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European Union Court of Justice Series: Interview with Vice President Thomas Von Danwitz

Episode #3 November 01, 2024
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European Union Court of Justice Series: Interview with Vice President Thomas Von Danwitz

Episode #3 of the Borderlines CJEU Series features CJEU Vice President Thomas von Danwitz in conversation with Professor Katerina Linos (Berkeley) and Professor Mark Pollack (Temple University). Vice President von Danwitz has been a Judge at the Court of Justice since his nomination by Germany in 2006. Elected as President of Chamber by fellow Judges, he sat at the Court in that function between October 2012 and October 2018. In October 2024, Judge von Danwitz was elected by his peers to serve as Vice President of the Court of Justice.

As the first guest welcomed back to conduct a second Borderlines interview, Vice President von Danwitz further develops his incisive observations regarding the CJEU’s fundamental role in Europe’s integration project. His renowned expertise on cases involving surveillance and the regulation of technology, and the role of the German Constitutional Court in dialogue with CJEU decisions, gives listeners a unique look behind recent impactful rulings. Vice President von Danwitz also reviews key Court concepts and functions such as judicial independence, injunction procedures, and the ongoing evolution of competences undertaken by Europe’s highest court.

Vice President von Danwitz read law, politics and modern history at the universities of Bonn and Geneva, completed his doctorate in law in Bonn in 1988, then graduated from the National School of Administration in Paris, France with an international diploma in public administration in 1990. He joined the Faculty of Law and Political Science at Bonn University in 1996 and was appointed to professor of public law and European law at the Ruhr University Bochum in the same year, where he later served as dean of the Faculty of Law. He taught German public law and European law at the University of Cologne, where he also directed the Institute of Public Law and Administrative Science. 

Vice President von Danwitz has held several visiting professorships, including at the Fletcher School of Law and Diplomacy at Tufts University and the University of Paris I, Panthéon-Sorbonne. In 2005, he completed a teaching and research fellowship at the University of California, Berkeley. From 2004–2014, he was a member of the Executive Committee of the Association of German Jurists (Ständige Deputation des Deutschen Juristentags). He has published numerous scholarly works in the field of German public law and European law. Among many accolades, Vice President von Danwitz was made a French Republic Knight of the National Order of Merit in 2002. He is also the recipient of an honorary doctorate from the Université François Rabelais de Tours. 

Some of the cases and sources mentioned in the podcast:

Select speeches by Vice President von Danwitz for further research:

Holiday card (below) issued by GOD [IT provider] captioned, “GOD Wishes You a Merry Christmas and a Data-Secure Year 2023!”
Vice President von Danwitz pictured at bottom warning the EU to halt unsafe data transfers:

cartoon

Citation:
Linos, Katerina and Pollack, Mark. Episode #3: Interview with Vice President Thomas von Danwitz. Borderlines podcast, European Union Court of Justice Series (Nov. 1, 2024).  https://www.law.berkeley.edu/podcast-episode/european-union-court-of-justice-series-interview-with-vice-president-thomas-von-danwitz/

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Episode Transcript

[00:00:00] 

Katerina Linos: Welcome to Borderlines. I’m Katerina Linos, Tragen Professor of Law at the University of California at Berkeley. 

And I’m Mark Pollack, Freaney Professor of Political Science and Law and Jean Monnet Chair at Temple University. 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. Between recording this interview and releasing it, we received some wonderful news. Judge Von Danwitz was elected Vice President of the Court of Justice. Congratulations, Vice President von Danwitz!

Mark Pollack: In this episode, Katerina interviews European Court of Justice Judge Thomas von Danwitz, who joined the Court after a distinguished career in German academia. This interview is somewhat unusual, insofar as Judge von Danwitz was [00:01:00] recently invited to give the Tragen Annual Lecture at the University of California at Berkeley, and Katerina had a chance to meet him and interview him for Borderlines at that time.

Katerina Linos: Indeed, it was Katerina’s interview with Judge von Danwitz that gave us the idea to pursue the current project, and Judge von Danwitz was absolutely instrumental in putting us in touch with the President of the Court, Koen Lenaerts, and encouraging and welcoming us when we arrived at the Court in Luxembourg. I was absolutely thrilled to get the opportunity to interview Judge von Danwitz for a second time. And here’s why. First, when cases about “Big Brother” surveillance and privacy are assigned to a specific judge, they go to Judge von Danwitz. And now that the GDPR has already been implemented to a large extent, but there are many, many cases coming up on the Digital Services Act, the Digital Markets Act, and the [00:02:00] AI Act, speaking to someone who has a key role in the regulation of technology is a real pleasure.

Another reason I wanted to do this interview is because Judge von Danwitz has a unique perch from which to understand the conflict between the German Constitutional Court and the Court of Justice, a conflict that seems to have quieted down recently, but could come up again as the EU expands its competences. Finally, I’d like to point interested readers to a difference between the interview that will follow and other interviews, in the methodology and legal philosophy and interpretive techniques. Judge von Danwitz comes across as more formalist, more textualist than, for example, Advocate General Ćapeta, who is more realist and purposive in her [00:03:00] interpretive techniques.

And one of the big privileges of interviewing multiple decision-makers on the Court of Justice is to note some of these divergences in legal philosophy.

Judge von Danwitz, it is such a pleasure that we get a second interview. It is so wonderful that you were able to come to Berkeley, that you delivered the Tragen Lecture, which we will publish soon, that I got to hear a lot about how you grew up in rural Germany, how in your family legal education was not the tradition, how you worked in the German and French legal tradition.

I think, for audience members, part of the interviews with other Judges are more biographical. But because we already have that, it is very possible for me to go further on harder questions. 

So, tell me about the case law this year. 

