Interview with Jan M. Passer on the workings of the Court of Justice of the European Union

What does a Joint Court judge do?

The headlines in the media are about cases brought by the European Commission against member states for breaches of EU law, but this is only on the sidelines of our agenda. Every year, we have between 30 and 60 direct actions, most of which are cases where the Commission is against states. The first and final questions we work on are preliminary questions. Between 550 and 600 of these come across our table every year.

what exactly is it?

A question about the interpretation of European law by a national court. This is because the vast majority is applied at the level of the Member States – by the executive and the courts – and the results of its application must necessarily be the same everywhere. If you are sued in a German court, the German court should not interpret your European law differently from the Czech court, and the Czech court should not interpret your European law differently from the Spanish court. A preliminary question, the possibility (and sometimes even the obligation) to ask the Court of Justice of the European Union to interpret European regulations, helps to ensure that European law is the same throughout the EU.

Give examples of how the preliminary questions have had an impact in practice.

Soon after accession in 2004, the complete EU legislation had not yet been translated into all the languages ​​of the new member states, so the question arose whether you were obliged to comply with laws that did not exist in your native language. The Estonian Supreme Court dealt with this issue in a decided case and concluded without a doubt that European law must be applied, even if there was no official version in Estonia. The Polish Administrative Court dealt with this issue in a similar context and equally clearly concluded that Polish citizens were obliged to comply with European law only if there was a Polish version of it.

By the way, the unification happened thanks to the Czech courts. When the same issue arose in the Ostrava Regional Court, he correctly asked the court a preliminary question. He replied that if the regulation is not translated, no obligations can be imposed on its basis. The “Czech” preliminary question had a precedent effect on a number of other countries.

What interesting problem did you solve last time in the Czech Republic?

Take the case of Vysočina Wind. It concerns the obligation to pay a contribution for the management of electrical waste, in particular old solar panels. This obligation is imposed by Czech law on users of certain panels. The company Vysočina Wind, which had to pay this fee, was convinced that Czech law was in conflict with the European directive. She defended herself in the Czech courts, the case reached the Supreme Court and was referred to our Court with preliminary questions. His interpretation of the directive was that it was the producers, not the users of solar panels, who were obliged to pay the fee. This is one of those seemingly technical but very important legal issues that can have a significant impact on the wallets of EU citizens.

Twenty years after joining the EU, how do you think the Czech Republic fares overall as a client of the Court of Justice of the European Union?

As for direct actions for violations of EU law, he is not a very common client. It is not a country that does not fulfill its obligations for a long time and is sued by the Commission or other countries like on a treadmill. Our average is very good. Since 2004, the total number of actions against the Czech Republic per year is very low, sometimes even zero. In general, in the twenty years since accession, the number of cases in which the Czech Republic has been sued in the courts is several dozen. Even for preliminary questions, the Czech courts are not among the most frequently visited courts. But when they do make requests, it is usually about important matters and well-crafted submissions.

What is the biggest Czech case in Luxembourg?

The beauty of European law is that the biggest Czech cases do not necessarily come from the Czech Republic. For example, three years ago we decided on a preliminary question in France concerning the liability of the state for individuals for exceeding limits on air pollution. The CJEU concluded that the obligation of the state to pay damages to individuals for non-compliance with limits was not in accordance with European law per se. Given that ultra vires is a problem faced by many countries, the French origin of the preliminary question is not important. The decision is of great importance for all countries. If I were to think about one matter that originated in the Czech Republic and is of great importance for the Czech Republic, the most important one would probably be the dispute over the Turuf mine.

The mine is pumping water from northern Bohemia, according to the Czech side, and the dispute over whether mining should continue in a Polish mine near the border ended not with a ruling but with an agreement between the Polish and Czech governments. Mining continues, and Poland has pledged to take a number of measures to protect groundwater.

Let’s imagine that there is no EU or EUJE and the Czech Republic negotiates bilaterally with Poland. The presence of the Union and the ongoing proceedings certainly greatly facilitated the Polish side to reach an agreement. At the same time, I will not judge the content of the agreement, it is the result of political negotiations, some people agree and some do not.

