FELIX RONKES AGERBEEK: Welcome back to EuropaFelix. I'm Felix Ronkes Agerbeek. My guest in this episode is Daniel Sarmiento. He's the editor-in-chief of EU Law Live, an online platform launched in 2020 that has taken the world of EU law by storm. But he's also a lawyer and a professor whose academic writing is very much informed by his work as a legal practitioner. We talk about how the Court of Justice changes its mind, about silent judgments and judicial minimalism, and about the impact of the Charter of Fundamental Rights of the European Union. What ties all these different topics together is a basic insight that I think quietly underpins all of Daniel's work. Namely, that law is made of practice, not of theory. Here is Daniel Sarmiento. 

Daniel, welcome to the show. 

DANIEL SARMIENTO: Thank you for having me, Felix. 

FELIX RONKES AGERBEEK: Many listeners will know you as the chief editor of EU Law Live, but for those who do not know it, would you mind explaining what EU Law Live is and how it came about?

DANIEL SARMIENTO: Sure. EU Law Live is the result of my own frustrations, because I used to work at the Court of Justice as a réféndaire. And I remember being very frustrated with a lot of the academic production coming out of its time, either because it came out very, very late, or because when it came out, it tackled the issues in ways which might not be very useful. And then I realised that there was a a bit of a mismatch between academia and practice. And then I started working in legal practice and I was in touch with the contents that are most usually consumed by lawyers, which were also very frustrating, very superficial, mostly news. So EU Law Live is a bit of a blend of news and also academia, but in a way that's fast, that keeps the quality of academic writing in a way that that is also accessible for practitioners. So that's what it's supposed to be, and that's how it came about. 

FELIX RONKES AGERBEEK: EU Law Live is lots of things, isn't it? You offer news and analysis, but you also publish books, you organise academic events, and you have a podcast series. 

DANIEL SARMIENTO: Yes, we do a lot of things, but that's because EU law is so rich. EU law is an incredible legal system, I think. If I look at it comparatively with my national legal order, EU law is much more fun. 
It's much more challenging intellectually because of the complexity of the EU, because of the cultural diversity, and because of the size. EU law is just a wonderful machine. So if you want to make a platform out of EU law, it's all there for you. So it's relatively easy to produce many things as we do at EU Law Live. 

FELIX RONKES AGERBEEK: You yourself are also very prolific and we'll discuss some of your academic writing in a moment. But you've also made a documentary on the Spanish Constitutional Court. What prompted you to make that documentary? 

DANIEL SARMIENTO: Well, I've always been very interested in institution building. I've always been very interested in the Spanish transition towards democracy. I think it's a fascinating chapter, not just in Spanish history, but in contemporary history. It's kind of a textbook example of how to do a transition into democracy from a military dictatorship into a liberal constitutional state. And I've always had a fascination with courts. So at some point, I thought that it would be nice to focus on one of the hidden treasures of the Spanish transition, which was the creation of the Constitutional Court. 

FELIX RONKES AGERBEEK: For those who don't know the history of Spain and the Constitutional Court that well, we're talking now about essentially 1980, right, a few years after the death of Franco?

DANIEL SARMIENTO: Franco dies in 75, the Constitution comes into force in 78, and in 1981, the Constitutional Court starts working. So there were three years there in which this court had to be built from the very, very simplest aspects as finding a building all the way to the appointment of the first generation of judges. And a few of them were still alive in the early 2000s. So I thought about sitting down with them to talk about the experience of creating this court and then it very naturally flowed into an audiovisual project. I decided together with a colleague, with Miguel Beltrán, to turn this into a documentary, which was a very good move. I'm very happy that we did that. They all died shortly after we finished recording. So it's been left there as a testimony of their great and incredible work. 

FELIX RONKES AGERBEEK: One of the stories that caught my attention in the documentary was the decision of who should become the first president of the court. Would you mind telling that story? 