Vice President von Danwitz: We have about, for this year to expect 900 [00:04:00] cases, out of which there will be 600 preliminary rulings. Behind those 600 preliminary rulings, what you have to know is that there is, of course, a national litigation going on. But it is, of course, private parties that would initiate a preliminary ruling. That means that there is a lawyer who would ask the national judge, “Look, we have to interpret Union law,” and that’s why your assessment is just a preliminary one. You should address a preliminary ruling procedure to the Court of Justice. But whether the judge does that or not is in the first two instances in his or her complete discretion.

And there is nobody on our side of this world, questioning that we do not go into that, and ask whether this discretion is [00:05:00] well-placed or exaggerated or not. This is completely discretionary, a way of national procedures. Only the last-instances court are by virtue of the treaty itself under an obligation to refer a case.

So what I’m pointing at is that in those roughly 600 cases, there are judges who think that our answer to the question he is posing, or she is posing, is not completely useless. Or at least that he has to into account in order to satisfy the party requiring it. So this is something that is very far away from politics, so to speak, and from policy considerations.

And if you would look at all those cases, not at all 600 at one time, but if you look at those cases, they would ask for the [00:06:00] interpretation of, for example, the rule on exonerations of VAT on a certain service or product. So whether you like the European Union, or you like it not, or you like more integration or less, it’s very difficult to draw a line between those cases and those, I should say, rather political or integrationist arguments. And we have a lot of those cases. For example, we had two cases recently, which I think are rather interesting, on the protection of the wolf and the question whether and under which circumstances, wolves can be shot.

We had years ago a case that everybody calls “Tapiola / The Finnish Wolf” and now it’s the Austrian and the Spanish wolf. Nice. So [00:07:00] this is because this regulation has been enacted on the European level. And by the way, the European Union is bound by international law, by what is called the Bern Convention.

So the Union could not even by itself change the law without having initiated the procedure of changing international law before. Well, of course, you will meet as parties, the government which are alarmed by people saying, for example, people in tourism say, “If there are wolves all around, that will harm tourism.”

And on the other hand, there will be NGOs protecting the wolf. And so they will meet in front of the national court. But then, of course, they realize that this has become a matter of European law. The link to European integration in the sense described is there again rather limited.

It becomes a matter, are you in favor [00:08:00] of protection of the wolf? Against? Or for us judges, what does the law say? [Laughter] And this is the second point to which I want to come. Beyond those examples, in most of the cases – and this is again why the parallel drawn to, between this court and constitutional court, is in a way correct, but in a way not the full story. to my taste, it’s if at all half of the story. Because the full story would tell you that in, I should say, 80 to 90 percent of the cases, we have secondary law to interpret, by which we are in principle bound. 

So a constitutional court usually does not have too much . . . U.S. Supreme Court, when do they interpret statutory law? Is that 50 [00:09:00] percent of their cases? I would guess it’s less. So for us it’s the opposite. And you have this nice question about Schrems. There is a statutory provision which is rather young. It’s very recent law. So you have the lawmaker telling you in case of transfer of data, “This happens, if,” and then you have conditions.

And this is of course what the judges have to look at in the first place. And then of course we have possibility to interpret in conformity and we have, we even have of course the possibility to invalidate. But, it’s always the background of our activity in, I should say, really most cases that the Union legislator has spoken and that there is statutory law.

And this is flavoring our [00:10:00] constitutional mission in a very particular way. What I want to point at is that it is precisely that very often we see that – this is, very normal in a sense of a political or a public process – that the Member States that have not agreed to a directive in Brussels but that was finally enacted and that had to be transposed will come and have difficulties with their national law. Because the transposition falls short of the directive as it was enacted, quite logically. So, because they didn’t want it in the first place and so their will to follow that the last comma or half sentence is of course limited. And then you have, of course, NGOs picking up [00:11:00] precisely those countries to find out where legislation falls short of EU law. So they are, in a way, policing what the Commission doesn’t police; they are policing. And they all to us, and here we are. 

And then, of course, there is quite a – how should I say? – quite a natural perspective for a judge to say, “What is the sense of that directive? How far does the obligation to transposition go?”

And then the Commission is in every proceeding, tells us, “Well, the directive effectively intends to regulate this and that,” and so on and so forth. And of course, the Member State in question would say, “No, no, no, this is going way too far.” And maybe he brings up two and three others. And for them, it’s the end of the world if we decide the way the Commission wants. And this is, of course, a big political question, and the Court [00:12:00] is superposing itself in terms of, you know, bringing Europe to a much faster speed than what was intended to. 

“Be careful with what you believe,” is what I always say. I have seen a lot of things changing with political circumstances. Countries have changed positions within [claps] one day after an election. So everything can happen very smoothly. And that’s why the classical subject, that we are in a way interfering directly in the integration process, is at least not what is our principal role. And a lot of this comes from simply because the texts, objectively speaking, or rather objectively speaking, tend to have a broader meaning than what one or another party would concede.

And [00:13:00] it’s then on the background of those conflicting arguments that the logic is created, that the Court is giving preference to a reading that is more in favor of European integration than the Member States. But here again, in most of our proceedings, there is just one or two Member States, and even in the big ones, in the very controversial cases, we might have seen 15 Member States coming along.

But the 12 others who did not show up were, of course, on the other side. Otherwise, they would have shown up. So it’s not the case where we had the case with 27 Member States saying one thing on one side, and then the Court decided another way. Yes, we had that case, but this is a big, big exception.

Katerina Linos: Which case was it, out of curiosity? 

Vice President von Danwitz: That was 2/13. That was on the accession to the European Convention of Human Rights, where [00:14:00] the Court ruled that at that point in time it was not possible. So that was not really that we fostered European integration [laugher] with that decision. So it really doesn’t fit in the classical makeup of the argument. 

