European Union Court of Justice Series: Interview with Judge Ineta Ziemele

Episode #6 February 04, 2025
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Episode #6 of the Borderlines CJEU Series features CJEU Judge Ineta Ziemele in conversation with Professor Katerina Linos (Berkeley), with additional commentary by Professor Mark Pollack (Temple University).

Judge Ziemele was appointed as a judge at the Court of Justice (ECJ) in October 2020, a position she has held since then. Her previous service as a judge and President of Chamber at the European Court of Human Rights in Strasbourg and as judge and President of the Latvian Constitutional Court provides an unprecedented perspective on the world and the ECJ. Judge Ziemele has also written as an academic about judicial dialogue, a crucial component between Europe’s highest Court and Member States’ national courts.

Judge Ziemele shares candid views about how the key issues of dissent and judicial reasoning play out uniquely in Luxembourg. As discussed in previous episodes, since its inception the European Court of Justice Judges have never issued separate opinions, instead presenting unanimous rulings after full discussion. Judge Ziemele shares her thoughts and experiences as a Latvian about specific cases, of particular interest vis-à-vis Russia’s growing aggressivity.  

Judge Ziemele was born in Jelgava and graduated from the Faculty of Law of the University of Latvia in 1993. In 1994, she was awarded a masters degree in law by the University of Lund, Raoul Wallenberg Institute and continued post-graduate studies in Law and Political Science at Aarhus University. In 1999 she was awarded a PhD by Cambridge University.

She has worked in the Latvian Parliament, and consulted its Foreign Affairs committee. She was appointed adviser to the Prime Minister of Latvia in 1995. Her international career began at the Human Rights Directorate General of the Council of Europe in 1999. Judge Ziemele has taught at the University of Latvia, where she also founded and directed the Human Rights Institute. In 2001 she was elected professor at the Riga Graduate School of Law. That year she founded and continues to be editor in chief of the Baltic Yearbook of International Law. She is a Member of the Academy of Science of Latvia, the author of numerous publications, and the recipient of many honors, including Latvia’s Order of Three Stars, Award of the Cabinet of Ministers, and Medal of Honour of the first degree of the judicial system.

Some of the cases and sources mentioned in the podcast:

Selected speeches by Judge Ziemele for further research:

Citation: Linos, Katerina and Pollack, Mark. Episode #6: Interview with Judge Ineta Ziemele. Borderlines podcast, European Union Court of Justice Series (Feb. 4, 2025). https://www.law.berkeley.edu/podcast-episode/european-union-court-of-justice-series-interview-with-judge-ineta-ziemele/

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Episode Transcript

Interview with Judge Ineta Ziemele

[00:00:00]

Katerina Linos: Welcome to Borderlines. I’m Katerina Linos, Tragen 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 2024 with 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: Today, Katerina speaks to Judge Ineta Ziemele, who is remarkable in having served not only as a judge of the European Court of Justice, but previously having served as a judge on the European Court of Human Rights in Strasbourg and as a judge and President of the Latvian Constitutional Court. [00:01:00] This gives her a remarkable perspective on the broader context of what she calls European law. It gives her an unprecedented set of perspectives on how the Court works, how the Court works differently from national constitutional courts and from other international courts. And we spoke to her about specific cases about her experiences as a Latvian, particularly vis-à-vis the growing significance of Russia in EU law.

Katerina Linos: And what I wanted to add is her experience as an academic, as a writer, and as a leader on a national constitutional court. One of her fascinating articles is about judicial dialogue. She co-authors a challenge to the Court of Justice with top conservative constitutional court leaders and asks [00:02:00] for more weight to be given to national courts at a time when some see the Court of Justice as accepting and enhancing the competences of the EU institutions. So asking her pointed questions now that she’s sitting on that very Court was one of the big pleasures of this interview.

Katerina Linos: I’m delighted for the opportunity to be with you, Judge Ziemele. You have had an exceptional career. You have served not only as president of the Latvian Constitutional Court but also you’ve served as a judge on both the European Court of Human Rights and also on the Court of Justice of the European Union.

And that’s truly unique. Many of the judges have EU law backgrounds. Many of the judges have academic or national practice, but this comparative experience is different. Could you talk a little bit about the three roles?

Judge Ineta Ziemele: I admit that I [00:03:00] have had the privilege, I should say, to serve on three courts that indeed are pivotal for the concept of European judiciary.

And we will come back to that because that’s the concepts that I believe is very much in place, if you want to understand how courts actually function in Europe. It’s been a privilege. Well, what can I say?

These three courts evidently have their different competences. At the same time, with these different competences, they indeed reflect how historically Europe has come to conceptualize what it wants to achieve, and [00:04:00] that is ensuring rule of law as one of the foundational values of our common European culture.

