1. Introduction
President Koen Lenaerts, the highest judicial authority in the European Union, is also widely recognised as a ‘leading scholar’Footnote 1 in European law and described by some as ‘perhaps the most prominent EU lawyer today’.Footnote 2 He has been ‘rightly respected as one of the truly great scholars of European law’.Footnote 3 Over the last decade, the Court of Justice of the European Union (CJEU) has been called by some scholars the ‘Lenaerts Court’.Footnote 4
Yet, despite his prominent position in the European legal sphere and the widespread recognition of his undisputed expertise in EU law – or perhaps precisely because of it – Lenaerts’ persona as a jurist, together with his vision of European Union law and the court, have not been systematically examined in the legal or social sciences literature, much like most of his recent predecessors, who are known by personal anecdotes,Footnote 5 or the occasional article reflecting on their legacy.Footnote 6
This article seeks to fill this gap by examining both Lenaerts’ description of the institution to which he belongs and his influence upon it. Three key reasons justify the relevance of this study: the growing literature on judicial portraits of CJEU judges and Advocates General, the institutional significance of the office of the President of the Court, and the jurisprudential weight that the presidency can carry.
First, it is now widely acknowledged that the Court of Justice is less and less ‘faceless’.Footnote 7 It therefore matters not only who the judges are, but also how they conceive EU law and the role of the court. Because of their influence in the development of EU law, historians, and social scientists have long examined the career paths and ‘legal philosophies’ of the court’s early Presidents, such as Massimo Pilotti (first President of the Court of the European Coal and Steel Community from 1952 to 1958) and Robert Lecourt (President of the ECJ from 1967 to 1976).Footnote 8 In the same vein, recent legal scholarship focusing on the biographies of judges and Advocates General has tended to examine CJEU figures active prior to the year 2000,Footnote 9 leaving the post-2000 period comparatively underexplored.
Second, the role of the President of the Court is of pivotal importance and has assumed an increasingly prominent place within the court’s institutional dynamics.Footnote 10 The President holds significant prerogatives, which have been gradually strengthened over time. At the institutional level, the entry into force of the Lisbon Treaty in 2010 granted the President the right to initiate changes regarding both the organization and composition of the panel of experts responsible for providing an opinion on the suitability of candidates for the positions of judge and Advocate General of the CJEU under Article 255 of the Treaty on the Functioning of the European Union (TFEU). These powers enable the President to shape the institution itself and to indirectly participate to the recruitment of its members. Among the various initiative powers conferred on the Court of Justice (Articles 255, 257, 281 TFEU), the power to propose amendments to the CJEU’s Statute has proven particularly significant. This was notably used in the 2015 reform, which doubled the number of judges at the General Court, apparently under the influence of President Vasilios Skouris (2003–2015).Footnote 11
Third, on the jurisprudential level, the President’s influence lies, among other things, on the prerogative to appoint the reporting judge in each case, an authority that enables him to ‘wield substantive power’.Footnote 12 Moreover, the fact that the President – together with the Vice-President – is one of the only two members who sit in all cases before the Grand ChamberFootnote 13 confers upon him (or, hopefully in the future, her) a special influence in shaping the court’s jurisprudential evolution. A recent comparative study on the presidents of the European courts identifies five categories of presidential powers: administrative (including case assignment), jurisprudential, ambassadorial, judicial career-related, and financial. It finds that the President of the CJEU holds ‘extensive’ powers in the first three categories, but only minimal powers in the last two. The authors therefore conclude that the President of the CJEU ranks among the most powerful court presidents in Europe.Footnote 14
This paper seeks to draw what I call a legal portrait of President Lenaerts, which is an attempt to critically examine both his description of the institution to which he belongs, and his influence upon it. It is based on a comprehensive study of his public and formalised statements (published or on podcasts) since the year of his election in 2015. These include academic writings, public speeches, and interviews (whether given to the media or to EU scholars), gathered from online recordings, law journals, institutional websites, and specialised European law blogs such as EULawLive, Blogdroiteuropeen, or the Borderlines podcast series (UC Berkeley Law) or on institutional websites like that of the Italian Constitutional Court. These materials also encompass official speeches delivered at institutional meetings, ceremonies, or commemorations, as well as his contributions to honorary award events. To ensure completeness, earlier writings by Lenaerts that address the court, its interpretative methods, or its legitimacy have also been incorporated, even if published before 2015.
Based on these research materials, Part II of this article outlines the methodological approach adopted and the challenges it entails. Part III examines the contextual elements of Lenaerts’ personality, career path, and the challenged currently facing the court. Part IV demonstrates that, although Lenaerts remains publicly reserved regarding the court’s internal organization, he nonetheless plays an influential role in its functioning and shaping its reforms. Part V shows that, while Lenaerts publicly defends the idea of law as apolitical, he nonetheless advances a normative vision of what EU law ought to be and asserts that its current form serves the interests of European citizens.
The article concludes that Lenaerts is an influential President who skillfully leverages his scholarly authority to defend the court and its jurisprudence. Yet, it also reveals that a significant part of his influence lies in the subtle gaps between his professed positions and his concrete actions, as well as between his dual role as scholar and as President – two interstices where institutional power is exercised less visibly, but no less effectively.