Katerina Linos: I’ll ask you to correct me when I ask political questions or misinterpret the role of the Judges. So I’ll start with Schrems. Because to me, that can be seen as a series of political questions. I come from California. The companies say, “No, no, no, like, our whole business model will collapse if the Court does this.” And the way you as judge rapporteur ruled on Schrems I, Schrems II, all of these decisions – you can read them as putting in place the fundamental right to privacy, saying on a purely textual basis, “It looks like the Transatlantic Agreement [00:15:00] covers the private sector, but really does not cover government surveillance. So clearly this agreement is lacking.” 

You can make a textualist argument, or you can talk about the political significance, which was very significant in some parts of the world. It still is very significant. The technology is changing. The security risks are changing. So maybe I’ll start with that series of cases.

There is a right to privacy that needs to be balanced against governmental concerns in the national security sphere, in the policing sphere; economic concerns. And it seems that the jurisprudence of the Court has left some leeway for national security exception. When you think about that, some critics of the Court have said, “Look, you’re very, very concerned in Schrems about the National Security Agency, about American [00:16:00] surveillance, but to the extent the French government or some other European government is also surveilling widely, they’ve been given a broader margin.” Cases about Chinese companies or the Chinese government have never come up. The Commission has not proposed an agreement. 

How do you think about how you balance kind of, a universal right to privacy with the fact that different governments have different practices and do you think differently about data that is amassed and is held somewhere by Facebook and they know everything about you, versus by a government?

Vice President von Danwitz: Well, I fully understand that perspective and those considerations. What I would like to point at, in the first place, is that it is very difficult for a judge, having just one case at a time, to develop the full logic of a reasoning [00:17:00] that goes beyond that case. And in particular for our court, it is because we are respecting that we have limited powers, and we are respecting that areas which are not covered by Union law should not fall under our judicial competence.

So that is why we try to stick to the facts of the case and in particular to the questions referred by the case to us. In the Schrems case, or rather in the Transatlantic, there was as well a number of Meta platforms cases in the meantime, the environment or the background for all this should at least be noted.

As you know, there has been a directive on data protection, the famous Directive 95/46. I don’t want to say that nobody really cared [00:18:00] about it. But it was not considered to be, in many respects, in many circles . . . one could get the impression that this was considered more of a soft law than anything else.

And when business models were designed, I wonder whether people were very well informed about that directive existing, and the limits that that directive might impose on business activities in Europe. This is the first thing. 

The second thing is, if my information about history is correct, of course, some companies were not really happy about the GDPR to exist, and they would have rather liked the GDPR not to exist.

The third aspect that you should know is of course, now, a very simple point, [00:19:00] about personal data of Europeans. We are not talking about personal data of Americans, Chinese, or South Africans. It is Europeans that enjoy the rights enshrined in the GDPR and in the Charter. Full stop. 

And courts are, as you know, charged to check whether those rights are respected or infringed. So this is a very basic logic. And now coming to the Schrems case more precisely. There are – this was, in a way, the reason why I put up this introduction before. There is precise regulation, there is precise statutory rules on the conditions under which transfers of personal data to third countries or international organizations can take place.

[00:20:00] And in the first, it’s Article 44 and following, and let me just read out Article 44. And this is a rule that was enacted on April 27, 2016. So we did Schrems in 2020. So it was only four years old, that rule. The rule reads, “Any transfer of personal data which are undergoing processing or are intended for processing after transfer to a third country or to an international organization shall take place only if, subject to other provisions of this regulation, the conditions laid down in this chapter are complied with.” The rest is details. 

So you see the logic. It’s in a way a logic that one can agree with, or that one can be in complete disagreement with. But the logic is, “This [00:21:00] is, so to speak, our data. We are not, in principle, not sharing it with anybody else, except the conditions that we have posed are met.”

This is the logic of this chapter. If you like it or not, it’s another question. That is how we understand the text of the statutory law. And to be more precise on the adequacy decision, Article 45, paragraph 2, under (a), reads as follows: “When assessing the adequacy of the level of protection, the Commission shall in particular take account of the following elements: the rule of law, respect for human rights and fundamental freedoms, relevant legislation, both general and sectoral, including concerning public security, defense, national security, and criminal law, and the access of public authorities to personal data,” and so [00:22:00] on and so forth. And there is another, number talking about effective legal protection and independence of our supervisory authorities, and so on and so forth.

I’m just citing all that to say, Schrems, as many other cases, did not invent criteria or did not take a political position out of the blue, out of nothing. But that was the decision that was in much more modest words already laid down in Directive 95 and then fostered and reinforced, in a way, by the GDPR. And for the Court, it is very difficult to say that it should not be bound by that as long as you don’t have an element to invalidate. [00:23:00] So of course, theoretically, one could have imagined an interpretation putting all those criteria to a very limited or to a very low threshold for the application and for finally accepting adequacy.

But this is very difficult to reconcile with, of course, the findings were not really contested, that this kind of data was in fact collected on a large scale and was used on a large scale, without making distinction between content data and traffic data. And this is why all I’m saying is that the reasoning in Schrems is rather close to a first reading of the statutory law than the other way around.

And of course, the rest is the decision of the Court, and of course at the end of a judicial proceeding. [00:24:00] And here I have to stop because there might be a new procedure coming up one day. But this is just to explain how have to look at the legal argument in conjunction with the political argument that is made.

And that’s all I want to stress for the moment. 

Katerina Linos: So let me ask about the changing political context. So at the time, the Snowden revelations had shocked the world, including the Europeans, on just how much data was collected. Now we know a ton of data is being collected. Perhaps some of that intelligence has really helped the Ukraine efforts. We’re so worried about misinformation. Does this different environment mean something different about how the next agreement between the Americans and the Europeans will be interpreted? Does the jurisprudence change, or the scope of the national security exception change, as the world changes?

