The following is a translation of an interview written by Gergely Dobozi, originally published in the Hungarian weekly Mandiner, the printed version of the online magazine. Date of publishing: 03.08.2022.
It is unfortunate that the European Commission is becoming increasingly politicized, says Christopher Vajda, a former judge of the Court of Justice of the European Union. According to him, Hungary could propose amendments to the Treaties if it considers the message of an ‘ever closer Union among the peoples of Europe’ to be worrisome.
In an earlier Mandiner interview you emphasised the need for meaningful conversation between the European Court of Justice and the national courts. As a former UK judge, what do you think, has the conversation between Brexiter UK and the European Court of Justice been derailed?
I think Brexit was a culmination of dissatisfaction with various aspects of being a member of the European Union. That was felt across many sections of the British society. And one aspect of the dissatisfaction was that more and more important laws which affected the daily lives of the people of the United Kingdom were made not by the Parliament in Westminster, but by the European legislature. However,
I can say that having been a member of the European Court of Justice for eight years, participating in the judicial dialogue between the EU court and the British courts, that the dialogue was excellent.
We met quite frequently; I don’t think that on the professional level there was any difficult relationship between EU and British judges.
The ECJ might have jurisdiction over a post-brexit UK, which is a crucial political dilemma in London. London intends to remove ECJ’s oversight from the Northern Ireland Protocol. What outcome do you predict? Can the UK fully be independent from EU?
We need to separate two issues. First of all, the form of Brexit the UK government has chosen is a form of Brexit that means that the only relationship between the parties is under a trade cooperation agreement regarding goods, tariffs and services. All those provisions are not overseen by the European court if there’s a dispute. This relationship is governed by international law, meaning that if there’s a dispute, it goes before an independent arbitrator where the EU appoints one member, the UK appoints another and those two appoint a third one. From the point of view of the sovereignty of the United Kingdom this means that the European court has no say at all in that.
Now there comes Northern Ireland which is a very particular situation…
Indeed, because as we all know unfortunately it has suffered for over 40 years from terrorist activity. And the United Kingdom and Ireland managed to conclude the Good Friday Agreement in 1998 which brought peace to the island of Ireland. Thanks to that, there’s no hard border between Northern Ireland and Ireland. When the United Kingdom was a member of the European Union, it was no problem at all. Then Brexit came along. There was political consensus both between the UK and the EU to maintain the Good Friday Agreement—meaning that there was not going to be any hard border between Ireland and Northern Ireland.
However, there was a major change—the UK was no longer part of the internal market. This means that you have a border. How can the parties reconcile that?
There were various solutions put forward and all of them were difficult for the British government to accept. The solution that the current government accepted was that there’s no hard border but the result of this is that effectively Northern Ireland would still remain in the EU internal market for certain purposes. For those purposes, Northern Ireland would be applying EU law, on which the European Court of Justice has the final word. There is therefore provision for references from the NI Courts to the European Court of Justice. It’s a completely unique situation: Northern Ireland is part of the United Kingdom out of the EU, nonetheless it is going to apply certain EU laws. Now the government has recently published a bill in Parliament where, amongst other things, it wants to remove the jurisdiction of the European court. It is a bill which is not without problems, because a number of people said that its provisions unilaterally change the effect of the previously signed Northern Ireland Protocol which constitutes part of international law. So, there’s a number of people saying that the government is going to breach international law.
What is your opinion?
I would not comment on who is right or who is wrong on this issue. It will be a matter for a court or tribunal to decide.
Speaking of tribunals declaring what is right and what is wrong: some say that the European Court of Justice is starting to act like a Constitutional Court of the European Union. There are several judgments that concern human rights. For example, a couple of months ago the ECJ in a case titled ‘Pancharevo’ ruled that in the outcomes, Bulgaria, where same-sex marriage and adoption are not allowed, should recognise these progressive developments because Spain already has. The judgement is based on the principle of free movement. Would you care to comment on it?
First of all, the ECJ is bound to apply human rights issues under the EU Charter of Fundamental Rights as all EU legislation must comply with the Charter. The Charter is a constitutional text of the same hierarchy as the EU Treaties and so
by applying the Charter, the ECJ is ensuring that the EU complies with its own constitutional texts.
But the Charter only extends to a situation where EU law is engaged. It does not extend to matters that fall outside EU law.
Do I know correctly that you judged a similar case?
Indeed. I sat on a similar case titled ‘Coman case’ which concerned Romania. That was also a case concerning free movement where Romania has also not recognised same-sex marriage. The question in that case was how to interpret the word ‘spouse’ in an EU regulation which dated from 2004. You could say it either meant opposite sex or same sex. The regulation does not say that a spouse has to be from the opposite sex. There are two possible views for that: does it mean opposite sex, or does it mean any sex? What the European Court said in Coman was that it means any sex, not just opposite sex. In the Coman case we made it clear that this was only concerned with the question of free movement of this Romanian man and his same-sex husband. It was not challenging in any way the Romanian prohibition on same-sex marriage. Now back to the Pancharevo case—as you said it also concerned free movement. This does not mean that the European Court of Justice requires Bulgaria to allow same-sex marriage in a non- free movement case. What every state has to accept, however, is how the European Court interprets EU law on free movement.
I wouldn’t be surprised if in Bulgaria some would say that this is an act of judicial activism or overreach…
Everyone is entitled to their own view. However, what the Court of Justice had to do was to decide what the word really meant. Of course, they could’ve ruled otherwise declaring that interpretation is based on opposite sex, but they didn’t. I think the court is entitled to say that when the word ‘spouse’ is used in recent legislation without the reference to the opposite sex, it is not limited to a couple being persons from the opposite sex. And that is simply for the sake of free movement which is a fundamental pillar for the European Union. Thus, it’s a solution that a court is perfectly able to come to. Of course, it is important for the court to explain why it reaches that conclusion. And this explanation cannot be limited to saying ‘just because we like same-sex marriage’.
‘Ever closer union among the peoples of Europe.’ It’s not just a preamble, it is written into the normative text of the Treaty about the European Union. Thus, the judges in the European Court could look at it as a signal, an obligation that the institutions must go into deeper integration.
I understand the point and in fact prior to the Brexit referendum, there were a number of people in the United Kingdom who made the same point. I can only say from my experience that I was not aware that the reference to an ‘ever closer union’ was ever the basis for a judgment in which I participated. To my mind,
it is more of a political declaration than a legal aid to interpretation.
I see your point, but can’t the judges say, OK, we will not refer to it, but the spirit of the clause may be enshrined in the judgements? I mean that the win rate of an ‘ever political European Commission’ before the Court is considerably high…
First of all, there’s no doubt that the EU has had a policy of closer integration in a number of areas over the years. And it’s true that the European Commission is getting more political than its predecessors. In my view, this is unfortunate, given that this body is meant to be independent—the ‘Guardian of the Treaties’. What you are saying is that there is an element of judicial cheating: the judges may not mention it, however, it is in the back of their minds, thus affecting their thinking. That’s a very difficult question for me, because personally, it did not affect my way of thinking at all. Still, I can understand the argument if someone says that there’s a risk that this principle might push the court in one direction. So,
if this is a concern for say a country like Hungary, then Hungary could seek the way to remove that from the provisions of the Treaties on the next occasion when the Treaties come up for revision.
Its success would depend on whether it can get a sufficient number of other countries to support this. I suspect that there will be reluctance by other countries to do this as this provision has been in the Treaties from the beginning.
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