DANIEL SARMIENTO: Yeah, that's a great story. When the first court was to be constituted, there was this interest on the part of the government to have a specific president appointed, Aurelio Menendez, a very prestigious professor of commercial law. And when the decision as to the appointment of the president came, it was the very first decision that the court had to make. And there is a part in documentary in which Francisco Rubio, who's one of the judges who was appointed then, he says, he tells it very naturally, very spontaneously, that he was on a walk with the prime minister. 
And the prime minister told him, well, you know, Paco, as they called Rubio Llorente at the time, that it's my intention that Aurelio becomes the president of the court. And Rubio Llorente replied according to Rubio Llorente: Well, in that case, Prime Minister, it's my intention that Aurelio never becomes president, not because I doubt his integrity, on the contrary, but if the first decision of the court was to follow an instruction coming from the government, the court would be wounded at its very, very, very origin. And that's something I will not support. And that's actually what happened. Aurelio Menendez was not appointed president. He wasn't voted by his peers. 
He was another of the judges who actually was a man who had lived in exile for a long time in Venezuela, a very, very prestigious professor of constitutional law. And that was a very clear sign of independence on the part of that first generation of judges, which I think tells a lot about the importance of those first decisions in the setup, because it did set a trend for the future, which I don't know if at this stage it's continued. But that trend of independence was very, very present in that institution for a long time. 

FELIX RONKES AGERBEEK: I think it's a remarkable story. And Aurelio Menendez? Because you were able to interview him.

DANIEL SARMIENTO: Yes. And he had never spoken about this. And he spoke to us and you could still see that he was still upset many decades later. But he was very elegant about it. When the day came to make the vote and he knew that he didn't have the votes, he was the first one to speak, to take the floor in that deliberation. And his first words were to support the nomination of García Pelayo as president of the court. So in that sense, he was a fair player and he did leave the court very discreetly. He resigned. And I think that he left in a very dignified way, considering how unpleasant it must have all been for him. So I think that that also speaks a lot about a generation that did things in a certain way that is not the way you might expect now things to be done. 

FELIX RONKES AGERBEEK: People can see the documentary online. I'll put a link in the show notes. But let's now turn to the Court of Justice. You have recently published an article about the overruling technique of the court. And there you examine how the court changes its case law.
What made you decide to look into this? And why do you think it's important to look at the overruling technique of the court? 

DANIEL SARMIENTO: Because a Supreme Court, a constitutional court, has the responsibility of keeping the legal system together by solving cases. You see that tension all the time. You need to be fair in solving a case, But at the same time, you need to be loyal to not only precedent, but the entire legal order, which is not just an accumulation of precedents. It's something which goes way beyond that. And that's a challenge that every high court has to deal with. The Court of Justice has a more difficult task because it's facing a moving constitution. It's facing an evolving European Union. And it's dealing with a super complex environment, which is 27 member states with their 27 legal orders. And to put additional pressure to that, you need to keep legal consistency in a project whose main outcome or main product is law, because the EU as such is a lawmaking machine. So that's why I tried to address in that article, how does the court change its mind? 
Because I think that changing your mind is something that every court has to deal with. 

FELIX RONKES AGERBEEK: And how does the court change its mind? Could you give an example? 

DANIEL SARMIENTO: Well, it changes its mind by saying so openly. I mean, the court has already overruled itself by being very explicit about it. And we have several examples there. Keck is probably the classic example. But in Metock, it overruled itself in the field of free movement of persons. It's done it very recently on the direct effect of proportionality [in the NE case]. So it has done it, not very frequently, but it has done it. And then you have this variety of situations in which the court changes its mind without saying it very, very openly. 

FELIX RONKES AGERBEEK: You point out in your article that in practice overrulings, implicit or explicit, they always take place in the context of the preliminary reference procedure. And you argue that there is a reason for that. Could you explain that? 

DANIEL SARMIENTO: Yes, it's quite frequent to get references to the court in which the national court is saying, not in these terms, but the national court, what it really saying is, I don't understand this judgment. 
Can you clarify it for me? And the type of conversation that comes up is a conversation between national judges and the court of justice. And that complicity between judges changes the tone and changes the way in which you can assume that you can change, that you are changing your mind. So you could say, well, it's not the national judge that triggers the overruling. It's actually the parties who are going to trigger it in their disputes. But when it is a national court, which has all the credentials of impartiality when speaking to the court of justice, the reasons to reconsider your own case law, I think they're stronger in institutional terms. When you have a national court saying, please think this through, it's different to have a party tell the Court, please think this through. It also puts additional pressure on the court, I guess, because every time a court changes its mind, it might believe that it's losing authority vis-a-vis other courts. 
I don't think that that is the case. Sometimes overruling is a sign of strength, not a sign of weakness. But it's very clear that the preliminary reference procedure introduces a very different dynamic. 