2. Methodological challenges: hermeneutic and embodied approaches to EU Law
This section outlines the methodological foundations of the study and the specific difficulties that arise when attempting to draw a legal portrait of a sitting President of the CJEU. Two central challenges stand out: the sensitivities involved in analysing a jurist who currently occupies the Union’s highest judicial office and the extensive and prolific nature of President Lenaerts’ scholarly and public interventions.
Lenaerts is an exceptionally prolific figure academicallyFootnote 15 and, as already said, is ‘perhaps the most prominent EU lawyer today’.Footnote 16 He is academically active across multiple institutions, he also serves on various courts and frequently appears in the press. Since 2015, he has co-authored no less than six books (including translated editions), published roughly seventy articles or speeches in legal journals and edited books (including translated and co-written articles). In total, around 20 publicly available documents published between 2015 and 2025 have been catalogued, alongside his academic publications. His public profile is further amplified by interviews, podcasts, and speeches, all of which require careful contextualisation.
To address these challenges, this article adopts two complementary methodological perspectives. The first is a hermeneutic approach, which treats Lenaerts’ texts as autonomous carriers of meaning, open to interpretations that may extend beyond his original intent. The second is an embodied approach, which situates his writings and interventions within his personal trajectory and institutional role, acknowledging the human dimension of law as practiced and performed by legal actors. Together, these approaches allow for a more nuanced assessment of Lenaerts’ legal persona, attentive both to discourse and to context.
The first methodological approach grounded in legal hermeneutics relies on Paul Ricoeur who has observed that a text acquires autonomy once it is written.Footnote 17 Indeed, the speaker of the discourse is distinct from the ‘writer’ as Gérard Genette also emphasises.Footnote 18 Similarly, Duncan Kennedy notes that while speech can have a strategic dimension, this ‘is never fully controlled by the speaker’ (the speaker is in some sense ‘spoken’ by his or her language), so that speech ‘exceeds’ the speaker, propagating meanings independently of ‘original intent’.Footnote 19 Following this hermeneutic approach, this paper interprets Lenaerts’ writings as text that may convey meanings beyond their intended purpose, drawing a distinction between what President Lenaerts professes to do and what, in practice, he accomplishes.
Within this hermeneutic enterprise, a form of triangular intersubjectivityFootnote 20 emerges between the institution, the individual, and the observer. It is therefore methodologically sound to acknowledge my own positionality in this study. I first met Koen Lenaerts in 2006, when he was a judge at the Court of Justice of the European Communities, during my two-month internship in his chambers as part of my doctoral research on the role of the Advocate General at the Court of Justice. At that time, I observed his work and discussed aspects of my research with him. I met him again in 2025 after I delivered a talk for the Research and Documentation Directorate of the Court and we discussed recent reforms and the evolving case law at the CJEU. Across these encounters – first as a young intern, then as a more senior scholar – Lenaerts appeared to me as a figure marked by enthusiasm, authority, youthful spirit, erudition, and remarkable skills of synthesis.
The second methodological approach rests on embodied approaches to the law, ieFootnote 21 approaches that place the human factor at the centre of EU Law studies.Footnote 22 Drawing on socio-legal studiesFootnote 23 and legal history,Footnote 24 this approach starts from the premise that law comes into being through the actions of legal professionals, each acting with their own rationality and representations.Footnote 25 A jurist’s professional trajectory thus helps contextualise their relationship with the institution and their vision of it. Therefore, the study does not rely on personal archives or interviews with Lenaerts or his colleagues at the court or elsewhere; rather, it examines accessible and well-known sources. It seeks to analyse not only what is said, but also what is left unsaid, the silences and interstices of the texts, in order to assess the gap, if any, between President Lenaerts professed positions and his concrete actions concerning both the CJEU and EU law.
By combining hermeneutic and embodied approaches, this study is able to move beyond surface readings of Lenaerts’ prolific output and situate his discourse within the broader institutional and personal contexts in which it operates. This dual lens makes it possible to capture both the explicit claims he advances and the silences or tensions that mark his public persona. In doing so, the methodology provides a critical framework for assessing the gap between Lenaerts’ professed positions and his practical influence on the CJEU and his EU law more broadly.
3. An affable legal mind in EU law: more than 30 years of judicial service at the CJEU
A. An academic background in comparative and EU law
Given his academic and professional background, Koen Lenaerts can be said to have developed intellectually through Community law and European Union law. As one observer put it, ‘European Union law runs through President Koen Lenaerts’ veins’.Footnote 26 He exemplifies the contemporary Euro-Lawyer who has helped ‘broker Europe’.Footnote 27 His professional trajectory has evolved largely within, and thanks, to the CJEU itself. The significant milestones in his career, listed on the CJEU’s website, have also been detailed by Lenaerts in interviews.Footnote 28
According to his official biography on the Curia website, as well as his own accounts, Lenaerts was born in 1954 in Mortsel, in the Flemish region of Belgium. He first pursued his undergraduate studies at the University of Namur in French-speaking Belgium, before obtaining a law degree in 1977 from the Catholic University of Leuven. He then pursued further graduate studies at Harvard University, earning a Master of Laws (LL.M.) degree in 1978 and a Master in Public Administration (M.P.A.) from the Kennedy School of Government in 1979. At Harvard, he studied American constitutional law with Professor Laurence Tribe, administrative law with Professor Steven Breyer and wrote his Master thesis under the guidance of Professor Duncan Kennedy on the evolution of the Dormant Commerce clause jurisprudence by the US Supreme Court.