So I believe the three – the Human Rights Court, the Court of Justice, and the constitutional jurisdictions at national level – they belong to the scheme of things in Europe. I mean, it would be very hard to imagine not having constitutional courts and the EU legal order with its top courts and the [European Human Rights] Convention system, as a reflection of an element of international law, I should say.

That’s the first love, in any event, of my career, that’s international law. So there we are in Europe, that’s how it looks.

Katerina Linos: So let me ask a question about how cases arrive before these different courts. So for Americans, the fact that you have the ability to go to the [00:05:00] Strasbourg Court as a matter of right and that the caseload is huge is amazing.

It’s also fascinating to see the preliminary ruling procedure. We have interlocutory appeals in our system, but our system, like most systems, wait until the trial court judge has determined the issues of fact and law before it moves to an appeal on a specific issue and so on and so forth. As someone who works as a judge on a court that hears preliminary references, as well as other procedures, but has also worked in other systems, what are some of the challenges and some of the opportunities of the preliminary reference procedure?

Judge Ineta Ziemele: Well, I would actually compare preliminary reference with a constitutional court competence. Why? Because we really have to interpret [00:06:00] the provisions that we are asked to interpret by national courts, and we have to interpret not in isolation, but in fact more and more what you see throughout the decades of the evolution of EU law, the evolution of how the Court of Justice understood itself and its role, what you see is that the Court more and more, especially, I think, in recent years, is making the interpretation, and being sure that it fits into the constitutional order that the treaties have established. You see, we would, in fact, never have the interpretation where we would suspect that goes against the Charter of Fundamental Rights or the essential provisions of the treaties.

What fascinates me also as a constitutionalist – my second love of [00:07:00] life – I must say it, what fascinates me is the fact that the interpretation asked from national courts has step-by-step evolved into making sure the internal consistency and coherence of a legal order of a new kind.

You don’t have a precedent in the world. So that’s why no comparisons actually exist. It has to do with the history, of course, of Europe and what Europe has gone through that it has arrived at the mechanisms that we have right now. And this is very, very important to keep in mind. But the mechanisms that we have – the strong constitutional courts at national levels of constitutional jurisdictions and their respective competences, which we can discuss if you’re interested in – so, the EU legal order as a new kind of legal order, for sure, but [00:08:00] also as you rightly said, an effective right of an individual with the human rights complaint, based on the Convention, to go to the international court.

In a way, if you look at the other parts of the world, you will realize that Europeans have put in place something, for the time being, still rather unique at all levels and all dimensions. And, of course, something that the underlying universalist approach of the Europeans towards the world that has not disappeared, so that’s something that the Europeans would like to share, of course, with the rest of the world. That’s how we look at international law, and this is why in Europe certainly – I define Europe, of course, within the boundaries of the Council of Europe – the application, direct application of international [00:09:00] law and rules of international law are the value. And so that’s how European governments project themselves towards the rest of the world and the issues that one has to deal with.

And thereby we have these mechanisms. And indeed, in the end of the day, the politics, the decisions that have come out in a political process, of course, essentially legislative, will be determined as to their compliance with the values, constitutional values, by the courts.

Katerina Linos: I will turn in a moment to what a European value is because I know you’ve written extensively on, for example, the fact that democracy is a European value. But it’s not necessarily a requirement under international law?

Judge Ineta Ziemele: No.

Katerina Linos: But let me ask one more question about procedure. A distinctive feature of the European Court is that it speaks with one voice, that there are no separate opinions in the Luxembourg Court the way there are in the Strasbourg Court, [00:10:00] in the International Court of Justice.

Judge Ineta Ziemele: In constitutional courts as well. That’s very typical to have dissenting opinions in the constitutional courts.

Katerina Linos: So, I wanted to ask, after having worked in environments –

Judge Ineta Ziemele: Difficult. [Laughter]

It’s very difficult. For me, it is. I think that’s a very personal note, not because I’m used to it or I was used to it. But I think that this is my, a little bit, professor’s hat and that I think that law is living phenomena. I always find that the dialogue, of course, between the majority and a minority in the composition of the court, in fact, is necessary to contribute to that living nature of law.

So it is from this perspective that I have always been very comfortable with those courts on which I have served, who [00:11:00] actually have the possibility of dissent, and you may know that I did dissent actually quite a bit when I was in the Strasbourg Court. The reason I did dissent, I mean there is always a red thread that goes through my dissenting opinions. And that’s interesting because, in the European Court of Human Rights, and I told you, that’s an element of international legal order. Now, however, since it is a human rights instrument, it actually is right in the middle of the discussion of fragmentation in international law. My position on that court always was, that human rights convention, human rights law is part of international law. The Court should not have the judgments which would contribute to fragmentation.

