Interview with Joxe Ramon Bengoetxea
Joxe Ramon Bengoetxea obtained his PhD in Law at the University of Edinburgh.
Professor of Law, University of the Basque Country. He coordinates the International Master from the University of the Basque Country where he teaches Legal Theory and Sociology and Jurisprudence. Formerly, he was Scientific Director of the Oñati Institute (2005-07), Legal Secretary (law clerk) at the Court of Justice of the European Communities (1993-1998 and 2002-2003), working directly for Judges Edward and Schiemann; director of the network ELAP-The Economics of Lifelong Learning and Deputy Minister for Employment, Labour and Social Security at the Basque Autonomous Government (1998-2001).
His publications include three books: 1) the book based on his Ph. D. thesis is ”The Legal Reasoning of the European Court of Justice”, Oxford University Press, 1993; 2) a textbook on Jurisprudence (Sociology of Law, Comparative Law, Legal Theory and Political Philosophy) in the Basque language, entitled “Zuzenbideaz. Teoria kritiko trinkoa” (1993); 3) The last book is entitled: “La Europa Peter Pan. El constitucionalismo europeo en la encrucijada”, published by IVAP in 2005.
He has published articles in law reviews, journals, collective editions and readers. These articles have mainly dealt with issues of legal reasoning and legal theory, EC law and institutions, regionalism in the EC, governance in the EU, comparative law, political philosophy (theory of sovereignty, nationalism and European integration).
First of all, we would like to thank you warmly for accepting this interview.
You are a Professor (Legal Theory, Sociology and Philosophy of Law), and you have also acted as a Legal Secretary (référendaire) at the European Court of Justice for certain periods of time. You have also authored a very interesting work, The Legal Reasoning of the European Court of Justice, Towards a European Jurisprudence .
You held also the position of Scientific Director of the Onati International Institute for the Sociology of Law; Universidad del País Vasco (Spain). Impressive professional career, congratulations!
1. In the beginning would you like to provide a shortdescription of your formative years in law, which is certainly very useful to “apprentices” in law.
Would you like you to point out major influences during your career (concerning also methodology)?
When I studied law in the 1980s there was real massification in Spanish Universities. Lectures were the basis of learning; there was little additional required reading and only occasionally would we be required to read cases. I took the habit of reading extra materials in the subjects that I liked: reading cases, and monographs. If I felt confident, I would go to speak to the professors.
2. Could you please describe your experiences acting as an référendaire at the European Court of Justice? What models do you have among Judges and AGs at the ECJ?
This was a great experience. You have to work on different types of cases; try to do the necessary research to understand what the case was about, read the relevant cases and go through the files and pleadings several times to make sure all the points were taken. Drafting towards a judgment that will receive consensus in difficult cases is an exercise in modesty: you cannot simply try to impose the views that you think are best, you have to negotiate your way and convince with good arguments while being coherent with the previous cases, and the solution has to be practicable and ideally acceptable to the parties as well. My model judge was David Edward, but I also thought very highly of Judge Mancini and Leif Sevon and Advocate General Leger. Later on I very much appreciated judge Rosas.
3. From your point of view, what are the most important recent developments concerning the EU legal order?
Obviously the accession to the ECHR will be the next big thing, at least simbolically. The citizenship cases would be the other big development, and for the third, I would stress the Kadi judgment. These cases reflect my interests more than a neutral presentation of the law as a whole.
4. A more general question: Are there any threats tothe unity and coherence of the legal system of the European Union? If so, what means should be used in order to overcome them?
The economic and financial crisis is the greatest threat. Areas like state aids and restriction of competition, restrictions to trade and protectionist temptations are one threat. The second one is the devastating effect of the culture of cuts and austerity on many Europeans. The sustainability of systems of social welfare and the support of EU law is crucial. The third is the opt out of the UK from some policies.
5. From your perspective, what would be the mainchallenges for the current European Court of Justice?
Sincerity in its reasoning and justifications. Clarity also, and resource management to enhance quality.
6. On the other hand, did the Court of First Instancehave (had) a self-restraint attitude towards the European Court of Justice (from the point of view of a potential appeal brought before the latter)? And if so, could you please comment on the underlying reasons for that? Or to put in other words: what would be the effects (concerning the reasoning employed the EU courts) of a potential appeal (at Court of Justice of a judgment of the General Court) concerning the reasoning of those courts (the “lower” court and the “higher” court)?