Back at the University of Leuven, he attended courses given by Josse J. Mertens de Wilmar, who was the President of the Court of Justice of the European Communities (CJEC) from 1982 to 1984, and Walter Van Gerven, who later became Advocate General at the CJEC in 1990. They both mentored him in European Community law. He obtained his PhD in Law in 1982 with a thesis comparing the American federal system with the European Economic Communities. In his thesis, he developed a comparative analysis, in functional terms, between the American federal system and European Economic Communities through an analysis of the US jurisprudence of the Dormant Commerce Clause and the CJEC internal market jurisprudence.
B. An EU Law scholar and practitioner working almost exclusively at the CJEU
It was at the University of Leuven that he began his professional career in 1979 as an assistant and later became a professor of European law in 1983. During his academic career, he also taught at the College of Europe in Bruges, Belgium, from 1984 to 1989, as well as at Harvard Law School as a visiting professor in 1989. He is also involved in numerous editorial boards of legal journals, and has received multiple honorary distinctions awarded by different universities.Footnote 29
Alongside his academic work, Lenaerts pursued a career as a practitioner of EU law, almost exclusively at the CJEU (formerly the Court of Justice of the European Communities). From 1984 to 1985, he served as a référendaire (legal clerk) of the French judge René Joliet, an experience he later described as fundamental to learning the internal logic and drafting style of judgments. He then practiced at the Brussels Bar from 1986 to 1989. On 25 September 1989, the very day the newly established Court of First Instance (CFI) was inaugurated, he was appointed as one of its judges – being at the time the youngest to hold such a position. He served there for 14 years. On 7 October 2003, he was appointed judge at the Court of Justice. He subsequently held the position of President of Chamber for two consecutive terms, from 9 October 2006, to 8 October 2012, and then Vice-President of the Court of Justice on 9 October 2012. He was ‘designated’Footnote 30 or ‘elected’Footnote 31 President of the Court of Justice on 8 October 2015, and his mandate was renewed in 2018 and 2021.Footnote 32 During his visit to Poitiers, he was presented as having followed an ‘impeccable path’, being a professor at the University of Leuven and a lawyer, ‘having climbed all the steps at the CJEU before becoming its president […]’.Footnote 33 In 2005, King Albert II conferred on him hereditary nobility and the personal title of baron, and in 2010 he was made an Honorary Master of the Bench of the Inner Temple in London.Footnote 34
C. A skilled figure operating under political pressure
In addition to his expertise in EU law and comparative public law, Lenaerts is recognized for two other qualities. First, his linguistic ability. He is indeed a polyglot who readily speaks to most of his interlocutors in their own languages. In Les Echos, the journalist observed:
Koen Lenaerts, the most powerful judge on the continent, then reads a few more judgments, in English, German, Italian, and Dutch – his native language. It becomes clear that, in addition to being an eminent jurist, this Arte fan possesses impressive linguistic talents.Footnote 35
Second, his communication and interpersonal soft skills. Lenaerts is described by a Dutch journalist as ‘affable’Footnote 36 and a French journalist underlined ‘his Olympian calm’.Footnote 37 Joseph Weiler describes him as ‘always, hugely courteous and respectful’. These statements show that Lenaerts values another essential soft skill: the ability to listen attentively to his interlocutors. All these qualities, recognised or valued, undoubtedly contribute to his ability to navigate the challenging period currently facing both the CJEU and the European Union.
As President, Lenaerts has to operate under ‘growing pressure’Footnote 38 on several fronts. Since 2010, the court has confronted the illiberal turns in Hungary and Poland, as well as open resistance from national supreme jurisdictions – including the Czech Constitutional Court,Footnote 39 the Danish Supreme Court,Footnote 40 the Italian Constitutional Court,Footnote 41 and, more recently, the German Constitutional Court,Footnote 42 the French Council of State,Footnote 43 and the Romanian Constitutional Court,Footnote 44 sometimes with government encouragement. He also presided over the court during the Brexit process, which became effective in 2020 following a referendum held in the UK in 2016. The referendum campaign propagated a discourse of rejection of the CJEU, and the post-referendum period was marked by fears of the court being seized and its actual seizure regarding the legal conditions of withdrawal. And all this was reported in the press.Footnote 45 The politically charged end of mandate of the British Advocate General Eleanor Sharpston created further institutional tensions.Footnote 46 Finally, Le Monde reported that there was ‘a very tense exchange’ between Bruno Lasserre, the then Vice-President of the French Conseil d’Etat, and President Lenaerts after the Court of Justice ruled that France had failed to fulfil its EU law obligations on the grounds that the Conseil d’Etat had not complied with its obligation to refer a case to Luxembourg for a preliminary ruling.Footnote 47 In sum, Lenaerts’ blend of scholarly expertise, judicial experience, and interpersonal skills has made him both a product and a shaper of the CJEU, enabling him to guide the court through turbulent times while embodying its authority on the European legal stage.
4. The institutional, jurisprudential, and media powers of President Lenaerts
A. The institutional power
Lenaerts does not publicly speak about the role he may have personally played in specific reforms of the CJEU or its organisation, a restraint expected of a President of the Court. Interviewed by Katerina Linos and Mark Pollak who asked him if there were such a thing as a ‘Lenaerts’ Court’, akin to a ‘Warren’s Court’ in the United States, Lenaerts firmly rejected the analogy. He stressed that there is no Lenaerts’ Court, as there was no Skouris’ Court, for three reasons: deliberations are consensus based, they are covered by the principle of secrecy, and there are no dissenting opinions.Footnote 48 By adopting this deliberately discreet stance, Lenaerts reinforces the image of a ‘faceless’Footnote 49 court, where the individual judge is subsumed by the institutional persona. This self-effacing posture stands in tension with contemporary scholarly efforts to acknowledge the role of judicial personalities in shaping legal discourse and institutional dynamics.