FELIX RONKES AGERBEEK: So what I like about the article is that it gives a nice overview of judgments in which the court overruled its previous case law. And you also show that the court has different ways of going about it. You've tried to capture this in a typology of overrulings. Could you talk a bit more about that?

DANIEL SARMIENTO: In that article, I propose it's just an artificial classification. But I suggested to look at overrulings in the Court of Justice, not just by looking at how a court changes explicitly its mind. And there I proposed to look at it also through implicit overrulings and overrulings. And not only the variable of explicit and implicit overrulings, but also the effects that a change of mind might have. And sometimes you can have a change of mind on the part of the court of justice, which results in a complete reconsideration of a point of law. Sometimes you will have a change of mind, which is exteriorized as a clarification, but actually what you're clarifying results in a very different outcome. So you've actually changed the law by clarifying the law. And that's something that might happen as well. 

FELIX RONKES AGERBEEK: Could you give an example of a case in which the Court of Justice changed its case law in the way that you just described? A recent example is a very obscure case called Diego Porras. It's a reference coming from a Spanish labor court in which the court, in my opinion, misunderstood the issue, probably driven by the description of the facts and the law made by the national judge. That ruling, without going into the details, it basically reinterpreted the way in which fixed-term contracts operated in Spain. There are millions of fixed-term contracts right now in Spain. So the repercussions of the judgment were monumental. Immediately, the court received references from regional high courts, from the Supreme Court in an attempt to explain to the court that the findings in that judgment, Diego Porres, were wrong. And all those references were sent to the Court as an invitation to change its prior case law. The Court didn't do that. The Court didn't change its case law, didn't overrule its prior case law. The Court clarified its decision. And the way in which it clarified its decision is by looking at the facts and the laws that have now been brought to me. So it's quite clear that there is an overruling of Diego Porras in the Grupo Norte judgment, which came two years after Diego Porras. But if you look carefully at how that operation has been done. It's not through the traditional overruling technique. That's an example of how you can undergo a clarification of past case law, which is actually hiding an overruling of a previous judgment. 

FELIX RONKES AGERBEEK: So not all overrulings come in the form of explicit reversals of previous case law. And you're right that this can create problems of transparency. And you mentioned the Taricco case as an example. Now, this was the case in which the court initially told an Italian court to set aside a limitation period in criminal proceedings for VAT fraud. But then the Italian Constitutional Court said, well, wait a second, this creates a problem because criminal law cannot apply retroactively. 

DANIEL SARMIENTO: Yes. Now, again, in a very similar configuration to the situation between Diego Porras and Grupo Norte, you have the court of justice rectifying prior case law without saying it explicitly on the basis of new facts and arguments as being brought to it. It's very clear that when the Taricco case was brought to the Court, the Court didn't have a full idea of what it was entering and what consequences the decision would have in Italian criminal procedure. It was fully visible to the court when it received the reference in the MAS case. And the Constitutional Court, in a very didactic way, explained to the court what was the consequence, what was the effect of Taricco. 
The entire approach in MAS, it's based on the rationale of: now that I know what I know now, and that I didn't know at the time, I'm happy to introduce an additional criterion. And this additional criterion will allow you, national courts, to settle matters in a different way, to how I hinted in Taricco. It's a very pragmatic approach, but you have to deduce from the MAS judgment what is actually happening. If there is less deduction to be made by being more transparent, probably that's much better. And I remember listening in public to Vassilios Skouris in Naples make a comment on the MAS case. He was the president of the Court in Taricco. He wasn't the president of the Court in MAS. And I remember him saying, there's nothing wrong with saying that you want to change your mind. And he was referring to the MAS case. So even for those who were sitting in the Taricco case, MAS was probably a bit too obscure and more transparency would have been helpful. 