My approach was the protection of contribution to integrity of international law. And so if you look at the dissenting opinions, you would [00:12:00] see that on details, of course, of the case, but the main conceptual approach was when I dissented, because I considered that that particular judgment does not comply with some general principles of international law, which ought to have been considered, and that the interpretation of whatever article of the Convention should not have been taken in isolation, I should say, from international law. So with that example I would think that’s one of many possible examples to show that dissents are important in the Strasbourg Court.

And similar for evolution of constitutional law, for the simple fact that societies evolve constantly. And the legislator, typically is reacting, both at a national level and now EU level – which is a quite quasi-constitutional phenomena.

But what you see is [00:13:00] that the legislator will typically be behind the evolution of society. There are many instances when it so happens and that there is no, really, a recognition of the claimed, I would say, legal relationships in the society, we haven’t yet legislated on them.

It is in this context that in the constitutional court, for example, the dissenting opinions are necessary. Because they have the faculty to point out that a considerable group of the society – for example, in the instances of same-sex couples – has asked for the protection of the family life.

The legislator for political reasons refuses to recognize. That’s a recent Latvian case. So in that case, the constitutional court stepped in and said, based on the equal rights principle, there has to be a recognition. You see how the [00:14:00] synergies, the influences, how they play out, of course, in the interests of individuals and the people.

And with the dissenting opinions, that is very helpful because there the minority judges can show what, for example the majority didn’t want, because legislator has not legislated, but they can emphasize what the society has demanded, you see. Now, that is all relevant for an international court such as Strasbourg Court and the constitutional dynamics in any given society.

Where does that leave us as far as the Court of Justice is concerned? Which does not have, as you rightly said, the possibility of filing a dissenting opinion. To be absolutely honest with you, in the way the Court [00:15:00] works, the sheer amount of work it has, and the working methods in place, with all my dissenting nature that I have, I simply do not see space for this. I would want to, but I don’t see the space to begin with, at a very practical level. Because the legal system, the consistency and coherence that we are asked to maintain, is so vast, at the same time so detailed, that I just don’t see what a dissenting opinion would help.

Yes, we have what we even call constitutional cases, and indeed major constitutional [00:16:00] issues for the legal order. Rule of law cases. But still even there, even there – and probably now I’m much less a professor, but simply a very practical, pragmatic judge in the Court of Justice – I don’t see space for that. It’s as simple as that.

Katerina Linos: Let me ask you a small follow on. Because the Borderlines audience is an international law audience, could you name some of your cases where you dissented because you thought, “International law is going in this tradition, the European Court of Human Rights is going in the opposite decision. I’m really proud of this dissent.”? Just so that students who might listen to this or academics or others might go to those cases and read and follow on and we’ll link to them as well.

Judge Ineta Ziemele: In the Strasbourg Court I dissented and wrote concurring opinions as well. Even if the result was correct, the methodology may not have been in terms of [00:17:00] international law. I actually published all of them in English. And that is a book, on separate opinions, which includes also an introductory article which might interest you, for your project and your students, discussing a very interesting question on whether the judgments of the European Court of Human Rights, in fact, are a source of law, properly speaking. Not in the sense of precedent law or the jurisprudence constant. No. But really a source of law in international law, in addition to treaties, custom, general principles, but also the jurisprudence, whether that’s a source [00:18:00] of law. I actually come to the conclusion that it is, as far as the European Court of Human Rights case law is concerned.

So that’s an article, which is interesting, in fact, to discuss in seminars. And that then precedes all of the separate opinions that I wrote while on the Strasbourg Court. That’s probably the easiest.

Katerina Linos: Perfect. So we’ll make sure to link to that. But I also will be definitely linking to a different article of yours that I find very provocative in a number of ways.

So this is the article you co-authored when you were president of the Latvian Constitutional Court and had just been elected to the Court of Justice with the presidents of the Austrian and Slovenian Constitutional Courts and key judges, a key judge on the German Constitutional Court, where you talk about the relationship between the Court of Justice and the national constitutional courts, there’s a lot in that article.

Judge Ineta Ziemele: There’s a lot of information [00:19:00] in it.

Katerina Linos: Yes.

Judge Ineta Ziemele: There are some things that needed to be brought to the light. The importance of the constitutional courts and what they actually do.

Katerina Linos: So maybe I’ll just start by saying, you know, when you’re a president of a constitutional court and you decide to go around and coauthor with other presidents of constitutional courts, that’s a particular strategy. How did you think of that technique? How did you decide to co-author, put that in the public sphere? And then I’ll ask about some specific claims because they are very exciting.

Judge Ineta Ziemele: Right. Well, that is actually nothing special or surprising. That really showcases to you the close connections between the constitutional courts in Europe.