Vice President von Danwitz: I have seen some newspaper articles, but I’ve of course not seen [00:25:00] any texts. But what I learned from the newspapers’ articles is that in fact texts have changed. And I’m not talking now about the Commission decision, but texts in the United States of America have changed.

Whatever those texts are, of course, then we will look with a completely fresh look into those texts, because if provisions have changed that might accommodate risks or hesitations, then of course, we need to do a completely new evaluation and decide whether those changes have, in fact, changed the situation and changed the conclusions that we might draw from it.

Indeed, the political contexts have changed, but – and this is a very difficult way to express things – our text, talking about the GDPR, has not changed. The text has not changed, the environment has changed. Now, in U.S. terms, [00:26:00] I don’t know whether an originalist interpretation would take those changes of the political environment into account, or would not.

have less of that problem, because we think that it’s, anyway, a living constitution, a living legal instrument. So we could of course reflect on that without having too much trouble in terms of our self-understanding. But, here again, we would have to check because it has been a two-fold argument in Schrems.

One was on the massive character and the absence of guarantees, and the other was in particular on the question of judicial redress. And how that can be addressed in terms of the guarantees that are in this text, again, for European citizens, because it’s their data.

Of course, nobody talks about data that is collected in some non-EU countries for whatever purpose is [00:27:00] collected for. This is again the specific challenge that we might have to face when next Schrems case or the next case of that nature might come up.

But again if there is new elements, and I have understood that the Commission has identified new elements, and has based the conclusions on new elements, then of course for us this is a completely new procedure and it may be that all the principles in the old jurisprudence remained valid, but we come to a completely different conclusion, because the case is different, because the facts of the case are different, because the legal situation in the U.S. has changed, or the arguments that the Commission brings forward why the adequacy decision is still in line with EU fundamental rights will convince us. So we are very open, and that the Court has always done. We have to do that. 

Katerina Linos: And then in terms of the texts, there’s [00:28:00] the GDPR, but there’s now a lot more text regulating technology – the DMA, the DSA, the AI Act – those cases, or the GDPR, is still likely to . . . I’m just wondering about the delay in enforcement actions and preliminary references. When are you likely to start hearing a lot of cases on those new texts? 

Vice President von Danwitz: Well, in a way, we have started to have cases, but of course it is something that will always take some time to arrive at our court. My feeling these days is that as much as we are on GDPR, we enter in a kind of a second phase, where now the questions that we receive are more detailed, are less broad in nature, and are more a kind of second wave. Personally, I guess most of the big questions have at least been touched upon. There is still room for evolution, but my guess would be [00:29:00] that there is no big elephant in the room still waiting to be discovered, so to speak. 

As far as DSA and DMA is concerned, the situation is quite different. Yes, cases have arrived, but they arrive differently. They arrive in principle not through the preliminary ruling procedure, which can be a rather fast procedure, because all that it needs is a first instance court, ready from the first day of the proceeding in its national court to bring the case to us. And then here we need between 12 and 20 months, so to speak – a big case, maybe two years, but that’s what we need. And then the delay is, the DSA cases come through the Commission basically, because there, for example, the question is, “Is Amazon a gatekeeper?” Or will other companies be subject to a specific regulation? That is something that the Commission has to establish. And then of [00:30:00] course, companies have the right to bring action against that, which in principle go to the Court, to the General Court now.

And because those questions are this important as well for competition on the markets they of course, ask for injunctions to be given. The companies, Amazon for example, ask for an injunction against the Commission order that it should be treated as a gatekeeper. And then the General Court decided on the matter in the injunction, and then on appeal of the Commission, the case came to the Court, and then on injunction it was decided. And then, of course, it goes back. The main case will follow, and that will take, I guess, three to five years. But I mean the question, “Is a company subject to special obligations?” is already dealt with in advance and I guess all the follow up [00:31:00] questions will use as much as they can the injunction procedures, so they will arrive rather rapidly.

I guess the next five years we will see a lot of DSA cases. I hear that everywhere people are hiring, whether it’s the Commission, whether it’s here, are hiring new staff to face that challenge. And it is a big challenge, that is for sure, because texts are very complicated. But there again, we are, in a way, in the GDPR situation.

We have brand new statutory provisions and they have been dealt out in Brussels. We don’t know what they contain, but we will have to make sense out of it. 

Katerina Linos: Fascinating. So just to understand procedurally these injunctions, are they considered interim measures? 

Vice President von Danwitz: Yes. 

Katerina Linos: What does that mean? Does that mean there are time limits? 

Vice President von Danwitz: Could be, but most of [00:32:00] the time in those kind of constellations, they would normally run until the main proceeding has been decided. In the current situation, if I’m not mistaken it’s simply the question whether a big tech company would be subject to special obligations, yes or no.

Take, for example, one of those obligations, because we have that case law in our court’s jurisprudence already on Meta platforms that the Court ruled a year ago that there might be the necessity to have special protection for children. So there are other services where that ruling of this court might have a kind of application.

So I’m just now making up a case that doesn’t exist in reality. But supposedly the Commission would say, ‘Well, that is what the Court said. Can we make out of that something? And [00:33:00] there is this-and-that enterprise, and are they really complying with that obligation to protect children?” And if then the Commission would say, “No, you don’t. That’s why you may not offer your services in this-and-that way, but you have to introduce protective measures.” For example, to check – is this was in the news – that a pornographic channel – the question whether the normal click, “I am over 18 years old,” would suffice for protection of young people. So just take that simple example, because it’s so simple. So the Commission could say, “Well, that doesn’t suffice. You have to have other protection measures. you Have to introduce a way people can identify themselves before looking at a certain content.” And then of course, this will be contested by the company in question, and then of course the case will come.