FELIX RONKES AGERBEEK: How do you see the role of the Advocate General in all this? 

DANIEL SARMIENTO: The AG, I think it's fundamental because usually if there is a need to make a change, the first signs of alarm will come from the AG. And they might come from the AG years before the change takes place. The AG has the freedom to speak his or her mind in proposing ways forward. It's the AG who I think has the institutional duty of doing that. There are no dissenting opinions in the court, so it is for the Advocate General to hold that responsibility of speaking in a more outspoken way. In these HAG I and II cases, which are the first clear-cut overruling of the court, it was Francis Jacobs who was saying, we need to change this. And he made a very strong case for a change of the case law and the court followed suit. 

FELIX RONKES AGERBEEK: These were the trademark cases about decaffeinated coffee. 

DANIEL SARMIENTO: Exactly, yeah. Yeah, and that's a very good example of how the role of the Advocate General plays in. And in Keck, in contrast, you have exactly the opposite. You have the Advocate General not really hinting that a change was coming. And the change did come. So it doesn't mean that the AG needs to be there necessarily, but it's true that it plays a very vital role in pointing into the direction in which changes should be coming. 

FELIX RONKES AGERBEEK: I would like to shift the focus a bit to how courts can avoid the need for overrulings to begin with. You have written about silent judgments and about judicial minimalism, which happens to be the topic that I like. And this notion of judicial minimalism was popularised by Cass Sunstein, an American scholar. And he distinguishes between two dimensions of minimalism. The first is the width of a ruling. So is the wide, very sweeping ruling? Or is the narrow ruling that is tailored to the specific facts of the case? So that's one dimension. 
And the second dimension is the depth of a ruling. And that refers to the depth of reasoning. reasoning is there thoroughly theorised ruling or is the shallow ruling without much theoretical depth? In your own writing, you point out that sometimes the court of justice renders what you call silent judgments that leave questions open. Why do you think that happens? Is that a deliberate choice? Is it the result of the way the Court functions? 

DANIEL SARMIENTO: I don't think there's a mathematical formula to explain that. And I don't think that there is a methodology that you can employ to explain that type of conduct on a court. I think all courts, to some extent, they are engaged in some degree of policymaking in the sense that they decide how deep they want to go in developing the case law, in scrutinising, and that will all come down to a variety of factors. I'm not a big fan of making grand theories to explain institutional behaviour. 
I think that it all comes down eventually to human beings, and you will not find a strict pattern, in the case of the Court of Justice at least. Then, if you go into the axes of the Sunstein book, if you go into those axes, then of course you can categorise the way in which the Court works in a very similar way to how any other court works. But there, even still, there are some differences which are proper to this jurisdiction. If you look at the issue of how many matters you want to solve, then you're, You have to take into account that the institutional framework in which the court operates is very different to the institutional framework of the U.S. Supreme Court, for example, or the German Constitutional Court. That's why the Sunstein analysis needs to be looked at with a pinch of salt. And then in terms of how deep you go, here you have another problem, which is the problem of theorising too much in a very complex community. And that's something that I think is very positive of the Court. The Court is not very theoretical. It produces lots of concepts, lots of legal concepts, but it's not theorising — in contrast with the German Constitutional Court, which is a court that tends to theorise a lot. If you look at the Court of Justice, it doesn't do it. There's a very conscious decision not to theorise too much, because how do we theorise? Do we theorise the French way? Do we theorise the German way? Do we theorise the Dutch way? All the legal traditions come into play when theorising about the law. And for the court of justice, there is no predominant legal tradition. So I think that when it comes to theorising in your judgments, when you're working in that kind of environment, the less you do it, probably the better it is to keep the system together. And that's why I think that judgments in that sense, they tend to be thin, but that's probably for the sake of the system. That's probably something that keeps the system together, paradoxically. 

