/cp130017en.pdf
· Links to C-617/10, Åklagaren v Hans Åkerberg Fransson, re ECHR and being punished twice
https://curia.europa.eu/jcms/upload/docs/application/pdf/2013-02/cp130019en.pdf
- Links to C-135/08, Janko Rottman v Freistaat Bayern re citizenship of the European Union
https://curia.europa.eu/jcms/upload/docs/application/pdf/2010-03/cp100015en.pdf
- Links to C-369/90, Micheletti and Others v Delegación del Gobierno en Cantabria, re dual nationality
https://curia.europa.eu/juris/showPdf.jsf?text=&docid=97581&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=9171689
- Links to C-105/14, Taricco I saga case, re VAT fraud
https://curia.europa.eu/jcms/upload/docs/application/pdf/2015-09/cp150095en.pdf
- Links to C-42/17, Taricco II (A.S. and M.B. case) re financial interests of the EU reconciled with principle that offences and penalties must be defined by law
https://curia.europa.eu/jcms/upload/docs/application/pdf/2017-12/cp170130en.pdf
- Links to Euro Box Promotion and Others (joined cases C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19), re Romanian judicial reform and the fight against corruption and the primacy of EU law
https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-03/cp210033en.pdf
· Links to C-118/20, JY v Wiener Landesregierung, revocation of an assurance of naturalisation
https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-01/cp220005en.pdf
https://curia.europa.eu/juris/document/document.jsf?text=&docid=243668&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=9196837
· Links to C-64/16, Associação Sindical dos Juízes Portugueses v Tribunal de Contas, Portuguese Judges salary case
https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-02/cp180020en.pdf
Select Speeches by Judge Lycourgos for further research:
- Measures taken in order to tackle the Euro Crisis and the case law of the EU Courts (description and summary of speech, 12 Feb 2016)
- Human Rights and Security: An inherent tension? (transcript, 6 Mar 2017)
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Citation: Linos, Katerina and Pollack, Mark. Episode #8: Interview with Judge Constantinos Lycourgos. Borderlines podcast, European Union Court of Justice Series (Mar. 14, 2025). https://www.law.berkeley.edu/podcast-episode/european-union-court-of-justice-series-interview-with-judge-Constantinos-Lycourgos/
Episode Transcript
Interview with Judge Constantinos Lycourgos
[00:00:00]
Katerina Linos: Welcome to Borderlines. I’m Katerina Linos, Tragen Professor of Law at the University of California at Berkeley. I had the privilege of interviewing Judge Constantinos Lycourgos with Mark Pollack at the Court of Justice of the European Union in Luxembourg this past summer.
Before joining the Court, Judge Lycourgos served as a senior lawyer for the Republic of Cyprus. He participated in the negotiations of the Peace Plan, as well as in negotiations for the accession of Cyprus to the European Union. He was appointed as a Judge of the Court in October 2014, and has served as President of a Chamber since 2021.
I am delighted that in this episode we get to discuss Judge Lycourgos’ many roles. We get to talk about his work before he came to Luxembourg. We get to discuss Cyprus’s entry into the European Union. We also get to talk about the role of the reporting judge. We find out a lot about the procedure through which [00:01:00] cases reach the Court.
Most critically, we get to talk about the questions the Court answers, and the ones the Court skirts.
Katerina Linos:
I am delighted to welcome Judge Constantinos Lycourgos of the Court of Justice of the European Union with me here today.
So let me go straight into the first question. Judge Lycourgos, you’ve had a remarkable career spanning multiple roles. You’ve served as a lawyer in Cyprus, a special adviser on European affairs to the Cypriot Minister of Foreign Affairs, an advisor on community law at the Law Office of the Republic of Cyprus. You’ve negotiated or helped negotiate accession to the European Union as head of the European Union Law Section of the Law Office of the Republic of Cyprus. You’ve represented the Cypriot government before the Courts of the European Union as agent for a decade before being appointed as Judge at the Court of Justice in 2014.
So I thought I would start by asking [00:02:00] some questions about your career before coming to the Court that are of general relevance. Could you talk about how Cyprus joined the European Union and what your role was in those negotiations?