Despite his reserved public stance, Lenaerts’ published writings, interviews, and speeches regarding the court as an institution and its internal organisation, (published or broadcasts) reveal his considerable influence – both externally, in shaping public perception, and internally, in guiding the court. Having worked at the court for 37 years (since 1984, he served one year as référendaire, 14 years as judge of the Court of First Instance/General Court, nine years as judge at the Court of Justice, three years as Vice-president and ten years as President), he is both a witness to, and key actor in the judicial history of the institution.
Thus, as a pioneer judge of the newly created Court of first Instance in 1989, Lenaerts helped shape its role as an administrative jurisdiction.Footnote 50 He also served during the negotiation and entry into force of the Treaty of Nice (2001/2003), the most significant reform of the EU judicial architecture since 1953. That treaty expanded the CFI’s jurisdiction, granted it potential preliminary ruling powers under Article 256(3) TFEU, created the legal basis for specialised judicial panels, and introduced appellate and review procedures. Numerous aspects of the European judicial governance were reformed, revised, or constitutionalized. Notably, it granted new competences to the then CFI, for direct actions and was also given the potential to exercise preliminary ruling jurisdiction in certain areas. Article 256(3), first subparagraph of the TFEU, provides for the Tribunal’s preliminary ruling competence in areas specified by the Statute. The Treaty of Nice also established a legal basis for the creation of ‘specialized judicial panels’ that could be attached to the Tribunal; it introduced the Tribunal’s appellate jurisdiction and the review procedure designed to oversee its new preliminary and appellate functions. Later, when the Nice Treaty entered into force in 2003, Lenaerts was judge at the Court of Justice. Since then, the Opinions of Advocates General are delivered only ‘on cases which, in accordance with the Statute of the CJEU, require his involvement’ (Article 252, second paragraph, TFEU). As pioneers, Lenaerts and his colleagues, necessarily played a key role in determining how to interpret Article 20 of the Statute, which provides that ‘Where it considers that the case raises no new point of law, the court may decide, after hearing the Advocate-General, that the case shall be determined without a submission from the Advocate-General’.
The Treaty of Lisbon, which entered into force in 2010, ultimately codified and rationalised the innovations introduced by the Treaty of Nice. It enshrined in Article 19 TEU the three-tier structure of what became the CJEU, composed of the Court of Justice, the General Court, and specialised courts. Since the Statute of the CJEU was not amended to list the areas covered by Article 256(3), its provisions remained dormant for a prolonged period of 21 years. Eventually, under Lenaert’s presidency, the Statute has been modified to transfer to the General Court the competence to answer to preliminary rulings in different technical fields. This reform appears primarily as an unintended consequence of the Statute’s amendment, initiated in 2012 under the Skouris’ Presidency, and adopted in 2015, which resulted in doubling the number of judges at the General Court with Lenaerts being then the first appointed Vice-President. In 2004, this reform culminated in the creation of the Civil Service Tribunal – a seven-judge panel specialising in litigation related to the European civil service (whose competences were taken back over by the General Court in 2016).
Even though Lenaerts never claims personal credit for these reforms, he consistently defends them. Responding to criticisms of the General Court’s expansion,Footnote 51 and even successive reforms adopted at the expense of an overall vision of the CJEU’s organisation, he retains a conciliatory approach emphasising that the reform simplified the Union’s judicial structure. Despite the wording of the Treaty, he specified that the institution would be ‘composed of two courts, instead of the three currently existing [the third at the time was the Civil Service Tribunal], and that the objective was to better establish the legitimacy of the General Court’s decisions’.Footnote 52
On gender parity, despite criticism of the underrepresentation of women at the Court of JusticeFootnote 53 and the fact that some Member States, including Belgium and France, do not respect the parity principle in their appointments, Lenaerts approaches this issue in a different way. He acknowledges that equal representation is indeed necessary within the CJEU, and this underrepresentation of women should naturally evolve due to the broader feminisation of the legal profession including law faculties and the judiciary. However, he also thinks that if one calculates the number of women across the entire institution (including the General Court and the Court of Justice), the figures are much better.Footnote 54
Concerning another issue often criticized by scholars, the renewable six-year mandate of CJEU judges, Lenaerts states that ‘The fact that the mandate is for six years and renewable does not pose a problem, insofar as it is counterbalanced by other features’,Footnote 55 such as the collegiality principle. On the visibility of the court, he insists: ‘First of all, the CJEU is not an unknown institution, as the media coverage of many of its rulings clearly demonstrates […] It is nonetheless likely true that citizens do not know enough about the competences and functioning of the Court of Justice’. He also points to the increasing numbers of visitors, livestreamed hearings, and an active presence on platforms such as LinkedIn as signs of growing visibility.Footnote 56
B. The jurisprudential power
On the jurisprudential front, Lenaerts emphasises the role of the President and of the Vice-President in identifying divergences in jurisprudence and selecting cases for referral to the Grand Chamber.Footnote 57 In a Liber amicorum contribution honouring Vassilios Skouris, he credited his predecessor as: ‘the first President of the CJEU, who, as President of the Grand Chamber of the Court of Justice, made a decisive contribution to the jurisprudential consolidation of these foundations’.Footnote 58 Under the Lenaerts’ presidency, the number of cases referred to a Grand Chamber, increased from 37 (on 884 pending cases) in 2014 to 69 (out of 1149 pending cases) in 2023, or what is the same, from 4 per cent to 6 per cent of the pending cases.