FELIX RONKES AGERBEEK: Yeah, I can see that. Of course, in the collegiate system that you have at the Court of Justice, I guess it's also likely to happen that judges agree on a particular outcome, but that they do not agree on the big theoretical underpinnings of their judgment. 
And then there's, of course, also just the pressure of needing to move on to the next case. So sometimes, I guess, by necessity, you would expect a more minimalist judgment. Now, I can see the wisdom of not biting off more than you can chew by trying to come up with grand theories, but I still want to test you a bit on this idea because there is an obvious drawback, and that's that it can move into the territory of not really giving much reasoning at all. There's one case I have in mind here because you also cite it, and that's the case of Ruiz Zambrano. It's an important judgment about EU citizenship. And the way I see that judgment is as quite sweeping in its consequences. So to stay in the terminology of Cass Sunstein, it is a relatively wide judgment, not minimalist. But in terms of its reasoning, I would argue that the judgment is shallow. It doesn't say so much. It simply states the big paradigm and then jumps to the conclusion with very little reasoning in between. So it is both wide and shallow. But that combination, you could say it's an example of the court wielding great power, but with very little persuasion…

DANIEL SARMIENTO: On the strictly formal quantitative dimension of how much do you reason, how many pages long is the judgment, there I agree that Ruiz Zambrano is disappointing. It's not a good example of legal writing in quantitative terms. But if you look at Ruiz Zambrano, I would say that it does make a very broad statement with very important repercussions in terms of immigration law, in terms of EU citizenship, but at the same time, it's deep. Because you might say, OK, there are only seven relevant paragraphs there and very, very short ones. But the genuine enforcement of the substance of the rights test is a very deep concept that's been introduced into the case law. 
So in terms of the depth of the judgment, I think it's a very deep judgment. Of course, very short, but the case law is always evolutive and in the case law that's come afterwards you have several Grand Chamber judgments in which the court has explained how that genuine judgment of the substance of the rights test is to operate. What are the limits? It's very exceptional, but at the same time, it's been growing cautiously. How it interplays with fundamental rights, that's all been explained as time has gone by. So I think that the number of words that you provide, of course, is important, but that can be easily fixed. Fixing a wrong deep concept can be very difficult. 

FELIX RONKES AGERBEEK: That actually brings us a bit back to overrulings and how to avoid the need for them. It is interesting that you see that ruling differently. And I think it also shows how difficult the notion of minimalism is to apply. You know, terms like wide and narrow and deep and shallow, they are not absolute. They are relative notions. And I personally wouldn't make any claim that minimalism is good or bad or that the court is always minimalist. If you look at the judgment in Centraal Israëlitische Consistorie, the judgment on ritual slaughter and animal welfare, for example, then what I see is a ruling that sits in a very different corner of, call it the Sunstein matrix. The ruling is very precise, very specific for the case at hand, so very narrow. But the reasoning, at least in my view, is very full, very theorised. So I would call that a relatively deep reasoning. 

DANIEL SARMIENTO: Well we come back to the previous discussion about whether this is all part of a preconceived plan that's subject to a very sophisticated methodology and it's not. In the case of Ruiz Zambrano I think that the reasons that explain why you have such a brief judgment it has to do with the fact that the decision they wanted to make was very difficult to agree and eventually they agreed on the outcome but they didn't agree on how to reach that outcome. They decided to work on that in future cases, knowing that the cases would come, as they did. That might not be a very sophisticated explanation, but probably that's what happened. In the cases on freedom of religion, I think the circumstance is very different. First, because the Court started receiving a growing number of cases on freedom of religion which needed to be addressed. On the other hand, the court had the benefit of a very rich Strasbourg case law. And there you have a very nice kind of safety net that might justify the actual reasoning that you see in the judgment. 

FELIX RONKES AGERBEEK: Since we're now on fundamental rights and since we're basically doing a tour of some of your academic work, I was wondering if you could talk a bit about an article you wrote for the Common Market Law Review. It's called Who's Afraid of the Charter? And in it you discuss the judgments of Åkerberg Fransson and Melloni. 

DANIEL SARMIENTO: Yeah, that article came at a very important time for fundamental rights protection in the EU, because it was a time of the implementation in its early stages of the Charter, which had come into force on the 1st of December 2009 with the Lisbon Treaty. And I was working at the Court at the time then. And I remember speaking with colleagues about the charter and the general feeling inside the court, at least with the people I talked to, was this kind of, oh, nothing changes, you know, all those rights, they're already general principles of EU law, no change. And I always felt uneasy about that analysis. My feeling was that the Charter was going to bring about a lot of change. And I must say that I was right, because fundamental rights in the EU are nothing like they were in pre-Charter times as they are today. 