How do you evaluate the Czech Republic’s vote against refugee quotas in the EU Court of Justice in 2015, which the Czech Republic lost?

The EU is a framework for setting the rules for the functioning of the union. It depends largely on us whether we can come up with constructive counter-proposals and find enough allies if we disagree with the solutions proposed by others. Here the Czech Republic did not succeed and failed politically. This is a very special case, by the way, and as far as I know, during its membership of the EU the Czech Republic was defeated less often in votes than, for example, Germany. The vote itself and the procedure were fine. Legally, this is not an interesting case.

What is your verdict on migration agreements? For example, can you order countries to pay a certain amount to help countries facing migration waves?

We will be able to interpret European law in the context of preliminary questions raised by national courts. If the Czech Republic does not fulfil its obligations under European law, for example by not accepting any refugees and refusing to participate in solidarity in any other way, the EU Court can, at the request of the Commission or other states, declare that the Czech Republic has violated its obligations and impose a fine on it until it fulfils its obligations. This fine, by the way, could represent a very high amount. On the one hand, the EU Court cannot order a country such as the Czech Republic to accept a certain number of asylum seekers. On the other hand, it can exert strong indirect pressure to comply with its European commitments.

Is this a “Luxembourg order”?

I am a bit skeptical about the “Brussels Directive”, because the Czech Republic participated in the negotiation and adoption of the rules that were subsequently binding on it. In the case of the “Luxembourg dictation”, this is even more true, because the court itself cannot intervene at will. I once said that a judge opens a newspaper in the morning and after reading a series of articles says to himself, this is a beautiful thing, I am willing to judge it as such. But he has to wait until life brings him such a situation. That is, when someone decides to sue her. Luxembourg can only “dictate” when someone (the European Commission or another member state) asks it to do so. It also makes decisions based on the rules adopted by the defendant country.

The CJEU has a reputation as an activist court. In other words, it interprets EU law more broadly at the expense of the competences of the member states. What is your opinion?

In fact, a series of major judgments of the European Court of Justice have essentially paved the way for European integration. But it can be said that otherwise he would have resigned himself to the responsibility of reasonably interpreting and applying the law.

For example, in the Van Gend en Loos case in the early 1960s, a Dutch carrier imposed tariffs on goods coming from West Germany. He argued that this violated European law, according to which countries could not impose new tariffs on goods coming from other member states. The carrier took it to court, and a not insignificant portion of the member states at the time said: “No, no, no, European regulations should not give rights to individuals, and the carrier cannot object that this obligation conflicts with European law.” The CJEU replied that if they were right, then most of the rights would become completely meaningless and empty. This was a landmark decision at the time, and for me personally it is still the most important decision of the CJEU.

Of course, you can say that the Court has made positive decisions. But you will also find judgments in which the CJEU has laid down the limits of its competence because the Member States simply did not agree that a certain issue should be resolved at the European level.

What has joining the EU for twenty years brought to the entire Czech judicial system and even the European judicial system?

The European dimension is reflected in the possibility of dialogue with the European Court of Justice and partly through dialogue with other courts. As part of the European judicial system, the Czech courts must fulfil certain basic guarantees of independence and impartiality. The level of rule of law guarantees in the Czech Republic is not problematic, but an insurance policy in the form of a European anchor is important.

I would like to emphasize that the guarantee of judicial independence and impartiality is not about protecting courts or judges, but about ensuring that the person on trial gets a fair trial. When you as a Czech citizen are tried in Germany, Portugal or other countries, they will have a judiciary organized according to the local constitutional tradition. But you must guarantee that you will assert your European rights in an impartial and independent court.

How many Czech cases have you handled since you started your post in Luxembourg?

At the EU Court of Justice, I cannot be a judge-rapporteur, i.e. a decision-maker on cases coming from my state. But I can be a member of the Senate that decides on the matter – three to five members by default, fifteen members on important matters. As a member of the Senate, I participated in decision-making on a lot of things coming from the Czech Republic, but I admit that I have not counted them. My guess would be a higher unit or a lower ten.