While it’s true, these are all nation states, true, with their really long traditions and very particular traditions to each one of the states, their [00:20:00] languages and their cultures, et cetera. At the same time, what has happened in Europe following World War II – and especially promoted following the fall of the Berlin Wall – isthe formation of European common values, such as the Convention on Human Rights, for example, rule of law, human rights and democracy – the three pillars – and the mechanisms that we built to guarantee these values. It has really stimulated an intense, almost daily, dialogue, communications between also the key personalities that either run these institutions or are otherwise involved. So, in Europe, that is absolutely normal that you come with the idea to have either a conference or an [00:21:00] article. And this is why for us the whole concept of dialogue, judicial dialogue, is one of the key elements of this modern 21st century functioning, European functioning, in the area of rule of law.So that article simply came out in the context that we work together, we communicate together, on important constitutional law issues. And because there was at the time really a need to have the Court of Justice engage with the constitutional courts in a new quality. That’s a call for that quality of judicial dialogue.

Now, what happened parallelly to that, I had another idea. I was probably thinking parallelly with the German Constitutional Court and [00:22:00] President Voßkuhle at that time. Because the feeling that we had among the constitutionalists was – given the role that the Court of Justice started to play in really strengthening the EU legal order as a kind of constitutional or rather common legal order to all 27 European societies – that we need to discuss it together. And so I came from Riga to the Court of Justice, even before I knew I was going to change my offices, in 2019 and I proposed to President Lenaerts that the Court of Justice and the European Constitutional Courts and Supreme courts with the jurisdictionshould really have a very close dialogue where, well, we discuss the issues that the article [00:23:00] raises and any number of other issues. The respective roles, the respective contributions that the national constitutional courts ought to make, can make, and the Court of Justice in the formation of this common legal order, which is based on values.

It is in fact a common endeavor because in all of the nation states, the constitutional courts, too, ensure that the values of the respective constitutions are respected, you see. Now, the fact is that common constitutional traditions are the source of the EU law. You see, so it is – we are in it together.

So if we are in it together, that the common constitutional traditions also make what common EU law is all about, that means that all of these actors and not just the Court of Justice, but all of these actors should be on the same page. The first edition of this [00:24:00] dialogue took place in Riga in ‘21, when I had already in the meantime, changed courts.

 The second edition was in The Hague because the Benelux courts took the relay and the third one, the third edition, will be in Sofia, at the Bulgarian Constitutional Court.

I think it is through this mechanism that some of the difficulties and sensitivities that transpired when we were writing the article, which was much earlier than it ended up published, this is the way to address them.

Katerina Linos: So let me focus a little bit on a conflict that preceded this dialogue and the most famous decision that German Constitutional Court President Voßkuhle wrote, it was his last act, the PSPP decision, in which he declares that the European Central Bank as well as the Court [00:25:00] of Justice have exceeded their competences.

Judge Ineta Ziemele: No, to the contrary, the Court of Justice had not exercised enough of its competence [laughter] from the point of view of a constitutional court, which court, evidently, would – had it been a national act, for example – would have gone through a very detailed examination of the implications of such a decision.

 

Katerina Linos: You write in the article that at the end of the day when the Court of Justice fails to exercise this responsibility, the constitutional courts can step in as a check. Others might say, “No, no, no, primacy means that we’re the final word.”

So could you talk about the role of national constitutional courts on checking the Court of Justice? When the Court of Justice just says, “Okay, whatever the Commission is doing and the counselor is doing is just fine,” and they don’t engage in detailed review, is it fair that then the national constitutional courts should serve as a [00:26:00] check?

Judge Ineta Ziemele: The national constitutional courts should certainly keep an eye. And in the ideal circumstances, the national constitutional court ought to come back, let’s say, with another, with a second, preliminary reference, pointing out specifically what is not clear, maybe in terms of the proportionality principle, for example, the issue raised by the German Constitutional Court or any number of other principles that, in fact, we share. Or the protection of human rights. That scenario, which is the ideal scenario, was played out in Taricco saga.

So we do have, in fact, procedural ways of doing it. Of course when it comes to the German Constitutional Court’s relations with the [00:27:00] Court of Justice, it is true that the German Constitutional Court has done so, has come back, on a number of issues with another preliminary reference and something in their view has not worked out.

And then the question is, do you give up? What do you do? I think that in the ideal situation, it is either through the second preliminary reference or the legislative action. Or, in fact, the action of the Council or the joint legislative amendment. So, in other words, there are several avenues in EU that can be used.

Let’s say if I take the Latvian system there, it is possible that the constitutional court in its judgment alerts the government that, that matter needs to be solved within an EU law, EU normative process. That is a possibility as well. What it means is [00:28:00] that one has to know by now, also as a matter of national law, one has to be very much aware of all of the procedures available in the European Union law. And in fact, it means being actively part of that process. We are not yet there.