Judge Lycourgos: Yes. Allow me first to tell you how happy I am also to welcome you at the Court. So, the main problem with Cyprus was its major political problem of the occupation of part of its territory by its northern neighbor, the Republic of Turkey, which had as a result that for years, the position of most Member States of the European Union was that Cyprus could not join before that political problem was solved.
At the end, the accession was indeed possible despite the non-solution of the political problem, as a result of negotiations which led the position [00:03:00] of the European institutions and Member States to change, saying that yes, accession would be possible without a solution, but all relevant issues being taken into account – which meant to carry out efforts in good faith to solve the political problem. Which is exactly what happened. During that period, I was a member of the negotiating team, the small team around our former president of the Republic, President Vassiliou, who was the chief negotiator and coordinated the whole effort of the State in order to adapt to the acquis communautaire, which is an enormous effort for any State, even more so for a very small one which has very limited resources as regards the State institutions.
At the same time, the negotiations aim at examining whether the future [00:04:00] Member State indeed has passed the necessary legislation, has the necessary structures in place in order to implement it, but also there are negotiations on transitional arrangements for areas which seem of particular importance, either to the Union or to the future Member State, and need a few more years before the acquis can be fully implemented.
Katerina Linos: So in our lunch conversation, you mentioned that you were a key participant in two moments. One was that moment of potential hope that the Cypriot political problem would be resolved through a United Nations plan, and also what did happen, which was the accession of Cyprus to the European Union.
Because Borderlines focuses on international law issues, could you speak about your role in the negotiations that ultimately did not succeed, the role of the UN [00:05:00] Secretary-General Kofi Annan at the time, how things looked from the inside in 2002, 2003, 2004?
Judge Lycourgos: Yes, there was a major initiative on behalf of the United Nations in order to achieve a negotiated solution of the Cyprus problem, which started with a first draft plan from the United Nations under the Secretary-General’s name, the Annan Plan. In October 2002, which was the very end of the accession negotiations, actually, the accession negotiations for all ten future Member States, the states that acceded in 2004, ended in December 2002. So in October, the UN handed over to the two sides, the two communities of Cyprus, and negotiations started on that basis. They went on until April [00:06:00] 2003 where the plan, as it had evolved through the negotiations in those months, was put before the two parties, and the Secretary-General asked for their signature in order to have an agreement.
The Turkish Cypriot side, at that stage, refused to sign. And a couple of days later, the accession agreement to the European Union was signed by the President of the Republic of Cyprus. In the meantime, what is interesting is that during that period, particularly in the first months of 2003, one thing that was I would say, more than any other, negotiated was the arrangements that would allow a Federal Republic of Cyprus, a reunited federal Cyprus, to function as a Member State of the European Union.
[00:07:00] So day in, day out, we were negotiating with the Turkish Cypriots how to set up institutions, procedures that would allow the federal State to take decisions, be represented, and function within the European Union, within the Council, what MEPs we would have, et cetera.
So, this unfortunately failed in April 2003, and with the initiative of the Greek Cypriot side, negotiations started again at the end of that year and went on until the end of March 2004 to lead to separate referenda in April 2004, just a few days before accession. But the plan that was put before the two communities to vote on was not an agreed [00:08:00] text. The Secretary-General had posed as a condition that if negotiations were to be held, were to happen, and no agreement was reached, he would complete the elements which had not been agreed. So what was voted upon was the non-agreed plan of the Secretary-General. The referenda had as a result that the plan was rejected and a few days later Cyprus joined the European Union. Because at that stage, actually, everything had been finalized. The accession agreement had been already ratified by all Member States and the European Parliament. So just a few days after the referendum, Cyprus joined, which was a quite strange situation with mixed feelings because we joined the Union, which was of course very important, a historic moment for a small country like Cyprus. At the same [00:09:00] time, we had not achieved what was the other major goal of the time, which was reunification.
Katerina Linos: It’s fascinating to me to hear how close things came, what role the United Nations played in trying to forge a compromise, and how ultimately it did not succeed.
I’m going to fast forward to 2008, 2009. There’s a financial crisis that hits the U.S., that hits Europe, but Cyprus is especially hard hit. The measures that the Cypriot banks, that the Cypriot people, had to implement were harsher. You were involved in some of the key decisions at the time. You also saw the popular response, the recovery. Could you talk about your role in the financial crisis?
