Alumni Notes & Newsmakers:

Uniting in Diversity

Koen Lenaerts LL.M. ’78 on leading the EU’s highest court

Alumni Notes HLBSP16

Credit: Oliver Minaire

President of the European Court of Justice Koen Lenaerts LL.M. ’78 keeps a photo engraving of Austin Hall in his home office in Leuven, Belgium. The image reminds him of the course he took from then HLS Professor Stephen Breyer ’64 (a 2L named John G. Roberts was also in the class), his LL.M. thesis with Duncan Kennedy, and hours spent perusing newspapers from around the world at Out of Town News in the Square. HLS is also now the alma mater of one of his six daughters.

Lenaerts is both a scholar and a jurist. Professor of European law at the University of Leuven, he has published dozens of articles across several languages. He is a “living encyclopedia of European law,” says Tamara Perišin, an HLS lecturer on law this year.

Although Lenaerts was elected president of the European Court of Justice in October, his judicial service goes back decades. As president, he coordinates judicial case management, presiding over the Grand Chamber, a 15-judge bench that takes on cases of the highest constitutional importance. He also directs the operation of the court, which works in 24 languages, and is its representative to the outside world. HLS Professor William Alford ’77, vice dean for the Graduate Program and International Legal Studies, has known Lenaerts since the Belgian professor first returned to HLS to teach a class in 1989. “He is extremely brilliant. He is very thoughtful. He is a very calm person. He is very wise,” said Alford, adding that the court is especially lucky to have someone of Lenaerts’ talents at a time when the EU is facing many challenges. During Lenaerts’ three-year term, the ECJ will likely hear arguments on issues ranging from terrorism to migration to environmental protection. In a Q&A, Lenaerts spoke about his time at HLS as well as the workings of the court.

What do you see as some of the challenges that will face the court during your presidency?

KL: An ongoing challenge in the years ahead will be to deliver case law which upholds the law, including the common law of Europe, and which is cogent and persuasive and wins hearts and minds.

The EU is both a common level of governance and a legal order. Europe now—as it has been in the past—is facing significant issues. Even if member states are dealing with extremely sensitive, highly political situations, they can, nevertheless, always count on the legal discourse to release some of the pressure, and finally at the legal level have the problem settled with a level of legitimacy and acceptance on the merits of the arguments.

When a crisis occurs, there is first a political response and then a judicial response. I should note that the ECJ does not have the political question doctrine. We must decide all the cases which have been validly brought to us. We have compulsory jurisdiction on sensitive issues covered by substantive rules of European law.

Your areas of expertise include antitrust. Could you say something about the deference granted to administrative agencies regarding antitrust in the EU compared toAmerica?

Well, that’s a rather complicated matter, because the procedures are very different in Europe and in the United States. In the U.S., antitrust matters are brought by the Department of Justice in federal courts. In Europe, the European Commission, as an administrative authority, fights infringements and imposes sanctions—the gravity of which can be immense. The judicial review of these sanctions is quite in-depth, given the heavy sanction.

On issues of technical assessment, European judicial review adopts a more deferential reasonableness test. Courts have particularly deferred to the Commission for decisions related to prospective assessments (e.g. merger decisions).

In crafting your opinions, do you consider how judicial officials around the world will interpret them?

Yes, I would say the members of our court do it almost naturally. You go a few hundred kilometers in whatever direction, and you see another language spoken and another tradition. The comparative law method is inherent in our way of functioning.

In the spirit of Justice Breyer [author of the book “The Court and the World”], our court strives to be aware of what’s going on in the world. For example, there is very often extensive analysis of U.S. case law for issues that have already arisen there. Sometimes we reason in parallel, and sometimes we explain why we can’t follow that precedent.

How has your time at HLS influenced your teaching and jurisprudence?

Europe is a project for consolidation of freedom, democracy, the rule of law, respect for fundamental rights, and mutual respect and equality between its people. Uniting in diversity means striking the proper balance between (a) one’s own identity, on the one hand, and (b) unity for all those policy matters which can only meaningfully be dealt with at the level of the European Union as a whole, rather than separately by each state. Oddly enough, I learned a great deal about this in Professor Tribe’s U.S. constitutional law class. He taught about a system of separate and divided powers to address ongoing issues across a diverse jurisdiction.

From Stephen Breyer, I learned the link between the work in the classroom and the work in the courtroom. What you do in the classroom is discuss cases, how the arguments were put to the judges, and evaluate the arguments based on hypothetical variations. We often do the same in the courtroom. We dialogue with the parties appearing in front of us in order to crystallize the point of the case to its inflection point, where the case becomes more clear.

Justice Breyer’s “The Court and the World” emphasized that the role of the judge is to decide cases, not to put forward big theories. Starting to develop big theories beyond what is needed to solve the case at hand—that’s beyond the mandate from a separation of powers perspective for the judges. As a court, we aim to come to the right outcome—the right solution in that particular case. I explain concepts like the American case or controversy requirement often to my colleagues at the court and to outside visitors.