Appeals are essential in going to the heart of the reasoning. A thorough practice by the Court of Justice in controlling the quality of the reasoning of the General Court is the best way of working towards shared standards of reasoning.
7. Could you please comment on the goals of thecompetition among European Courts – the European Court of Justice and the European Court of Human Rights? What would be the usefulness of an adhesion to the European Convention on Human Rights as far as the European Union has already adopted the Charter of Fundamental Rights?
I already said something about that, but the key will be to bring the whole system of EU law under the same type of Fundamental Rights control as befalls on the Contracting States. No possibility for double standards.
8. Coming to legal reasoning in judgments delivered by EU courts, we would like to ask you to assess the stages of logic employed in more recent judgments compared to old judgments (of the 60s and 70s)? And also compared to (other) supranational courts, like ECtHR?
I think the European Court of Justice has comparable standards to the ECtHR, and although there are occasionally judgments that have poor or even defective reasoning, on the whole I do not agree with the statement that things are not as good as they used to be before.
9. What is your opinion concerning the “construction”of the principles of the ECJ?
This is an area where the Court could do with a little transparency, sincerity and theory. It lacks a solid background theory on principles, but it is working on that, I believe. The academic community should be more critical towards the Court always, but also in the field of principles.
10. What is the use of national law in the legal reasoningof ECJ? And moreover which is the influence/the role played by comparative law (from a methodological point of view) in the judgment of ECJ?
National laws are the bread and butter of the Members that make up the Court. Comparative law is one of the palimpsests of the judgments, it is not recognised but it is always in the deliberation laboratory.
11. What about the public-private division in EU law?Is it still relevant (as it was illo tempore)? We would like you to comment briefly on that development.
The private/public distinction is only a pre-hermeneutic understanding of law. When you analyse the intricacies of the case, you then not to think in those terms and go straight to the issues.
12. On the other hand, which role does play thepurposive interpretation (generally) in law and more particular at the ECJ? Are the any „malaises” concerning this interpretation in the judgments delivered by the ECJ?
At the ECJ, the purposive interpretation seems to hold a privileged place compared to other means of interpretation (systematic, literal, historical). Is this perception grounded? And also, which might be the justification that this kind of interpretation leads finally to a new law?
When one reads the Treaties from beginning to end, one realises that they are about aims, objectives, telos and principles. There is a delicate balance to find between the objectives of integration and the principle of legality looking to the past of relationships.
13. Which might be the objective pursued by the ECJin a case when it answers a preliminary reference relying heavily on facts? Is it still possible the division of functions between courts (the national court and the ECJ) in the system of Article 267 TFEU? And also is there still a division between law and facts?
On the other hand, are there any dangers in relying on national law in judgment of the Court (not concerning the relevant law, but in the rational building-up of a judgment)?
The Court generally manages to respect the distinction and not to decide on facts. Qualification is close to interpretation, and it is important to work on a ratio decidendi that sticks to the facts of a case as universally described.
14. To sum up the above questions: Would there be anyrisks concerning the activism of the European Court of Justice? Is the preliminary reference a strictly legal element or is it a mechanism significantly influenced by other factors – political, economic and so forth?
The preliminary reference is an essential instrument in the success and acceptability of the Court. It is a genuine system of cooperation. The Court replies to real cases. The activism debate is happily dated. More sophisticated approaches to justification are now called for by most scholars, and also by judges. Activism is often a term used by more politically motivated reactions to judgments the outcomes of which are disliked
15. And a final question: Which advice/recommendationwould you give to young researchers in (EU) law?
Never to forget the sociolegal and theoretical aspects of the cases they are dealing with. Never to engage in sophisticated theories without knowledge of the cases and the facts of the cases.
Thank you very much.
Interviul face parte din lucrarea ”Interviewing European Union. Wilhelm Meister in EU law”, Coordonatori: Daniel Mihail Sandru și Constantin Mihai Banu, Editura Universitara, 2013 (https://www.editurauniversitara.ro/stiinte_juridice_si_administrative-10/interviewing-european-union-wilhelm-meister-in-eu-law.html)