FELIX RONKES AGERBEEK: In pre-Charter times, Joseph Weiler, who you know very well, he argued we don't need a Charter. It's not necessary. It won't change anything. He said what we need is a policy on human rights. We need action in that field, not a Charter. 

DANIEL SARMIENTO: That is correct. But now that we have a Charter, construing a fundamental rights or a human rights policy at the EU level is much easier because there is a Charter. I think that the dynamics of the Charter, they weren't very clearly planned. In fact, it was all quite chaotic. I mean, you remember the first convention and the Nice Treaty and the frustrations of the Nice Treaty with the Charter and then this inter-institutional declaration to make the Charter kind of self-binding. 
And then you have the European Constitution, the Constitutional Treaty, and then the Lisbon… 
So the Charter itself, it was kind of a mess in terms of how it ended up becoming what it is today. So there wasn't a preconceived plan. But the outcome was that it has changed things very significantly. And it has helped in developing a human rights policy at the EU level. 

FELIX RONKES AGERBEEK: That's actually ironic because in some corners there was a belief that the Charter would limit the EU's powers in the field of human rights. But then the judgment in Åkerberg Fransson, another VAT case, came. How would you describe the impact of that case? 

DANIEL SARMIENTO: Åkerberg Fransson is a case on the scope of application of a Charter in the Member States. And you would say: What's new under the sun? But Åkerberg Fransson was a hugely controversial case. It was hugely controversial in many member states. It created a huge backlash because there were expectations. There were expectations on how the Charter was going to be implemented that departed from the traditional stance. And when the court confirmed the traditional stance, it was a big issue in some Member States. But Åkerberg Fransson was simply stating the status quo. 

FELIX RONKES AGERBEEK: You wrote that the Charter also influenced the relationship between the Court of Justice and national constitutional courts. Why is that? 

DANIEL SARMIENTO: Because constitutional courts immediately realised, because they are the ones who have a fundamental rights document on their table 24 hours a day. The court didn't until the Charter. So constitutional courts know what it means to have a fundamental rights document there. So all these references started coming from constitutional courts to the Court of Justice, and Melloni is an example of that. 

FELIX RONKES AGERBEEK: Yeah, Melloni is a pivotal judgment, and it brings us back to the Spanish Constitutional Court. Could you remind us what that case was about? 

DANIEL SARMIENTO: It’s a very complicated case because it can only be understood with the Spanish specificity, which was the specificity of ultra-protection of extradition procedures, ultra-protection of accused individuals in extradition procedures. So in Spain, it's practically precluded under constitutional law to put someone into criminal procedures in absentia. So there was this case law which said, well, in the same way that we don't put individuals in criminal procedures in absentia in Spain, we don't extradite anyone who has been convicted in absentia in another country, which created a huge problem, mostly with Italy, because then Spain became kind of a safe haven for many criminals who were convicted in absentia in Italy, with all the standards required by Strasbourg case law, but convicted in absentia. So they would come to Spain, they would never be extradited. So when the European Arrest Warrant came through, that was an issue. So the Constitutional Court made reference to the Court of Justice saying, well, I have here Mr. 
Melloni, who is someone who has been convicted and absent in Italy. He's in Spain. I can't extradite him, but now we have the European Arrest Warrant. What do I do? The procedure in Italy complied with all the Strasbourg criteria. So in terms of fundamental rights standards in Italy, it was all impeccable. The constitutional court was expecting some kind of answer that would allow it to either say, I can keep my case law because I protect more, I have a higher standard of protection, and that's good for EU law. But if that's not the case, then I have the excuse to amend my own case law. I believe that there was an expectation in the Constitutional Court that they were going going to get the first answer, that the Court of Justice is going to say, okay, if you protect more, go with that. 