Judge Lycourgos: Well, my role was not in the decision-making. I was a legal advisor during that period. But indeed, Cyprus was hit by the fact that it was the [00:10:00] only case where a “haircut” was decided on bank accounts. So people just depositing their money in a bank would lose part of that money even though the bank had not failed, because we’re talking about a haircut of deposits in a bank that still exists today, and that was viable. But the measures were taken in order to save the banking system as a whole. The remarkable thing was that there was no violent reaction of the public at that time. There was a will to comply with what was required. And in the two or three years that followed, the same will was expressed and the measures carried out by the government. So all of the necessary reforms that were needed were indeed implemented, which allowed Cyprus [00:11:00] to have a relatively speedy recovery, probably much speedier than most people expected. But it was nevertheless a very difficult moment with role of the European Union being much criticized by part of the people in Cyprus because they felt that very harsh measures that had not been implemented elsewhere were indeed implemented in Cyprus.
Katerina Linos: Thank you for that. I’ll move on to your career in the Court of Justice. You were appointed as a Judge in 2014. You’ve had many major cases and one of the fascinating features to me in the procedure of the Court of Justice is the role of the Judge Rapporteur. So in the U.S. Supreme Court, who will write the majority opinion is decided at a relatively late stage, after the votes are counted. But it seems that the Judge Rapporteur takes the case at the [00:12:00] earliest stage and is named at the very final stage. Could you talk about that position and how you see it? Is it similar to that of an Advocate General, in which you try to guide the Court towards the right position? Is it more similar to someone who’s laying out the arguments for both sides, for other judges to deliberate?
What are the key roles of the reporting judge?
Judge Lycourgos: Well, indeed the reporting judge is appointed at a very early stage, and the way you carry out that function depends partly on the person and, I would say, partly on the case. You don’t always do it in the same way for all cases. It depends whether you already have a clear opinion on a case or not.
So, the reporting judge is appointed at the same time as the Advocate General and his first role is to prepare the so-called preliminary [00:13:00] report, which lays out a first analysis of the case.
So that analysis could be neutral, saying these are the legal questions that have to be examined. It can also take a relatively clear position. This first analysis is useful for the Members of the bench that will decide on a case. It’s also very useful, I believe, for the Advocate General, because this document which is internal to the Court, no one outside sees it, the Advocate General does see it and read it, and knows what may determine the analysis of the Court on that case, and what issues appear to be important for the reporting judge. So he will probably adapt his opinion to those issues, address the issues, and give his own opinion on [00:14:00] that.
So the reporting judge can indeed guide, in some way, the Court. But it’s a dialogue, in a way, between the Advocate General, the reporting judge, and the other Members of the Court, of the bench, that will decide on a case. Because what happens is that, after this preliminary report, you generally get a hearing, and the opinion of the Advocate General follows. If the reporting judge agrees with the Advocate General, he sends a memo to the other Members saying, “I agree and I suggest to prepare a text on this common position, the Advocate General’s and mine.”
Or, he may disagree. And if he disagrees, he motivates his different position from that of the Advocate General and we organize what we call a [00:15:00] tour de table. Which means, all the Members of the Court that will sit on a case meet and discuss the case amongst themselves, without the Advocate General, who is not a part of the bench.
And there a decision is taken on what is the best option, that of the Advocate General or the one suggested by the reporting judge. But even if the reporting judge is in agreement with the Advocate General, any other Member of the bench can send a note saying, “I disagree, and I disagree for one, two, three, four, five reasons.”
And then you have a tour de table on that basis in order to decide what should happen. So the role of the reporting judge is important, of course. At the end, he’s the one holding the pen and writing the judgment. But he doesn’t always write a judgment following what he would have [00:16:00] liked in a case. He may very well, at the end, be in the minority. In which case, he must loyally implement the position of the majority and motivate that position with his draft judgment. It happens sometimes and it’s an interesting exercise.
Katerina Linos: That’s fascinating, and I won’t press further on that, but I will ask about several of the important cases in which you’ve been Judge Rapporteur. We talked over lunch about the Lin case, which I wanted to ask about the substance of, but now I will ask about the procedure.
So, let me turn straight to a procedural feature of the Court of Justice which is fascinating, the preliminary reference procedure. To an American audience, this would be called an interlocutory appeal. We have it. We don’t use it because we think it’s best to resolve everything and only then appeal once the facts and the [00:17:00] law is clear. Instead, a lot of the case law of the Court of Justice comes as a question from national judges at different levels. There have been fascinating questions on migration and asylum. There have been a series of cases under the return directive, the reception conditions directive, and the third Dublin regulation.