Some are maybe more advanced, the others are less advanced. But in fact, what I’m saying is that there are plenty of avenues where the constitutional courts are concerned to engage more actively, either through alerting the government of its responsibility, for example, or through formal judicial dialogue or informal judicial dialogue.

So there are these means. That, of course, if we are to use everything [00:29:00] that we have, and we have a lot, that requires to activate constantly also your EU law mind, I mean, as you adjudicate the case. I’ll give you an example. We were in that mindset. That was the last case I did in the Latvian Constitutional Court.

We had, and we still have, unfortunately, a case of Russians demanding that they should have public schools in Russian language. We inherited that problem from the Soviet occupation times, because the two systems were segregated, education in Latvian language, education in Russian language, and we were not allowed to merge.

That turns out to be a huge problem now. Anyway, finally the government was strong enough to say we can’t keep these segments of society apart. It simply is a major national security consideration, which it is. [00:30:00] And the case, one of the four cases in the Latvian Constitutional Court in the whole package of the reform of language of instruction in education system was language of instruction of higher education, the universities.

And it so happened that we had a case of private universities. Which, of course, is a different issue. Now, in that case, when deliberating we realized that in fact we can’t quite decide the case solely based on our constitutional values, which contain Latvian language as the only state language.

Because it’s private universities, these are establishments; and in view of freedom of services and establishment in the EU, we actually would really want to know what the Court of [00:31:00] Justice has to say about that. We did realize that that is an issue of real interest for European Union as such. Not just – it’s not a small Latvian, or not so small, Latvian issue.

Finally I had the majority, not everybody, but I had the majority [on the bench] for submitting a request for preliminary reference to the Court of Justice. And so from that, you have really one of the leading constitutional cases by now on EU / Latvian constitutional law, Cilevičs and Others, September 2022, I believe,where the Court of Justice could for the first time, in fact, propose its view on how do you balance a [00:32:00] value which is central to the Latvian nation – we don’t have many, but this one is: Latvian language. It is still threatened, and actually it is. And there are the fundamental freedoms of constitutional ranking as far as EU law is concerned. So how do you go about this? So there you have a true, in a way, prima facie confrontation, of the fundamentals on the one and the other side, and the Court of Justice proposed the solution.

 That solution serves everybody now in the European Union. So you have to be with this type of mindset. You have to be not with the mindset of isolationist, “I keep to myself” or “I impose just my own standard.” Because we could have easily said, “The Latvian language is so fundamental, so we say, ‘No, no, no, we impose it.’” But you have to be [00:33:00] with a mindset that you are part of something bigger. And if you are with that mindset then of course you immediately look for what are the procedural and other ways of solving these difficulties.

And it is normal they are there. I would be more afraid if there were no differences of opinion on the values. Because the reason we need these differences of opinion is what I call democracy and plurality. It is that that, you know, makes you strive. Because we definitely should avoid having just one opinion from the start.

I don’t believe in that. I believe that it is process of dialogue which should lead to the agreement.

Katerina Linos: Thank you so much for mentioning that case. I haven’t read it, but I will, because I come from the member state of Greece, where our constitution has public higher education in it. And there’s a big question about universities [00:34:00] teaching English language courses, because again, we have a minority – all kinds of questions.

Judge Ineta Ziemele: We addressed that in that judgment, also English language and [other] EU languages, because in Latvia what we did and for good reason, we really privilege EU languages and programs in EU languages, since in terms of the language proficiency, we are a little bit lagging behind, still for the reasons of the long Soviet occupation. And so the question was whether privileging EU languages actually discriminates the Russian language. The decision at both levels, national and EU, was it does not discriminate.

Minority language, that’s maybe not the right analogy because we have the Russian minority, which is not very big, but then we have Soviet settlers.

Katerina Linos: In Greece, we have treaties and Turkish minority schools in the lower levels, and the big question is English language or French language and [00:35:00] freedom of movement and establishment for private universities, and we might have a constitutional amendment. So I really need to learn, to look at that case.

But one of the most fascinating ideas in your article was the idea of dialogue with national courts. And let me be a little bit more specific.

In the Strasbourg jurisprudence, the notion of margin of appreciation is very widespread. And in the jurisprudence of the Court of Justice, I can’t find the equivalent. The only thing I can find is maybe Article 4 and some emphasis on what national identity is. And in your article, you propose the idea of a reverse preliminary reference whereby the Court of Justice will go to the national constitutional court and say, “You, Latvian Constitutional Court, tell us what national identity means in this context.”

Could you talk a little bit more about margin of appreciation, national identity, and?