And [00:34:00] so the injunction would run as long as the main proceedings have not been decided on the same question. So then the Commission would say, “We can do that,” and the Court will have to decide whether the Commission can temporarily impose that obligation or not. 

Katerina Linos: So just so that I understand, really big picture, if a company wants to merge and a procedure takes a year, then the merger goes away.

The opportunity, like timeliness, is of the essence. And if on the other hand, there’s a different tech company that needs to put money in escrow, then that money can be released after five years, after ten years. Under the Digital Services Act or the Digital Markets Act, if the Commission decides that in order to be able to access certain services, you need to verify ID using a national identity document. It’s an onerous obligation. 

Until the [00:35:00] Court rules, is the company obliged to change its business model or not? 

Vice President von Danwitz: That could be the outcome. Or the other way around could be the outcome, that the company is entitled to use the business model as it used to unless the Court and the main proceedings has decided the other way around.

So this is basically the two really opposite options that there are, and of course they have a direct impact on competition conditions. This is quite plain. So this is why I’m saying we will see a lot of that in the next five years to come to this court. In the first place to the General Court, but then to us.

And of course this is a main area where the Commission has to act, but it’s on their behalf that those cases come. There is of course a [00:36:00] possibility that an NGO could initiate judicial proceedings in front of the national court. But this is far less likely to happen and it will be far less – qualitatively speaking, it will not be cases that might make their way through.

So I guess, in that field, you’ll see most coming from the Commission. But the main proceedings will there take longer than through the preliminary ruling procedures. That is true. We might then have to introduce a fast lane. We have, but more on a personal level, discussed already this. But there is no conclusion to be drawn so far. We just know that in some aspects it is not a good idea to have cases which highly impact on international competition conditions wait for, let’s say, [00:37:00] five years in the General Court and then another two years in our court and then eventually go back once again for another two years and then being decided after nine years or something. This is not really satisfactory, we think. So we will there have to check. 

Katerina Linos:  This is fascinating.

So there might be a new procedure because gatekeeper designations are going to be challenged. So you’ll come back to California to talk to us because suddenly people are very interested. And they’re all –- everyone wants to talk about the AI Act, but the lawyers are all working on DMA, DSA, and their EU laws suddenly have a lot of interest to Californians. 

But let me turn to a question that I think is more settled at this point, and that’s a question about dialogue between courts. 

One of the interesting dialogues that I think has been resolved was the question of dialogue between the German Constitutional Court and the [00:38:00] Court of Justice. So to me, it was fascinating that the German Constitutional Court finally sent some preliminary references. The Court of Justice did not reply in a satisfactory way.

The German Constitutional Court said, “Ultra vires.” There were infringement proceedings. 

Would you say that this judicial dialogue, now that it has been resolved, worked well?

Vice President von Danwitz: Is this glass half full or half empty? It’s very difficult to answer without elaborating a bit on the background. And well, to start off, I think this is a fascinating subject in particular for people in academia, because you see conflicting decisions, you see conflicting tendencies in what the law is, and of course you have to ask very important questions, how this can all come about. 

[00:39:00] But, at the same time this is, of course, a very practical matter. Because this is, of course, about relationship between people and communication between judges, which communicate, of course, in conferences; which communicate in gatherings, which we have very regularly; and which, of course, communicate in judgments.

And of course, judgments are only one part of that communication. So the subject is more complex than it might seem if you just look at judgments that are rendered. So my first remark would be that it is always a good thing if a court of last resort considers that it is at least useful, if not obligatory, to ask a question to the Court [00:40:00] of Justice if that court is deemed to apply European law. 

The question of the German Constitutional Court was particular because it was not on a case happening in Germany on the application of national legislation that was transposing a directive or something of that nature, but it was on the decision of an EU institution, that has its seat in Germany, but this is, of course, completely irrelevant.

And this is why this flavored very much the case – the underlying case. And of course the other element that was flavoring is that there has been a big debate on what line of economic and monetary policy should be adopted by the European Central Bank at the time in question. That having [00:41:00] said, we did not take the case as an interference of the national Constitutional Court of Germany into a sphere that was not up to judicial review by that court. But we simply answered the questions in a way that was, by that court, not considered to be satisfactorily.

But the result to which the German Constitutional Court came was that it was an ultra vires act because there had not been a sufficient motivation. So I’m now not asking the question whether a sufficient motivation would have avoided an ultra vires act and what the [00:42:00] relation between motivation and ultra vires, or competence, is.

But I’m just saying that even in the decision that, of course, this court, did not like very much in terms of that it was disagreeing with our result, was trying to avoid a very clear stance on what the perfect division of competences was, whether it was a national competence or an EU competence.

Certainly it was claimed to be a national one, but that finding was linked to the lack of proper reasoning. So this is just to say that already in the beginning there was an interest for both our court in responding openly to the question and of the German [00:43:00] Constitutional Court in the way they finally formulated their critique to, you know, not have a frontal clash, but to remain on the orthodox positions that you could, or would, accredit to each of those courts but at the same time leaving scope for evolution. So I think this is important to come now closer to your question. Since then, of course, things have changed. Generally speaking, we have been refining our discussion on motivation, on the way we try to elaborate our judgments.

One of the reasons why they become longer, because we try to be more exhaustive. And on the other hand, we have seen that the German Constitutional Court has moved on. 