Let me ask about those cases coming from different courts in the Netherlands, different levels of courts – how those questions about fundamental rights for immigrants come to you. So to me, what was fascinating as a matter of doctrine was that a Court could raise questions about detention conditions sua sponte. It could raise questions that were not raised by the detainee. That is a fascinating holding. But in our lunch conversation, you said, “Oh, [00:18:00] the procedure is even more interesting.” So, how do cases come to the Court of Justice? In particular, this series of cases: Staatssecretaris van Veiligheid v. C, B, and X.
Judge Lycourgos: Yes, it is indeed a very interesting case which had a important procedural aspect, but also as to the substance was important. The first preliminary, question was put to the Court by the , Council of State of the Netherlands, the Raad van State, which said, “We have had a series of cases where an asylum seeker or an illegal immigrant was detained and he contested his detention for some reason; A, B, reason. And then the first instance Courts finally [00:19:00] annulled the decision to put him in detention, or, keep him in detention, for another reason that he had not invoked. So these Courts carry out an examination ex proprio motu. Is that a requirement of EU law?”
And at that stage, we had one of the first instance Judges involved, who saw that we had this preliminary reference from its Supreme Administrative Court and took the opportunity to add his own. So he had a case of an illegal immigrant who was detained and was contesting this measure.
He explained the case that he had before him, asked the same question as the Council of State, but adding an extensive argument to say why, indeed, EU law should be interpreted as [00:20:00] requiring this ex proprio motu examination of detention by a first instance Judge. And he added a second question saying, “By the way, would it make any difference if the person detained is a minor?” And a third question saying, “When we give a judgment, the Council of State, the Raad van State, often just decides with a very short judgment, which is not motivated – does it have the right to do this?” So he suggested that his own reference, preliminary reference, be joined to one of the Council of State. We indeed accepted both references and joined the cases. But we only accepted the first of the three questions posed by the first instance Judge. The second one was referring to a minor, and the person concerned in that case was not a [00:21:00] minor, so it was a hypothetical question. And the third one, was also about what the Council of State would do. So, there again, it wasn’t something that could help the first instance Judge who asked that question decide on his own case.
Obviously, he was not the Council of State; obviously, he was not deciding on appeal. He was a first instance Judge. And a basic feature of the preliminary reference procedure is that it’s a dialogue between judges. The national judge asks a question that he considers necessary in order to give judgment. It’s not a right for the parties in a case to have a preliminary reference. It’s really up to the judge to decide whether he wants to [00:22:00] refer, and he only can do that if he needs an EU law interpretation or to have a question of validity of EU law answered, which is necessary for that judge to give judgment.
Obviously, a first instance Judge does not need an answer to the question, “What should the Council of State do?” He will not give judgment as the Council of State, even though the cases were joined. It would have been up to the Council of State to ask the question, so that question also could not be admitted.
The second and third questions of the first instance Judge were considered inadmissible. We only answered the first one, and we answered on the substance that, indeed, EU law does require a national judge to examine the conditions of [00:23:00] validity of a detention measure taken against a third-country national who is either an asylum seeker or a person against whom a return decision has been taken, which requires him to be expelled towards a third country.
And why did we do that? First of all, these persons, the detained persons, are not detained for purposes of prosecution or punishment for a criminal offense. They are not considered to have committed any criminal offense and the relevant directives of EU law contain not only provisions of substance, but also procedural provisions requiring a specific control on behalf of the Judge, which [00:24:00] includes, in certain cases, a control ex proprio motu. So we considered that taking this as a whole; it should be generalized with the judge carrying out such a control, but the national judge does not need to examine all issues of legality relating to a detention measure. He only should examine those which appear in the file that is brought before the judge. If he can see from the file that there is a problem – yes, he should raise that problem. But he does not have an obligation to further investigate in order to find any possible problem that could exist.
Katerina Linos: Thank you so much for that. It seems fascinating that in an era when we have nationalist political parties and anti-immigrant rhetoric, that there is an obligation onjJudges across Europe [00:25:00] to, on their own initiative, determine problems with the lawfulness of detention. I think in practice that is very significant.