Judge Ineta Ziemele: That already exists, in [00:36:00] fact. The Court of Justice, it may not be used very often, or was not used very often, but again, you have to of course look also at the Court of Justice along with the evolution of the EU law as we discuss it right now and evolution of our understanding of the stakeholders in it.

That is also a part of development as far as I can see. But the Court of Justice has the procedural tool as we speak, to, in fact, go back to, for example the Constitutional Court and ask for clarifications. That we have. The question really is the mindset. You have to get to that mindset to use actually the procedural tool.

And as far as the adjudication on constitutional values is concerned, at the national level [00:37:00] and common values at an EU level, of course, we also have to basically accept that it is not necessarily such a big part of the Court’s work; that’s one thing. And the other thing is that when we get to those cases, we can call them constitutional cases, we have a chance to pose ourselves the questions you’re asking me right now.

But coming back to your question on margin of appreciation. Now the comparison between the Strasbourg Court and the Court of Justice, first of all, it doesn’t work. And it should not be used. Because as far as the particularities of the Convention are concerned, we apply Convention in accordance with Article 31 of the Vienna Convention on the Law of Treaties.

 In Article 31, you have a clear indication [00:38:00] of the evolutive nature of international rules, that you put them in the context of the evolution of the practices of the states. So it’s a very, very different logic. The logic that comprises the process of development of regional custom, et cetera, et cetera – so the Convention is a living instrument – is natural, I should say, to the way treaties function in state practice. Therefore, there is such a need and also why the drafters, when drafting the Convention, already implied the margin of appreciation. When we look at the Convention as a living instrument, of course, you need to have also the margins for the member states.

So that’s, altogether a very different logic. Such a logic does not work in the EU law. The reason why it doesn’t work is because EU law is [00:39:00] concretized in such detail in the secondary legislation, unless the legislator has specifically pointed out when legislating, referring back to the national law. As far as directives are concerned, this can be a minimum harmonization, but then we have alsoa maximum or complete harmonization.

Katerina Linos: So, the logic of the Convention simply does not work. As far as the EU law is concerned, it’s just so different. And so it’s complicated. Much more complicated than maybe meets the eye or people normally think. So that is one thing. If the legislator has given us the right to say that there is a margin, we will say as a court, but the definition of margin consists really by the legislative choices that we [00:40:00] find in the text. Let me ask you about European identity, European values, Article 2 and the tensions with Hungary and Poland. Some would say, “Article 2 should not be justiciable, and it’s crazy that the Court of Justice interpreted Article 2 in a way that imposes really specific rulings on some member states. This is a way to make a very diverse union, homogeneous, and impose the preferences of the judiciary on the member states.” While others say, “At a minimum, judicial independence is a common European value. This decision, if anything, did not go far enough.”

How do you think about the new Article 2 jurisprudence? How far should it go? How do we respect the diverse constitutional traditions of member states? And given that you’ve [00:41:00] spoken about this, what is the essence of European identity?

Judge Ineta Ziemele: Well, we said it in so-called conditionality judgments. But first of all, van Gend & Loos. Let’s start there.

So, EU law as a new kind of legal order of international law – which was interesting at that time [in 1963]. Now, if you look at conditionality judgments – there is a development, right? Because we say in conditionality, well, because of Article 2 [TEU], agreed upon by all of the member states, we are now already talking about European identity as presented through common legal order based on Article 2 values.

So if you compare van Gend & Loos and conditionality, you can [00:42:00] clearly see that we have moved from something that was really belonging to international law to something that is more akin to constitutional order, I would say. If I search for some analogy that I could use, then I see more analogy with constitutional law.

Although, again, I agree that I don’t know whether the member states would think that the EU law is a constitutional legal order. And while we have no agreement on that, of course, it’s only used by analogy, an intellectual frame of thinking. I noticed important development in conditionality judgments, which was based on the treaties.

That’s not the innovation of the Court. We had the dispute between Hungary and Poland and the [00:43:00] legislator, as far as the regulation on financial discipline was concerned. So, of course, we were interpreting the regulation, but as I told you, we had to make sense in interpreting that, and you make sense by making sure that the regulation is compatible with the treaty. And given also the arguments that were invoked, Article 7 of the Treaty concerning the expulsion of the member state for non-compliance with the values, and well, you know the judgments.

 In those cases we could not derive obligations on Poland and Hungary in the circumstances of withholding the EU’s funds from these states, because of the concerns of rule of law.

 Whether these judgments will lead to the direct application [00:44:00] of Article 2 one day in another context, [i.e.,] whether we might see that there are rights and obligations, strictly speaking, that derive from Article 2, that’s the question.

At the moment, I cannot really say that. Because we really need a case for that. I cannot quite speculate on it.