This does not mean, however, that Lenaerts exercises the presidency in an authoritarian way, ie, setting aside the views of his colleagues.Footnote 59 On the contrary, Lenaerts presents himself as a consensus builder.Footnote 60 Asked by a journalist at De Morgen, ‘Do you compromise?’ President Koen Lenaerts replied ‘Not compromises, but syntheses’.Footnote 61 He adds that one must ‘be able to convince colleagues of a synthesis while being a good listener. We actually apply what the German philosopher Jürgen Habermas calls deliberative democracy’.Footnote 62 He likewise describes his own election as President as the outcome of consensus within the court. Yet it bears noting that Advocates General do not participate in this election, and judges of the General Court are also excluded, even though the outcome determines the presidency of the CJEU as a whole.Footnote 63
C. The media power
Externally, Lenaerts fully assumes his role as the Court’s defenderFootnote 64 and devotes his time to international, transnational, and national institutions, the academic world, and the press to ‘explain his vision of his institution’s mission’.Footnote 65 In an era of heightened transparency, he carefully balances openness with institutional limits.Footnote 66 This outward-facing role has given rise to what scholars called the ‘media power’ of the Presidency.Footnote 67 A comparative study of the Presidency of European Supreme Courts notes that along with the Presidents of the ECtHR, the President of the CJEU has been ‘particularly active’ in the media. Indeed, on Europresse database records fifteen interviews of the President of the CJEU in the general press, and five in specialised or institutional outlets. Against the backdrop of challenges such as the rule-of-law crisis and Brexit, he has chosen to engage directly with the media to explain and defend the court.
Journalists who meet him in Luxembourg to interview him are often struck by his presence, shaped by the institutional, architectural, and even topographical context, and tend to recount the encounter in a narrative form. One scholarly account stated that ‘he received us at the court’s headquarters on Friday, 22 March 2024. From his office on the 7th floor, the panoramic view over the city of Luxembourg is breath-taking’.Footnote 68 A journalist writing for the French newspaper Les Echos similarly wrote:
On this bright May 14th, where the sun makes Dominique Perrault’s slender towers shine, the French architect who designed the François Mitterrand Library in Paris and beautifully renovated the once dusty building of the court, set on the Kirchberg plateau away from the city center of Luxembourg, Koen Lenaerts displays Olympian calm.Footnote 69
Also, De Standaard described President Lenaerts in his ‘office on the 7th floor, overlooking the European district of Kirchberg [where] ‘his’ court has a third golden tower’.Footnote 70 Over time, Lenaerts has come to be referred to as the ‘most powerful judge in Europe’, both in doctrinal scholarshipFootnote 71 and in the general press such as Les Echos,Footnote 72 De Morgen Footnote 73 and De Standaard.Footnote 74
In sum, Lenaerts exemplifies how the authority and legitimacy of an institution like the CJEU can be shaped by the individual occupying its highest office. His presidency illustrates a dynamic interplay whereby personal authority not only reinforces but also redefines the institutional role of the court.Footnote 75
5. The CJEU only ‘states the law’ … but what is President Lenaerts’ way of approaching the CJEU jurisprudence?
A. Fictions and self-presentation
Lenaerts cultivates the fiction – essential for the functioning of any judicial system – that the Court of Justice merely states the law.Footnote 76 This narrative downplays the political dimension of jurisprudence and the political role of judges. In doing so, he fulfils the institutional script of the President: he presents both himself and the court as non-political actors.