I am also going to turn to a different question of the principle of legality. A big question of EU integration is not so much the question of primacy, because now it is widely accepted as a matter of EU and national law that EU law is supreme and must be effective. But I wanted to turn to the Lin case.
I wanted to talk about questions in which national courts must perhaps uphold EU law requirements and set aside national judgments. Could you talk about how a principle that is fundamental, but is applied differently in different national systems works? How do you balance the fact that the Court of Justice [00:26:00] needs to deal with questions of EU law in Member States that have different minimum standards when it comes to procedural safeguards?
Judge Lycourgos: Yes, thank you for that question. Actually, the Lin case was indeed a particularly difficult one from a legal point of view, but also very sensitive and, to some extent, politicized in the country from which the questions came, which was Romania. What happened in that case?
The Constitutional Court had decided that rules regarding the interruption of the limitation period for criminal liability were contrary to the principle of legality in criminal law. And these rules were found to be unconstitutional.
Then, the High Court of [00:27:00] Cassation also on the same issue, saying that the rules on the interruption of the limitation period in criminal matters in Romania are rules of substantive criminal law, and therefore, the fact that under the case law of the Constitutional Court, for a certain period of time there had been an absence of any rule allowing for the interruption of that limitation period could be applied as a more lenient criminal law. So it could apply retroactively under the principle of the lex mitior. Given that this case law of the two Courts and, above all, the Constitutional one, also affected a large number of [00:28:00] cases of VAT fraud, cases affecting the financial interests of the European Union where there’s an obligation to have effective measures, so it is contrary to the obligation derived from Article 325 of the TFEU, to have effective criminal sanctions in such cases. So, the question was whether national courts should disapply the case law of the Constitutional Court, and disapply that case law on the basis of the principle of primacy of EU law.
The analysis of the Court was on both the case law of the Constitutional Court and of the High Court of Cassation to see whether, indeed, they infringed [00:29:00] EU law. And the Court came to the conclusion that, indeed, they did. They run contrary to Article 325 of the Treaty.
So, in principle, there would be an obligation to disapply those provisions, those decisions, the case law of those Courts, because there is primacy of EU law. But the Court added, “However, you need to protect fundamental rights.” The first element relating to this requirement to protect fundamental rights was to examine whether disapplying those Court decisions would run contrary to the fundamental rights protected by the Charter.
And the Court said, “No, it wouldn’t,” because the rules on limitation period are not substantive criminal [00:30:00] law if you see them from the point of view of EU law. So, Article 49 of the Charter, which only applies to criminal law provisions, does not apply.
However, the Court then brings us back to a much older case law, in the two judgments that were given on the same day in 2013, Åkerberg Fransson and Melloni.
In Melloni, it was a case of a European arrest warrant, and the Constitutional Court of Spain was asking whether it could apply a constitutional rule of Spain in order not to execute a European arrest warrant, a provision which protected fundamental rights at a higher level than the Charter.
The Court said, “No, you cannot do that,” because there is complete [00:31:00] harmonization in the field of the European arrest warrant, and where you have a complete harmonization you cannot apply other rules than those of the Charter. However, on the same day, in Åkerberg Fransson, which was already a case relating to VAT fraud, an area where there’s no complete harmonization, the only requirement from Member States is to have effective sanctions. But what sanctions, how, etc., this is not provided for by EU law. So there the Court said, “Yes, you can apply a national standard of protection,” provided that the level of protection provided by the Charter as interpreted by the Court, and the primacy, unity, and effectiveness of EU law are not compromised.
So there are [00:32:00] actually two requirements, one that the level of protection of the Charter is not compromised, which means you can only apply a national standard of protection if it is higher than the level of protection of the Charter. And the other one is that the primacy, unity, and effectiveness of EU law is not compromised.
So this brings us to back to our Lin case, where the Court said “No, there’s no problem of fundamental rights as regards the Charter,” but what’s the situation with the national standard of protection? Obviously, here, there is a national standard of protection, of the principle of legality and of the principle of a retroactive application of a more lenient criminal rule, the principle of the lex mitior. Should national courts respect that higher level of protection and [00:33:00] not disapply the national case law that could create a problem under EU law?