FELIX RONKES AGERBEEK: On the basis of Article 53 of the Charter…

DANIEL SARMIENTO: Which is an incomprehensible provision. I think it's a provision that makes, it's copy-pasted from Article 53 of the Convention, but introducing a primacy clause in the middle, so it doesn't make any sense. So it could have gone either way. But of course, knowing the Court of Justice a little bit, you do need to be very very astute to realise that the court would go down the uniformity path. And that's what the Court did. The Court said, well, this has all been legislated in EU law. I'm sorry, but, you know, you just have to enforce the EAW. So that was the Melloni case. There is a nice story behind the Melloni case that not many people know. The Melloni order for reference was made by a judge called Javier Delgado, who was a very prestigious judge in Spain. He had been President of the Supreme Court. He was a career judge. He was highly recognised, a lovely man as well. And he was the rapporteur of the Melloni case. And I remember someone telling me that at some point, he said: As a judge, I've done everything in my life, but there's just one thing I haven't done, and that's to make a preliminary reference to the Court of Justice. And he did it. So that was an example of what was coming. 

FELIX RONKES AGERBEEK: Yeah, indeed. Already then, you wrote in your article: ‘It can now be said that the Charter has been the source of very significant changes in EU law. It has forced the Union to take fundamental rights even more seriously and has consequently pushed the ECJ in the same direction.’ One of the other arguments that you made in that article is that the Charter will help reduce the risk of constitutional conflict. So that's the risk of conflicts between the Court of Justice and national constitutional courts. How do you think the Charter helps with that? 

DANIEL SARMIENTO: Yeah, I'm a big fan of the Charter as a prevention mechanism of constitutional conflict. 
And this might look counterintuitive because you might say that the Charter is actually the invasive element that steps into national constitutions, et cetera. But I think it's the opposite. 
If you look at constitutional conflict, the cases in which we have had crisis, genuine crisis, they have mostly been about EU competence, in which you will have a national constitutional court saying that the EU is overstepping its jurisdiction, and therefore this decision is not applicable in the state. The Weiss case is the paradigm of constitutional conflict, and it's gone all the way to a declaration of ultra virus. That's a competence issue. It is a bit odd, but that's how it was articulated. So constitutional conflicts, at the time and in the past, and I think in the future, where they really are problematic and we need to find a solution to solve them is on the point of competence control. Now with fundamental rights, actually constitutional conflicts in the field of fundamental rights, they tend to exist because because they kind of brew in the course of time, but they always get resolved. Taricco was an example of that. And I think that the Italian Constitutional Court is a perfect example of how to do constitutional conflict management in the field of fundamental rights. They've done it very, very, very, very well. There you see that you have a very experienced court with many years behind its back, with a lot of experience in dealing with fundamental rights cases. It's a very open-minded court because it's willing to interact with Luxembourg in a much more explicit way than other constitutional courts. So I think the paradigm is the Italian constitutional court. And the way in which they handle fundamental rights conflicts is, let's say, the gold standard. And it shows that the system works, the system operates. So you can have the court making a decision interpreting the charter, and you might have a jurisdiction saying: Houston, we have a problem because this doesn't work here. And that might be the case. They might be right. And in the Taricco-MAS succession, you see how that dialogue takes place, how the Court of Justice is willing indeed to make adjustments, and how eventually the problem gets solved. It gets solved through trial and error. And you might say, well, if we can avoid the error, better. But trial and error, in as much it is inevitable, the law is a social science, is as good as it gets, we're going to have to live with it. It's something as close as a methodology for the solving of constitutional conflict. And I think that in the field of fundamental rights, the use of the Charter can actually help and not the contrary. Because in fact, not having the charter sends exactly the wrong message, that because we don't have a written document of fundamental rights, the national fundamental rights are more relevant or prevailing or whatever. By having the Charter, now you have the EU standard there. 

FELIX RONKES AGERBEEK: Could you maybe say that because the Charter is there and it is the fundamental rights document on the table of the Court of Justice, and everybody can see that, that these constitutional courts that have to do the same, they recognise themselves? They see more of themselves when they look at the Court of Justice. They see that the Court of Justice is entrusted with a similar mission. 