Katerina Linos: Let me turn to a different topic. One of the words you’ve used is living instrument, and I’ve heard other judges speak of living constitutions, and to me as an American, that language signals progressive rather than a particularly peculiar, textualist, originalist interpretation our Court has gone to, which – we’re the exception here.

But I wanted to talk about how the case law changes and needs to change as the world changes in an area where that’s most necessary, which technological change [00:45:00] and privacy. You’ve spoken while you were on the European Court of Human Rights about this challenge. There’s lots of case law of the Court of Justice.

And I wanted to ask, in light of a changing world, in light of a world in which Russia or China pose a different threat than they did, or are perceived to pose a really different threat today than 10, 15 years ago, do we think of the privacy rules differently? Do we think of the national security exception differently?

How do we change the jurisprudence in light of these evolutions?

Judge Ineta Ziemele: What I see so far, that would be the short and easy answer, that the European Court of Human Rights has been the first one to address the new world context, actually. And it does, the [00:46:00] European Court of Human Rights clearly takes very seriously national security threats.

And certainly the fact that Council of Europe needed to kick out the Russian Federation [shows it], which is shocking, in fact, that we have arrived at such a situation on the European continent. So yes, I see that in the case law of the Court of Human Rights they have had to grasp . . . it’s not easy for them, huh?

You can see internal frictions, you can see those judges who are more acutely aware of the Russian threat in particular, but also Chinese, you’re quite right. And then there are those of course, judges – it transpires in their dissenting opinions – that want to, keep it as usual, so to say, “The individual is the ultimate value,” in a way, [00:47:00] which from international law point of view is maybe not so easy, because that individual needs the state that protects and enforces his or her rights anyway. You cannot apply law in a way that in the end undermines the structures that are meant to protect the values and the individual, and provide balance actually where the rights are clashing, of one individual and the others.

But there are always these difficult discussions in Europe, in a way have always been. But now, of course, it’s more acute. Maybe it’s after all the common market and from that derives common justice and security and foreign policy and security policy. We don’t have to act on that much, except for the sanctions cases, [00:48:00] which might come from the General Court. We will see. Therefore it is kind of easier for the Court of Justice to, for example,look at the data protection and privacy, to really look from the perspective of what values we see as relevant in our common market, and how we would like our market to project to the world, and in relations with the competing markets, obviously. And given that the World Trade Organization is in great difficulty. So there are all these aspects.

Again, it’s a different reflection that this Court, in fact, leads compared to the way you pose the question. There is one fundamental aspect and that’s the one I have been discussing and that concerns the value of [00:49:00] privacy, as such, in the Western world, I should say. Although, our jurisprudence as a European approach and American approaches are very different. [Laughter] We really love our privacy, I think for good reason. I think I have tried to explain a more deeper meaning of it. Because privacy is really linked to the way our world understands freedom of a human being. What is a free human being? What is a creative personality? Because for us, creativity, individual creativity, is essential, whether to have new businesses developed, or arts, et cetera. And so in my understanding, the reason we protect privacy is, because if you want to keep your internal [00:50:00] freedom and creativity intact, you need that private space.

That explains the notion of privacy. Well, certainly as defined in the Strasbourg rulings, but also as defined here. There we are on the same page. And so that explains why Europe additionally, not only for national security considerations, but we are really concerned about what the new technologies bring to the private space of each one of us, and to that inner world that we would like to protect. I mean, how free are we? Given, everything that subconsciously potentially may influence and guide the personal choices. That’s a big question in the digital epoch that we live in.

Katerina Linos: And can I ask how you see the role of the courts?

Judge Ineta Ziemele: The courts [00:51:00] really protect privacy in this sense. That’s why there is, in Europe, this strong feeling that the courts should be protecting privacy because of how it is linked to our notion of human dignity of a free person. It’s totally Kantian, I’m sorry to say. [Laughter] We have not really, in terms of, the legal ideas – we are still with our Immanuel Kant.

Katerina Linos: So data aggregation by the Latvian government or by Facebook is just as worrisome as data aggregation –

Judge Ineta Ziemele: – It is worrisome. It is worrisome. Yeah –

Katerina Linos: – by the Russian government.

Judge Ineta Ziemele: That’s why you have the jurisprudence on Facebook, for example, on Google. This is why. Of course, the war next door brings another dimension to that and clearly existential, I should say.

Katerina Linos: The war in Ukraine, you said, had a big impact on the Council of Europe. Russia, the Russian Federation, was [00:52:00] expelled. You have served on the Latvian judiciary, on supranational European courts. How do you see this altered security environment changing the jurisprudence of the Court? In Brussels, there’s a lot of talk about prioritizing security, perhaps looking at the treaties and saying, “We don’t have enough provisions for common defense financing, we’ll work around this.” Are any of those issues coming to the Court or is there a bit of a delay necessarily, so these are not quite reaching you except through the sanctions cases.