For example, has not continued a line of[00:44:00] jurisprudence that has created a lot of discussion not only in Germany, but as well on the European level on the 3 percent hurdle for the election to the European Parliament, which was considered to be a violation of the equality of votes in a judgment of 2013. And now, quite a recent judgement – that line of reasoning has been abandoned. And now the European Parliament is treated in that respect like a national parliament, where that kind of barrier, which is designed to ensure that the functionality of a parliament, is considered to be a valid round the distinction of the value of a vote. So we have seen those evolutions and we have seen a lot of very positive moments in the so-called informal communication on conferences, on visits. We had, for example, the vice president of the [00:45:00] Constitutional Court, the chairperson – the chairwoman – of the Second Senate that was giving judgments in those matters following the presidency of Professor Voßkuhle.

She was here to give a talk on the 75th anniversary of the German constitution. So the contacts are very close. Regularly, there are visits. The next visit will be in September. Not only the U.S. Supreme Court is coming in September, but as well a formula that we call “Six Courts.” So this is: this Court; this is the Strasbourg Court; this is the German Constitutional Court; this is the Austrian Constitutional Court; this is the Swiss federal court; and, this is the Liechtenstein Supreme Court. So it’s all the German-speaking courts meeting with the two European courts. So this is another forum to just meet and discuss and see what are questions [00:46:00] of common concern, what are questions on which we can learn from each other. For example, last time we were discussing things on the COVID crisis and how to judge those restrictive measures that were put in place as violations of fundamental rights – or rather not, rather justifying, because of,of the need to protect public health.

So this was one of the subjects, for example. And everybody would contribute and explain the jurisprudence and the more restrictive or the more open line of that jurisprudence. So this is quite, quite helpful. Indeed, I think there has been a turning point.

But there is, of course other cases. We still had in the past that situation with the Polish Constitutional Court, which had taken a very radical position to European law, saying very radically, in various occasions, that the EU treaties would [00:47:00] violate the primacy of national constitutions.

So they have adopted quite a different understanding. For them, the national constitution is at the top of the hierarchy of norms and they have judged in that way. And we still have a procedure pending, which the Commission brought for a violation of the treaty by the Republic of Poland, which the new government has accepted.

This is, again, one of those changes that have come across. 

Katerina Linos: So before I go to Poland and also Hungary, let me ask a little more about the German dialogue. Because to me, as someone coming from Greece, it makes a huge difference financially. If the German Constitutional Court says, “There can be no ‘Transfer Union,’ none of this money goes anywhere,” says what the ECB did in the first financial crisis was ultra vires – that’s really different from a [00:48:00] big stimulus, NextGenerationEU, going through the German Constitutional Court and saying, “Sure, you want to give a couple hundred billion to Italy? We don’t see a problem there.”

So the money seems really high-stakes. As an EU lawyer, it seems that yes, the Polish and the Hungarian courts can say what they want, but the real check on European integration, since Solange, was the German Court. And then in a period of two years, between 2020 and 2022, the German Constitutional Court has this big change of heart. Voßkuhle steps down. And all of a sudden, everything is wonderful.

 What happened? This is exaggerating. But I don’t understand this change because the personnel was the same. The stakes continue to be really high. There was of course the COVID crisis. There was criticism in the German press, it seems. But something happened there and the German Constitutional [00:49:00] Court is stepping back a little.

Vice President von Danwitz: Well, just a little correction. I mean, what we, of course, should tell our audience is that the mandate of President Voßkuhle came to expiry. So there was no particular reason that he stepped down, but it was just that his mandate ended as foreseen by the statutes. And that was the same for Judge Huber, who was in charge of European law questions at that time.

So this aspect might have some impact, but I think there was another much more broader and maybe much more important aspect which is the following: If courts – and that might be the Supreme Administrative Court of Greece, or that might be the Supreme Administrative Court of Germany – if a national court feels that a solution is [00:50:00] just half of the answer, then we are the first to be happy to have in a way, a second chance to complete our answer.

And this is a matter on which I would insist for the so-called “Taricco saga” because M.A.S. and M.B., the second case that came from the Constitutional Court, was indeed not inviting us to say the opposite of what we had said, but just to, spell out aspects that have as well to be respected. So that was the second half of the answer, to give the full picture to the audience. That is why we had no problem whatsoever with the M.A.S. / M.B. part of that dialogue. Now for the German situation, I think [00:51:00] that the point is that it was not so much that the Gauweiler and the Weiss cases were, as you put it, really on monetary policy, on big figures, on the economic power of Germany. But then of course, you have to ask yourself the question – excuse me but I’m in a way well placed to ask the question – “What is in the interest of the country?” This is not the position that I am in. I have no mandate to evaluate what is in the interest of my home country. I have a mandate in this Court. 

But of course for a German Constitutional Court, as well as, for example, for the German president or for the German government, of course, this question is highly relevant. “What is in our interest? Is it in our [00:52:00] interest to have European integration continuing, helping out if Member States are in economic difficulty?” I’m now exaggerating and taking up the headlines of some journals, that the money spent in Italy is “well-paid German money” for the sake of preserving wealth and welfare in Germany, if that at all makes sense a European Union. But if you would accept that for the sake of the argument, then of course this is something that you have to reflect on.

And that was the discussion that we have seen after that saga that in particular in Germany, people were asking the question, “Is it really good that we are so reluctant on those transfers?” Or, “Wouldn’t it be in our self-interest to have those transfers?” And so that discussion came after the Weiss judgment and not before. [00:53:00] So before it was kind of, That should not happen . . . every country should have to live on its own.” And that’s full stop. But this is in a fully integrated European Union and in a market where, for example, the German industry can’t flourish without the Czech and the Polish industry and the other way around, this needs a second thought. And of course, that was not in our cases, but that was the background. 

So if you ask me the broader question, how I understand why things have gone so smoothly afterwards, I would point as well to that kind of evolution, that sometimes you have to be faced with an alternative in order to see more clearly what you should really be up for.

And I think Weiss was, in a way, a good moment to say, “Is that really what we want to go for?” [00:54:00] And that was an internal discussion in Germany that apparently the Constitutional Court judges in the following generation have picked up in a certain way. That is my guessing. Because I’m, of course, external to all that.