This self-presentation appears in several forms. First, Lenaerts considers his appointment as a judge by the Belgian government to be only ‘formally’ political, with no political steps in his career; only his professional competence (implicitly as a jurist) mattered.Footnote 77 This fuels the idea that the recruitment of judges and Advocates General is a non-political recruitment of experts by experts, reinforced by the creation of the Article 255 Panel in 2010.Footnote 78
Second, he stresses the symbolic meaning of the judge’s robe. He views wearing a judge’s robe not as ‘a tool of power’ but as an indicator ‘that the person wearing it is fulfilling a certain role at that moment’.Footnote 79 While he often ‘sees former students among the lawyers pleading before the court, friends too’, the wearing of the robe signals that ‘now we each play our role, and friendship doesn’t matter. One is the lawyer for one party, while as a judge, one represents the public interest’.Footnote 80 For this reason, according to him, lobbyists have no place at the CJEU,Footnote 81 where judges are protected by a sufficiently comfortable salary. Likewise, the power of a judge lies in her ability to persuade her colleagues through legal reasoning.Footnote 82 The erudition he values resides primarily in the excellent command of the law, especially EU law, as noted by Les Echos, describing him as a ‘brain that is visibly perfectly structured in articles, paragraphs, and clauses’.Footnote 83 He therefore plays a key role in putting legal reasoning, an essential quality of any jurist, above all.Footnote 84
Third, Lenaerts regularly insists that the Court of Justice ‘is not a political institution’:Footnote 85 ‘We are not pro-Union, we are not against Union’, he said. ‘We are pro-law. The law is made by the political process’Footnote 86 and it must resolve disputes submitted to it ‘by applying the law, nothing more, nothing less’.Footnote 87 Similarly, engaged citizens turn to European Law, and in turn, it protects their rights.Footnote 88 While the court’s reasoning is ‘not mathematical, there is not just one possible judgment […] the goal is, however, for a judgment to be as convincing as possible so that the losing party recognises the chosen path’.Footnote 89 The court ‘does not invent the law’,Footnote 90 but its ‘creative function of the law’ does not need to be encouraged or deplored; it results from the political choice of institutions to draft the law in such a way that there are areas of uncertainty, ‘grey zones’,Footnote 91 which facilitate the formation of political consensus. He took the example of the interpretation of the term ‘spouse’ within the meaning of the provisions of EU law on freedom of residence for EU citizens and their family members. The CJEU has included spouses of the same sex, because of the gap left by the legislator.Footnote 92 If the legislator had made more evident political choices, then the court’s role would have been relegated to a more ‘classic’ one.Footnote 93
B. Scholarly critiques
From his perspective, then, the court has not expanded its competences but simply exercised the interpretive prerogative given to it by the Treaties. Lenaerts rejects the idea that ‘the court has usurped one or another competence in a ‘power grab’ logic: no, the court’s monopoly on interpreting EU law stems from the treaties’.Footnote 94 Similarly, if the British have an issue with the court, ‘it’s because they have a problem with constitutional control in general’.Footnote 95 In his own words:
by drawing the borderline between law and politics, courts in fact are drawing the contours of their own legitimacy. The imperative that requires courts to stand behind that line is by no means novel but has been part of constitutionalism it was born.Footnote 96
For Lenaerts, the court’s activism consists only in fulfilling its treaty obligation to uphold ‘the rule of law’.Footnote 97 Yet this raises the question: where exactly is the dividing line between law and politics – and who draws it? Weiler critically summarized his position: ‘There is a line between law and politics, the crossing over of which renders the decision and the court illegitimate. Just so’.Footnote 98 As Jan Komárek has argued in his critique of Lenaerts’ writings on legitimacy, ‘“Saying what the law is” is as unhelpful a criterion as is to assert that judges act as umpires’.Footnote 99
Building on these critiques, I argue that Lenaerts’s dual role as President and scholar matters. As President, he fulfils his duty to present the institution as apolitical and neutral, but his position becomes more open to criticism when he defends it as an academic. Moreover, as an academic, he expresses his interpretation of the law. He also chooses to intervene ‘as a citizen’, mainly through his public speeches or interviews, where he expresses his political vision of the European Union.
C. Two functions of Lenaerts’ scholarly publications
The next step in this hermeneutical analysis is to show how Lenaerts’s scholarly publications perform two distinct functions when addressing both EU Law, the court, its reasoning, and its legitimacy. These functions consist first in acknowledging but not engaging with critiques; second in asserting coherence.
First, President Lenaerts openly acknowledges the critiques coming from legal scholarship, especially at the beginning of his publication - expressing full respects for them, yet without engaging with them,Footnote 100 with rare exceptionsFootnote 101 and rather affirms more firmly his own interpretation of the law. All his academic publications show that he does talk about interpretation, despite his claim that the court is the simple mouth of the law. In his article in ‘Judging judges’, he says that there is ‘great merit’ in the critique of the court’s legal reasoning, but goes on to explain that these deficiencies are caused by institutional constraints in the organisation of the court, namely that it operates under the principle of collegiality, the absence of separate or dissenting opinions and the need for consensus building. And then his article does not engage with any of the arguments. In his publications on the rule of law case law, he mainly explains and defends the CJEU’s case law.Footnote 102 He concedes that ‘It is true that ‘judicial independence’ has been examined by the Court of Justice in the past when a body – that did not belong to the national judiciary – sought to make a reference to that court, as a requirement that the referring body has to meet in order to have access to the preliminary reference mechanism’. But he adds: ‘that case law, however, did not relate to concerns that the judicial independence of a national court was in doubt’.Footnote 103