And there we had a problem that had already been faced in previous cases; the so-called Taricco I, Taricco II cases with the principle of legality as an expression of legal certainty. The other case law that was relevant was the Euro Box Promotion case law, where already in a judgment of the Constitutional Court of Romania, the Court had said, “Yes, indeed, this could be a judgment that implements a national standard of protection of fundamental rights. But it compromises the primacy, unity, and effectiveness of EU law, so this should not be respected.”
In the Lin case, the Court chose to distinguish the [00:34:00] two principles of national law that were upheld – the principle of legality of rules of criminal law in that it expresses the principle that offenses and penalties must be defined by law and requiring that there be foreseeability, precision, and non-retroactivity of criminal law.
The well-known principle, nulla poena sine lege, is a fundamental rule that constitutes a fundamental element of the rule of law. So the Court underlined the very great importance of this principle and said “Yes, in that case, you can uphold a national level of protection of that principle,” even [00:35:00] though the Charter normally does not require such a level of protection.
However, the other national principle that was upheld by the High Court of Cassation in the case of Romania, the lex mitior rule, the retroactivity of the more lenient criminal rule, that is of possibly lesser importance. So there you examine whether the primacy, unity, and effectiveness of European law is compromised.
The Court found that it was, because it reinforced a risk of impunity, and therefore, this national standard of protection could not be upheld. So here, what we see is that, at least in the area of the principle of legality as an element of legal [00:36:00] certainty in the area of criminal law, there is a possibility to implement a national level of protection of fundamental rights, which is an attenuation of the supremacy of EU law, not because comparing the national constitutional rule and EU law you find that there’s supremacy of the national constitutional rule, but because EU law will be interpreted in such a way as to accommodate that national constitutional rule, and therefore, not require that any provision of EU law be implemented despite the national constitutional rule.
Katerina Linos: Thank you so much. I’ll turn to a different topic on which you’ve served as Judge [00:37:00] Rapporteur in many cases, and that concerns European Union citizenship. A lot of people lost their European Union citizenship as a result of Brexit, but the Court did not see that as a difficult case at all. It seems that the Court interpreted it as a straightforward decision of the British government, and those cases were dismissed.
Instead, it seems that the Grand Chamber, with you serving as Judge Rapporteur, puzzled over a series of other cases. I’ll mention JY v. Wiener Landesregierung, and subsequent cases, in which you reviewed whether Member State laws that led to the loss of nationality for certain citizens, perhaps because of crimes that were relatively minor and also implied that EU citizenship would be lost, met procedural safeguards of adequacy.
Could you talk about your role in these cases? How someone can permanently lose EU [00:38:00] citizenship? What the role of the Court is to check on Member States that might want to deprive citizens of nationality for political reasons, minor crimes, as an immigration solution – how does that work?
Judge Lycourgos: The Brexit is really a very particular, very special case.
A former Member State decided to leave the Union. Unfortunately, that has more or less automatic consequences. All rights deriving from EU law are lost, except if there’s a provision in the Treaty that provides for the conditions, sets out the provisions of that procedure, that exit from the Union. There were none in this case, so that was it. However, when a national of a Member State is deprived of his nationality, and as a result loses his status as a citizen of the [00:39:00] Union – in a more extreme set up, what happens where someone is, for example, not allowed to stay in a Member State for any reason, so his right of free movement, freedom of establishment, is not granted? These were rights that this person had as a citizen everywhere in the Union, and suddenly he loses all of them. This is a situation seen by the Court very clearly from the Rottmann case in 2010 as relating to EU law as concerning directly the Union. Actually, even before that, since 1992, in the Micheletti judgment, the Court had said that granting nationality or depriving someone of his nationality is, of course, a national competence, but this competence has to be exercised in conformity and compliance with [00:40:00] EU law.
All the difficulty in those cases is how to respect this line, this divide, between national competence, which is always recognized by the Court. The Court always repeats that element, that depriving someone of his nationality is a national competence. It’s even an exclusively national competence and the fact that nevertheless, this competence has to be exercised in compliance with EU law.
What the Court has done, is to say that it’s not up to the Union to determine the objectives that have to be achieved. It’s not up to the Union to determine the criteria that allow these objectives to be achieved, provided that the objectives are legitimate. For example, to protect public safety. It’s really up to the Member [00:41:00] State to decide whether it wants to protect public order, or public safety, or to protect the special relationship that relates a person with the State of which it has the nationality. So if that special relationship is gradually lost, nationality could be lost. That’s really up to each Member State to decide if this is what it wants. There are obviously Member States seeing things like this, others not. So there the Union does not intervene.