Judge Ineta Ziemele: The Strasbourg Court is right in the middle of it, as you know, with the cases. Now they’ve just today rendered the judgment on Crimea, on the crimes committed in Crimea from the perspective of the Convention. no, For all the reasons and the specific features of the European Union and its legal order, for the time being, the Court of Justice as far as I can say, has norelated [00:53:00] cases – but of course, the president is best placed to have a better overview.

We had one case, a preliminary reference from the Lithuanian Supreme Administrative Court, where the war context came up. Russian and Belarusian activities, sending in so-called asylum seekers, where these States organize groups that they fly in from several countries. Iraq and the others, they pay the people, and they push them into, well, Poland and Lithuania and Latvia, in fact using the EU law, which is very detailed and very strong on international protection of asylum seekers.

And that is an interesting phenomena, if it wasn’t so sad, but [00:54:00] thephenomena is how the Russian Federation, is in fact kidnapping what the free world since World War II has tried to build, in terms of international legal order.

Let me end with a more positive question. So as you reflect on the last 20 years and celebrate Latvia’s membership in the European Union, what have you seen as big legal transformations, societal transformations? Am I right to use the word celebrate?

 I think the largest ever enlargement of the Union was really a change of paradigm in the Union.

We may have not fully embraced it yet, but objectively it was a change of paradigm. The Union changed at that moment. It became, on the one hand, [00:55:00] certainly more diverse. On the other hand what the ten States at that time brought in, and it’s still there, that is probably a new kind of conviction and belief in EU project, basically, and it came with a true force, this belief in common, something we can, that we should and we can, do together. So “convinced Europeans,” if you want.

I happened to be advising the Prime Minister in 1995. I was advisor actually on international law and EU law, “Communities Law” at the time, when we signed in ‘95 the association agreement. And so I’ve been standing by that process since.

And [00:56:00] what I saw was, in accession negotiations, after we signed the association agreement, the work that went into closing one chapter after another – I mean, the sheer amount of it. [Whispers] You just cannot picture it. Truly. And the resource that we have, it’s what, probably part of Berlin – that is the size of Latvia.

Although the history is such that the big states would probably envy us for our history. Anyway, I’ve been very proud of what the Latvian people managed to achieve, both to enter into the EU and NATO, and the way, in fact, since then, especially the judiciary has changed. I moved from politics into the judiciary, and I have seen the change, it’s been extremely [00:57:00] difficult because the Soviet trauma was such – I mean, I could give you a class on that. Many, actually. The Soviet trauma was such. . . also, in just an understanding of law. Because the understanding was that it all was a phone call from the Communist Party. That’s how judges functioned. Just think of it. And to completely change that, to actually understand law, as living, as reacting to society’s needs. To conceptualize what that reaction should be.

It’s been an absolutely fascinating process. It simply has completely changed. Certainly, the lawyers of my country have changed radically. Overall mindset changed. There we were touched the most by the occupation. Where the Baltic states started, [00:58:00] at the lowest possible point their return to Europe.

The crimes that were committed against our people are no different from what Ukraine is unfortunately experiencing. So our position was minus, minus, minus when we started. From there, to actually be, on a number of issues within the Union, some of the leading voices –

So I’m very proud of what the Baltic states have achieved, given where we started. It’s been an incredible journey.

Katerina Linos: That’s a great place to end. Thank you so much.

Judge Ineta Ziemele: My pleasure. Thank you. Thank you for asking all these questions.

Mark Pollack: We hope you enjoyed our interview with Judge Ineta Ziemele. I will say that one of the things that I found most fascinating about our interview was hearing her views about dissent.

As you all know by now, judges at the European Court [00:59:00] of Justice do not issue dissents, do not issue separate opinions. And by and large, the judges understand and defend the value of speaking with one voice. But in Judge Ziemele, you heard a judge who very much misses her opportunity to dissent as a Member of the Strasbourg Court, the European Court of Human Rights, and as a Member of the Latvian Constitutional Court. In that sense, it was one of the most interesting interviews that I had a chance to listen to and participate in. And if you’re interested in this question of dissent at the Court of Justice, we will link in the show notes to an article that Jeff Dunoff and I have written on that subject.

Katerina Linos: Thank you in particular, to our producer, Toni Mendicino, who runs like crazy from morning until night to make sure every detail of our podcast is perfect; to our sound engineer, Keith Hernandez, who helps [01:00:00] us with the easiest iPhone fixes and the newest recording devices; and to the many staff members of the Court of Justice who have made producing this podcast not only possible, but a pure pleasure.

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