Katerina Linos: So it seems like the dialogue with the Germans is going well, the dialogue with the Italians is going well. In Poland, there were big elections that are changing the situation. And that leaves us in part with the Hungarians and that dialogue. How does it work when there are preliminary references, there are decisions, that are then ignored?

There’s an agreement on a very big penalty. I’m curious as to whether that 200 million was difficult to impose, easy to impose, when there’s now the European Commission that says, “Well, we will delay in paying out, you know, 20 billion to the Hungarians until some reforms are put in place.” How do you think of the relationship with Hungary in particular and rule of law conditionality more [00:55:00] broadly?

Vice President von Danwitz: I mean, there are – there is not only Hungary. I am happy if people understand that European integration and national interests are too closely intertwined to be taken in opposition. Because, quite frankly, if, as I put it, Czech industry is not working well, German industry has a problem.

For car industry, I could say, if BMW or Mercedes are in trouble, then of course the implantations in Hungary are in trouble. And this is the genius of European integration, that is, it’s more and more difficult to oppose two national interests which really fit into a battlefield, because, you know, if one is not doing well, the other will suffer half a year later. So that’s more of the reality in the economic terms. 

I’m not [00:56:00] fond of pointing at particular countries. In particular, the countries that have joined the European Union in 2004, of course, they joined the European Union with high expectations and with sometimes conflicting objectives. Of course, they wanted economic prosperity. They wanted that their economies would profit from a big boost.

On the same time, they wanted to enjoy some kind of freedom, in a sense of, “It’s now on us to decide on our fate.” Because before it was the big brother sitting in Moscow that was in a way looking at how people were behaving. And of course, the respect for European Union law can [00:57:00] at times conflict with that. And, of course, it is true that we always had instances in the founding countries where there were conflicts of that nature, but there was a lot of political energy put into limiting those points. For example – I bring this example because it’s a German example – the rule on the purity of German beer was in the 70s and early 80s by, of course, Bavarian politicians, considered to be a question of national identity. I mean, of course you could have made up a real anti-European movement with that argument and bring all Bavarian and German beer drinkers on your side. This is an invention that politicians did 30 years later, but [00:58:00] I’m just saying that could have happened.

But at that time, of course, everybody said, “This is a matter of punctual disagreement and we have to sort it out.” And in the end this court decided. By the way, and this is why I always state that example, under the German legislation, before this court ruled that it was incompatible with Union law, there was a second aspect to it.

Because if you would comply with the national rule, purity of beer, you could not have advertisement on that ground, because it was self-understanding that you would respect the law. So once the legal obligation fell, you could of course put up advertisement saying, “This beer respects the German purity rule.” And after a couple of years, German brewers found out that had sold much more [00:59:00] beer than under the old rule. This is just to say that things of national interest can be very difficult to assess. 

So, coming now back to what I think. Some countries have tried to find their own way in terms of judicial independence, in terms of rule of law, have taken up examples from different countries, have put them together in a very specific way, which corresponded to their political preferences. We as this Court have to balance out those aspects where we think that European law has to be strictly respected because it’s fundamental for European Union, for the functioning of the single market. For example, a Polish [01:00:00] company doing business in Germany can sue a German client for not having paid the bill and go to a German court and be treated like any German company suing the client, is quite obvious. But the same is, of course, obvious in Poland. So this is something that is about level playing fields, about non-discrimination on grounds of nationality So this is fundamental. And this Court has to be strict on that.

I should say, “Of course.” But on the same line, if you organize your judicial structure in that way, or another, is there only one solution? Is there only one model? Let’s be careful in imposing a certain system that is maybe not respected in Germany, or not respected in France, or not respected in Poland, or wherever.

So there I think we [01:01:00] always have to balance out. And some cases which appear to be strict have been adjudicated in a strict manner because we considered it to be a rather fundamental question. And others where we’re giving more leeway to national systems because we said, “Well, this can be done in one way or another. Both can be quite respective of European Union law.” 

And there is a last aspect that we have to take into account when assessing,and that we should avoid in principle, is the question of dual standards. This is something that I have not really seen appearing in the U.S. discussion, but this is appearing a lot in the European discussion: are you really treating EU foundation members on the same footing than new members? [01:02:00] And for us as a court in terms of institutional credibility, of course it’s fundamental that we do that. And that we make sure that this equality of countries in front of Union law and the treaty is respected and strictly respected. So this is always something that we have to check on. I’m not up to say that we have always found the best solution. But it is always that balancing exercise that we have to watch out for. 

Katerina Linos: So taking this question of judicial independence and Article 2, some would say, “If you give absolutely no independence to the judges, you have a flagrant violation of rule of law, then of course Article 2 is violated.”

And others would say, “Look at Article 2. It has all these vague terms. Why is it even justiciable? This is the Court trying to impose some homogeneity on the very different Member States.” How do you see this growing [01:03:00] jurisprudence that says, “We have a common European identity. At a very minimum, you need to respect these procedures” evolving? 

Vice President von Danwitz: We have very difficult situations in one or another case. So for example, if you have a country where corruption is a very serious problem, then of course you have a problem of the single market. The corruption cases we had can briefly be classified in that way. Of course, you have public procurement like in any country, and Company A receives the bid because there was a payment given to the political party of the minister, or to the minister himself, and so on and so forth. So this of course is something that is [01:04:00] of harm to the other companies involved that wanted to compete for that market. But more to that is, that the money used to finance this project – let’s say a motorway has to be built or some public installations, prisons, or you name it – they are financed with EU money.