However, if someone loses his nationality and only had the nationality of one Member State, and as a result also stops being a citizen of the Union, this obviously has consequences as regards to EU law and his status as a citizen. So all that EU law requires [00:42:00] is an examination of proportionality, proportionality of the consequences for that specific person.
At some stage, an individualized examination of proportionality has to be carried out for that person, the criterion being to see the effects of that loss of citizenship on the normal development of that person’s or his family’s professional life or personal life. Particularly, in Wiener Landesregierung, it was a very strange case. It was a person that tried to acquire Austrian nationality, so accepted to abandon her previous Estonian nationality – so Estonia is also a Member State of the European Union – she abandoned that nationality because [00:43:00] the Austrian nationality had been promised to her. And then, in the meantime, she carried out some minor offenses: not submitting her car to technical control, and once driving having drunk more alcohol than was allowed. And that was, for the Austrian authorities, a sufficient reason not to grant nationality.
So, that person found herself in a situation where she was stateless. In any case, stateless or not, that was not the issue for the European Court. It was that she was without the status of EU citizen. In that case, the Court could have quite easily decided whether that criterion, the fact of losing nationality because of such reasons, was a [00:44:00] valid reason under EU law or not.
However, the Court did not do that because it’s not up to the Union to determine the criteria. The only thing the Court said is “There’s a problem of proportionality of the consequences,” and seeing what consequences are drawn from the mere fact of driving after having a little bit too much to drink in a situation where there’s only a minor fine that is imposed and where even the driving license cannot be suspended.
Well, obviously, there’s a problem of proportionality of the consequences, and this is not in conformity with EU law. So, this is one of the examples where the Court very, very carefully walks the line between EU and national competences.
Katerina Linos: So, let me end [00:45:00] with a question about the history and future of the jurisprudence. So the types of cases reaching the Court in the ‘60s, ‘70s, and ‘80s are so different from the types of cases we talked about. The treaties have changed, the competences have broadened. You’ve served on the Court for a decade. And I’m wondering what challenges you anticipate in the future. What are some of the big legal and constitutional issues facing the Court today that perhaps have not been fully addressed?
The world is changing. There’s new technology. Russia has engaged in misinformation campaigns and invasion of Ukraine. How does the Court deal with this changing landscape?
Judge Lycourgos: Well, indeed, the cases reaching the Court are in a constant evolution. I would say that there’s no major crisis [00:46:00] in Europe that does not, in some way, find its way before the Court in one case or another.
You talked about the invasion of Ukraine. We had cases regarding sanctions, cases regarding the prohibition of functioning of Russia today. So, these cases come to the Court. I would say that, unfortunately, the case law of the Court that has developed in the last few years on the rule of law is unlikely to not be necessary in the near future. We see such cases still coming. Migration is also a problem which constantly provides us with new cases. Artificial intelligence will certainly find also its way here. But basically, the answer to your question is, “Who knows?”
When the first case that became the basis of all our case law on [00:47:00] the independence of national judges arrived, the Portuguese Judges case, the judgment was given in February 2018. No one was expecting such a thing and no one was expecting what could follow. Since then, we’ve had tens of cases on that issue.
So, who knows what will come in the future? Courts do not control the cases that they have to decide on.
Katerina Linos: Thank you so much. It’s wonderful to know that when there are these pretty fundamental rules of law challenges in many Member States – especially perhaps Hungary, but others as well – that there is a dialogue going on, and there are sanctions, and this is an ongoing process.
I really appreciate the time. Thank you so much.
Judge Lycourgos: Thank you very much. It was a pleasure for me.
Katerina Linos: I hope you enjoyed this interview with Judge Lycourgos. I was delighted to hear his direct experience negotiating Cyprus’s entry into the [00:48:00] EU, the Kofi Annan peace plan, and the consequences of the 2008 financial crisis. Judge Lycourgos also discussed differences between the roles of the Reporting Judge and those of the Advocate General.
Thank you to our producer, Toni Mendicino, to our sound engineer, Keith Hernandez, and to the many staff members of the Court of Justice who have made producing this podcast possible.
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