Second, Lenaerts sustains that the court produces a coherent line of jurisprudence. In his view, interpretation is a matter of balancing, with no conflict or contradiction.Footnote 104 In his doctrinal work, jurisprudence is presented as coherent, an eminently necessary quality to exist as such. Among the multitude of possible examples,Footnote 105 a notable reference is the new interpretation given to Articles 2 and 19 TEU in the Associação Sindical dos Juízes Portugueses case.Footnote 106 According to Lenaerts, this interpretation ‘is not a surprise’Footnote 107 and is ‘positive’Footnote 108 as the court in no way redesigns the national judicial systems.Footnote 109 Regarding the relationship between the proper application of EU law and respect for national diversities, he asserts that the court maintains the right balance between the need to preserve values and openness.Footnote 110 In the same vein, the journalist from Les Echos notes that
[Lenaerts] has a whole series of examples up his sleeve that prove respect for national identities and assures us that everything stems from Article 4(2) of the Treaty on the Union: ‘The Union shall respect the equality of Member States before the Treaties as well as their national identity, inherent in their fundamental political and constitutional structures’.Footnote 111
Lenaerts thus seeks to make the court’s jurisprudence as coherent as possible, giving it the necessary qualities to actually be a jurisprudence. This structured vision of the CJEU’s organisation, jurisprudence, and EU law appears to reflect his own ability to synthesise. It can be hypothesised that Koen Lenaerts’ mindset, his inclination toward consensus, and his multilingualism may influence his vision of the CJEU, its organisation, jurisprudence, and EU law. Furthermore, as noted by Daniel Sarmiento,
[He] has devoted [his] entire professional live to EU Law [and is] part of that generation of lawyers whose legal education very strongly influenced by the very beginning of EEC law, and it is quite a contrast with previous judges or even presidents of the court who came mostly from other areas of legal practice and then developed a practice into European Union law.Footnote 112
This immense knowledge of EU law is combined with an analytical mind, described by Joseph Weiler in these terms:
His prowess, where he is second to none and better than most, is his encyclopedic knowledge coupled with a most ingenious synthetic talent. Take any disparate group of cases in any area and put it through the Lenaerts mill, and an illuminating doctrinal map will emerge, often with novel categories and a systemic narrative. He does it with great effect when dealing with the meta-narrative, the EU legal order as a whole as with its arcane minutiae.Footnote 113
This synthesizing ability is further demonstrated in his readiness to portray case law as a balancing act. In Lenaerts’view, ‘to say what the law of the EU is involves a complex balancing exercise which must be struck in a pluralist environment where the mutual exchange of ideas is of essence’.Footnote 114 Also, institutional autonomy is the result of a right balancing between, on the one hand, the structural and institutional principles of the Union, and, on the other hand, the spirit of openness toward public international law. It is this balance that underpins the constitutional foundations of the European Union’.Footnote 115 He also considers that ‘the study of the fundamental rights protection system established by the treaties allows for identifying how the Union’s legal order balances unity and diversity.Footnote 116 Finally, ‘Comparative method is a valuable interpretative tool that enables the Court of Justice to find a dynamic balance between “unity” and “diversity”’.Footnote 117
Lenaerts praises harmony, in particular to characterise the relationship between the ECtHR and the CJEU:
[It] is not really a question of which court had the ‘first word’. On the contrary, both Courts are engaged in a joint effort to create synergies aimed at establishing a harmonious protection of fundamental rights in Europe.Footnote 118
Harmony is also important concerning the opposition between the CJEU and national supreme courts:
It is incorrect to reduce the development of this ‘functional constitution’ and the constitutional law of the Member States to a mere relationship of competition. In reality, they are meant to coexist and evolve in a harmonious manner.Footnote 119
Concerning the French Data Network Case, which opened a strong opposition from the French Conseil d’Etat to the European Court of Justice, he considers that ‘That court has clearly recognized and accepted that the Court of Justice is the supreme interpreter of Union law’. Once again, he says
I am convinced that this greater transparency, accompanied by regular meetings at the Court of Justice during the Judges’ Forums, will contribute to the harmonious development of the legal order of a Union enriched by its constitutional pluralism and the common values shared by its members.Footnote 120
His structured view of the court’s reasoning reflects his own inclination toward synthesis, consensus, and multilingual precision.
D. Between (Euro) optimism and ambiguity
In his speeches and interviews, Lenaerts frequently provides ‘narrative fragments’Footnote 121 and openly embraces the idea that Europe is beneficial for its citizens. Particularly in Flemish newspapers, he reveals not only his view on EU law and the CJEU but also his broader vision of Europe itself.
This narrative of a ‘Good Europe,Footnote 122 which benefits all Europeans, can be found in many statements. For example, Lenaerts asserts that EU law is ‘humanistic law because it is deeply rooted in the fundamental values inherent in the protection and development of the human person’Footnote 123 and that it is ‘positive’.Footnote 124 Citizens, primarily seen as rights’ holders, ‘can, with the help of lawyers, contribute to the improvement of society’.Footnote 125 Lenaerts has faith in European construction, whose ‘genius lies in uniting diversity through a process deeply imbued with political and democratic negotiation’.Footnote 126 He states that ‘Europe forms a critical mass that allows its members to have an impact in these debates because on their own, they can no longer do so’.Footnote 127 He also considers that ‘solidarity has long played a driving role in the development of Union law, a role that has continued to grow alongside the deepening of integration as well as the crises that have marked the recent history of the European continent’.Footnote 128
In his speech on the solemn engagement of members of the European Commission, he stated that:
Fundamentally, the building of Europe has transformed a continent, which for centuries was torn apart by wars, into a haven of peace and prosperity, in which individual rights and freedoms as well as values of democracy are not simply concepts devoid of practical importance. It has dramatically increased citizens’ standard of living in every Member State, whether a founding Member State or a Member State that has joined the European Union more recently. (And one should not overlook) the undeniable benefits represented, both for citizens and for businesses, by the large European market.Footnote 129
By emphasising Europe’s progress and effectiveness, he seems to bring together the narrative of the Good Europe and the CJEU meta-narrative of European integration identified by Elsa Bernard.Footnote 130 Indeed, to address the various crises faced by the EU, he considers that:
[the inherent complexity of Europe] is the model of the future, and it is this awareness that leads political powers to make necessary choices. The Court of Justice will do the rest: if an individual challenges a decision of EU institutions, if a Member State does not faithfully apply common rules…Footnote 131
However, he also explained to the Financial Times that the court itself is not a federalist force, as ‘[w]e are not ourselves proactive in this process of deepening as it is oftentimes in the national capitals said’.Footnote 132
The ambiguity lies in the fact that he distinguishes between his role as President of an institution, from his perspectives as a citizen, and his academic work – as if it were possible to separate them. As President, he asserts that the Court is neither pro-Union, nor anti-Union, but rather pro-law. As a citizen, he appreciates the evolution of the European Union as ‘pleasant’Footnote 133 and ‘continues to believe in Europe’:Footnote 134 he aligns with the integration approach. When asked by Le Monde about the deep migrant crisis, he responds, ‘If you ask me for my opinion as a citizen, I would say that right now, those who have less experience with pluralistic political powers are quick to panic’.Footnote 135 And as a scholar, he anticipated the evolution of integration, drew parallels between the U.S. Supreme Court and the Court of Justice of the European Communities and presents the CJEU case law as coherent.Footnote 136
Regardless of how one conceives the European project and its achievements, one may agree with Lenaerts when he states that ‘we need unity because many societal challenges can only be addressed at a level of governance that transcends the nation-state’.Footnote 137 Arguably all of his positions on European law, and Europe, the court, and European integration reflect a consistent (euro-)optimism. This optimism is embraced by Lenaerts, who claims his personal ability to see the ‘glass half full’ rather than ‘half empty’Footnote 138 and describes himself as an ‘idealist of European law’.Footnote 139 Regarding the ‘Dublin system’ in asylum matters, he emphasises that ‘the European Union brings together peoples like the Hungarian people, spread between Hungary, Slovakia, Romania, and Austria. Dublin is not dead, not at all. Europe will absolutely solve its problems’.Footnote 140 And the problem of challenges from national supreme and constitutional courts, with Armin von Bodgandy’s rural metaphor suggesting that judicial cooperation is a forest that grows in silence but makes noise when a tree falls? He says, ‘The forest is doing very well’,Footnote 141 and he points to the nearly 600 preliminary rulings referred to the Court of Justice this year. Moreover, ‘apart from a few recent cases […] cooperation between the Court of Justice and national courts is working harmoniously’.Footnote 142 Furthermore, ‘our relationship with the German Constitutional Court is excellent. One should not dwell on one or two crisis cases. It is our best ally’.Footnote 143 His vision of the future is driven by this European optimism he displayed despite the ‘Leave’ vote victory in the UK in the following terms: ‘I think we are at a stage of consolidation, and we will see where it takes us’.Footnote 144
Lenaerts further says that he is ‘always very reluctant to subscribe to the discourse on the EU that does not move forward, that is not effective, etc. Because in our process, everyone continues to talk to each other with dignity, mutual respect, and with the will to find a solution to the problem’.Footnote 145 The contrast is striking with the vision presented by his former colleague at the CJEU and fellow countryman Franklin Dehousse, when he envisioned a possible future amendment of the treaties: ‘I am convinced that the next one, not to mention the ratifications, will resemble the ascent of the Eiger’s north face. Expect accidents, pain, injuries, and an immense feeling of never-ending’.Footnote 146
Ultimately, Lenaerts’ thought reveals an ambiguity. Institutionally, he insists that the court is not a federalist engine of integration. Yet as a citizen and scholar, he affirms Europe’s capacity to meet transnational challenges and insists on the necessity of unity beyond the nation-state, while respecting national identities. His faith in European integration, rooted in solidarity, consensus, and optimism, underpins both his jurisprudential philosophy and his vision of law’s role in the Union.
6. Conclusion
President Lenaerts is an exceptionally talented legal mind, trained from his earliest years as a student of Community law, whose career has been both shaped by and devoted to the court. This article underscores that Lenaerts does not publicly assert a decisive role in either the organisation of the court or the shaping of its jurisprudence, whereby he seeks to convey the image of a faceless court.
Yet, notwithstanding this self-effacing stance, his influence derives from his presence during the adoption and implementation of important reforms. His involvement as a judge, together with others, in key moments of the court’s institutional evolution – such as the creation of the General Court, the establishment and later dissolution of the Civil Service Tribunal, the abolition of Advocate General opinions in certain cases, and the transfer of preliminary ruling jurisdiction to the General Court – positions him as a central figure in the court’s history.
This Article further demonstrates that, despite his insistence on neutrality, Lenaerts conceives of EU law as a space of struggle and compromise, balance, and harmony – above all, as a law he considers intrinsically good – while largely avoiding deeper engagement with opposing scholarly critiques.
Finally, the article demonstrates that this vision is closely tied to his faith in Europe and his inherent optimism, and that his position is not without ambiguity, as he frequently shifts roles – scholar, citizen, or President – while defending a position. His dual role as President and academic exposes his position to doctrinal criticism. As President, it is expected that he defends his institution and upholds the idea that the court is merely the bouche de la loi and that a clear dividing line exists between law and politics. As an academic, however, this position is more open to debate.
Acknowledgements
The author wants to thank Fernanda Nicola, William Phelan, Lionel Zevounou and the external reviewers of ELO for their comments and edits on previous versions of this article. She wants also to thank Vincent Reveillere, Elsa Bernard, Antoine Bailleux, Sophie Jacquot and Quentin Landenne for comments on another article previously published in French (‘La Bonne Europe du Président Koen Lenaerts’, in Antoine Bailleux, Elsa Bernard, Sophie Jacquot and Quentin Landen (eds) Les récits judiciaires de l’Europe (vol. 3) - Diffusion, réception et coproduction (Bruylant, 2023), 169). The usual disclaimer applies.
Competing interests
The author declares none.
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