So there again, you see how all is intertwined. And that is why if then this Court is asked about the respect of some legislation, then we try to see what the legal situation precisely is for that country. And for two countries, Romania and Bulgaria, there were specific rules on the monitoring mechanism, which are no more in place now. But at the [01:05:00] time of the judgments, respectively, at the time of the decisions that were given, those mechanisms were still in application. So then we have to check, and this is a standing case law, that they are in application so Union law applies, which means as well that all guarantees of the rule of law apply in favor of accused persons and in the full force of the law. 

So this is the, the whole story. We are out of the picture, of course, if the matter is not governed by Union law. But that can, at times, be a very tricky question to define, which is escaping sometimes from the perspective of critiques and commentators. I say this with full understanding, because those decisions are at times drafted in a very complicated [01:06:00] way. Even we judges have to read them several times to understand what is left to Member States as sovereign rights and what is European. You have different layers. And sometimes it’s really tricky and sometimes it’s difficult to precisely say what is the aspect that is triggering applicability of Union law.

We have to do that at times. Most of the times the cases are not so complex, but we have a lot of them. That’s why we really spend a lot of time on doing that. Because we really see that if we should be out, then it’s better to be out. [Laughter] 

Katerina Linos: Let me ask a final question about the evolution of EU law and perhaps future trends.

So, you’ve said some things are now settled. We have a lot of preliminary references from all the Member States. We have a volume of [01:07:00] secondary legislation for a lot of issues. We don’t need to do treaty interpretation. We do statutory interpretation. A lot of internal market debates are pretty technical. Things are obvious, I think. 

 As we’ve had new treaty amendments, we’ve had an expanding scope of cases, what do you see as some important recent trends and some big challenges for the Court in the coming years? 

Vice President von Danwitz: Well, of course, there are specific challenges to the Court. But in just one or two sentences, in, in terms of challenges for the Union, and in particular, with respect to what we have seen as outcome of the elections to the European Parliament a couple of weeks ago, is the following: I think citizens of the European Union want to see results. Maybe more than on a national level, where there are, I should say, reasons in [01:08:00] society why you accept that a system is not really efficient. But you are used to it, it’s traditional, it’s nice. For example, the German Länder, German federalism, has its efficiencies and has some folkloric aspect to it as well. Everybody is happy with it, and so you don’t question it. 

European Union institutions don’t have that soul that immediately appeals to people. So if they are inefficient, then people are critical. For good reasons. There’s nothing to quarrel about that. It’s so. So that is why I think one of the principal tasks for European Union institutions, all taken together, is to be efficient. To avoid political fights between Member States and the Council and the European Parliament.[01:09:00] 

There are areas where they finally came to agreements. And if you look closer, there was really a logic to those agreements, saying, “Well, each side has accepted parts from the other side.” And of course, there are arguments that you could make, into more right-wing or more left-wing, and they are fusioned, but that made sense.

In some other areas, they have not been able to. And in some areas, there is no real solution waiting for us. For example, migration. That is very complicated. Nobody really has the clue for an easy solution. But things have become so important that we have to, come up with something. We have to be effective.

Climate change. I mean, it’s not really a solution to have what we call a “century [01:10:00] flood” every second year. That is making a fool out of people. That was in my region, not far away from here, that four years ago we had 135 people dying just because of a flood. We are not somewhere in a country where no services are available. And so on and so forth, but it still happened.

So people are annoyed about that. And as much as European Union law can do something about it, in terms of environmental protection, the European Union has a lot of powers to legislate on it, so there we should do that. So this is the first half of my answer, which I think is very important. 

On the Court, well, of course we have to be effective as well. We have to deliver as well to the satisfaction in particular of the national judges that are asking the questions. This is, [01:11:00] our first addressee, so to speak. It’s not academia, it’s not a rather general debate, but it’s the judge that has asked the question, and we want that he receives, or she receives, an answer that she can work with. 

And that we have to do in a reasonable amount of time, which of course, has to be short because the national proceedings are stayed while we are working on it. And that, for example, starts with the translation questions. So our text – then you come to artificial intelligence – our translations have to be done in a way that they are really understandable. And a judgment that the judge who receives the answer to his questions or her questions will read three times before he or she understands what the meaning of the answer is, is not what we really should be satisfied with. We have to do better. 

And the question is, [01:12:00] can we really settle 900 cases every year satisfactorily? If – and I just try to tease you with that – if 50 or 100 of those questions concern DSA and DMA, I’m sure we will not be able to. Because the matter is too complicated. Already a hundred GDPR cases would, you know, bring us to the limits.

So that’s why we have to be very careful on how we move and we have to be well prepared to live up to those challenges. But they are there and all we can do is, to do serious work, very down to earth and very much in the way of answering the questions that we get.

Katerina Linos: Thank you so much. It’s just so wonderful to be here and we’re so lucky that you made all this time. It’s just such a pleasure. Thank you so, so much. 

Vice President von Danwitz: My pleasure.

Katerina Linos: It was such a pleasure to [01:13:00] be with Thomas von Danwitz in his office, because in addition to the many formal academic and practitioner awards we could see, we saw a cartoon, which we’ll put in the show notes.

A privacy association, as its Christmas card, celebrated Thomas von Danwitz for all he does to resist pressures from technology companies, and perhaps some American leaders, to freely allow the companies to do whatever they want with our data. If you want to hear more about Judge von Danwitz and his career, please look at the show notes for a link to a prior episode of Borderlines and for links to his many speeches and distinctions.

Mark Pollack: As always, we want to thank our producer, Toni Mendicino, and our sound engineer, Keith Hernandez, for their work on this episode and every episode. And of course, [01:14:00] to Thomas von Danwitz for talking to Katerina and for being such a wonderful host for us in Luxembourg. 

If you enjoyed this episode please subscribe to Borderlines. Please like us and leave a comment, and we’ll see you next time.