DANIEL SARMIENTO: And they also see themselves because they know that they can convince the Court to interpret those fundamental rights in a way that also allows them to contribute. So they're not just passive actors seeing, oh, what a great job the Court of Justice is doing. No, they're active participants. 

FELIX RONKES AGERBEEK: We talked about constitutional conflict and you mentioned the Weiss judgment. And that brings me to a proposal that you and Joseph Weiler made for a mixed chamber. Could you explain that proposal? 

DANIEL SARMIENTO: The mixed chamber is a proposal that suggests that for situations of conflict in which the Court of Justice has ruled on the attribution of competence, but there still is disagreement on the part of a member state, a mixed chamber composed of members of the Court of Justice and judges of a representative number of national, supreme, and constitutional courts make a final decision on the matter. So that's why it's mixed. But it is a chamber of the Court of Justice of the European Union. So it is a chamber within the institution. So eventually the decision comes from the Court of Justice of the European Union as an EU institution — it’s not a foreign body. But the mixed chamber proposal is mostly for situations of competence conflict. Not for conflict in fundamental rights. And I still think that in the field of competence, we have an issue. And that's not going to be solved pragmatically just by letting things go along. Relying on the Union to be the interpreter of its own competence is something that we have managed quite well. But I don't think that this kind of subtle coexistence in which both sides threaten each other and live in this unstable balance is something that's tenable. So that's where I think that the mixed chamber… it has, of course, many problems. It's not the perfect solution. But I still think that in situations in which tensions arise about EU competence, having a mixed chamber diffuses tensions quite considerably. Critics say, yeah, but a member state can still say that whatever the mixed chamber decides, they're going to declare it ultra virus as well. Yeah, fine. But you have put down the pressure of the pressure cooker. And that is probably as good as it gets. You're going to have to assume that whatever solution, you will still have member states having a final sovereign decision about what is to be applied in their territory. And we're going to have to live with that. But I think the mixed chamber is better to have it in that context than not to have it and keep doing things as we've done it in the past. 

FELIX RONKES AGERBEEK: All right. then the final question as always what are three books that influenced you and that you would recommend to the audience?

DANIEL SARMIENTO: The first book that comes to mind is The Brethren, a book by Bob Woodward, a historic journalist of the Washington Post well known for being part of the great investigative journalism that ended up in the watergate scandal being disclosed etc. And it's a journalistic account of the Burger presidency of the US Supreme Court. It's an outstanding piece of journalism, but it's journalism about courts. So for me, it has always been the gold standard of how to write about the law, not being a lawyer, but explaining how the law works. And if you want a description of how a court works, The Brethren is right there for you.
A second recommendation is maybe not the kind of book you would take to the beach, which is Between Facts and Norms by Jürgen Habermas. And I've read it several times in the course of time. And I must say that it's the book that best portrays what it is to understand the law in a liberal and democratic constitutional state, which is where we live at, at the moment in Europe. 
And it all comes down to an explanation of the tension that exists in the constitutional state which is a tension between democracy and liberalism and that tension is practically everywhere mostly in public law. And the way in which the book looks at that tension in this incredibly holistic way is probably for me the most amazing exercise of intellectual construction that I've ever read. Because it speaks to me and to the world I live in. So it's a book that I very much recommend anyone who deals mostly with public law. 
And the third book is any anthology of the poetic works of Antonio Machado. Antonio Machado is a Spanish poet, probably one of the greatest Spanish poets of all time, who lived in the first half of the 20th century. And he was a liberal man living in a very backward country that was going through lots of changes, but at a time in which horrific things happened all over. And nevertheless, for me, I've been reading Antonio Machado all my life, and I've always been amazed by how contemporary he is to what's happening to me in my time. I have always understood the role of the law as being sensitive to reality. And what I find in the poetic works of Machado is that he is someone who was extremely sensitive to reality. And I think that many of the things I've done throughout my career, which have been outside the bubble, have been as a result of trying to react to what's surrounding me. And I see the poetic works of Machado as an effort in speaking out about the realities around you, but with a very special voice.

FELIX RONKES AGERBEEK: Daniel many thanks for this conversation.

DANIEL SARMIENTO: Thank you, Felix. It’s been a pleasure.