Robert J. Gaudet, Jr. & Judge Koen Lenaerts

On Saturday, June 16, 2012, Judge Koen Lenaerts of the European Court of Justice gave an inspiring talk to a crowd of Fulbright alumni who gathered in honor of Margaret (“Maggie”) Nicholson, the retiring director of the Fulbright Commission of Belgium.  In his remarks, Judge Lenaerts reflected on his own study of law in the United States for a year with the support of a Fulbright grant.

Judge Lenaerts said, “I started out in 1977 … comparing the EU evolving community with the United States legal system” with reference to a “supra-national system.”  He studied constitutional law with Prof. Laurence Tribe where he learned about federalism, a concept about how the United States legal system functions at two levels, one for the States and a separate level for the Federal government.  Judge Lenaerts’s studies were supported by a Fulbright grant. However, to get the grant, he first needed to submit a proposal to the Fulbright commission.

The young Mr. Lenaerts drew up a proposal and discussed it with members of the Fulbright Commission of Belgium who he now described, over 30 years later, as a “skeptical jury asking me questions.”  He was told by one member commenting on his proposal that “it’s probably unrealistic but he’s only 22 and who else is doing out-of-the-box thinking.”  The funding was granted and Mr. Lenaert’s out-of-the-box thinking and study of U.S. federalism has contributed to the development of the E.U.’s own unique structure of supra-nationalism in a framework that respects the sovereignty of Member States while creating a supra-national E.U. framework of mandatory rules.

Judge Lenaerts noted that, in the 1970s, comparative legal research was difficult. He had argued in his doctoral dissertation that comparative research was feasible and helpful.  Many professionals now agree.  Judge Lenaerts remarked in his talk, “we now have – thought it might not bear the name – a Constitution for the European Union.”  He noted that every national rule, to be valid, must now comply with a set of rules under E.U. law.  “I learned this in Prof. Tribe’s class” in the United States, Judge Lenaerts noted.

Some of Judge Lenaerts’s remarks then veered in a different direction and spoke more about the unique characteristics of the European Union which distinguish it from the United States.  He said, for example, “a United States of Europe will never exist.”  Some audience members wondered whether this was true since a more cohesive European Union seems possible, especially for younger generations that have grown up with more firmly entrenched E.U. rights such as E.U. citizenship.

Judge Lenaerts suggested that, even if the two legal systems are different, comparative study helps you to better understand your own system.  “I use concepts of American law in my daily practice as a judge,” Judge Lenaerts noted. His frank statement was refreshing.  United States jurists might take notice, especially since U.S. Supreme Court justices have been criticized for citing foreign legal decisions in a small number of recent opinions.

To illustrate the differences between the E.U. and U.S. legal systems, Judge Lenaerts described the role of religion in the U.S. legal structure.  He noted, “Europe will never be one nation indivisible under God, certainly not under God.”  He was making a reference to the Pledge of Allegiance in U.S. schools.  The remark was somewhat puzzling given that many European Member States have official state religions, e.g., the Lutheran church is the official state religion of Sweden whereas the United States bars the establishment of any religion and U.S. government endorsement of religion is limited to de minimis trappings such as the Pledge of Allegiance.

Judge Lenaerts’s experience as a law student in the United States taught him about the First Amendment of the U.S. Constitution and the Establishment Clause prohibiting the establishment of any official religion, which he described to Fulbright alumni in attendance.  Judge Lenaerts noted, however, that at a session of the U.S. Supreme Court that he once attended a “janitor opened the door and cried out, ‘God bless the United States of America, this honorable Court.’”  The man who makes the statement is not actually a janitor although he does work for the Court.  He also says, “oyez, oyez.”  Although Judge Lenaerts did not say so, these minor trappings are a far cry from the establishment of religion that exists in some European Member States.

To Judge Lenaerts and his colleagues, this symbolic announcement at the opening of the Supreme Court was astonishing.  He said that one member of his delegation “was absolutely shocked.”  Judge Lenaerts noted that a 1925 decision of the U.S. Supreme Court, Pierce v. Society of Sisters, 268 U.S. 510 (1925), held that it was not a violation of the Establishment Clause for public authorities, i.e., the fire department to enter a Lutheran school if it was on fire.

Contrary to the creed of civil religion in the United States, Judge Lenaerts noted that the “EU is not one nation indivisible.”  “To begin with, it is not a nation.”  He noted that the concept of “nation” is “suspect” after the fighting in two World Wars.  The EU, he noted, was a structure that allows Europeans to keep their own identities but otherwise work in common.  The EU provides, he said, a “common space without borders” and an “internal market” with free movement of goods, services, and capital.  There are also convergence criteria for the financial budgets.  This assures there are no excessive deficits or national debts.

Drawing perhaps on his years of study of comparative law, Judge Lenaerts noted that the free movement of capital, services, and goods is “very common, that part, with the Commerce Clause of the United States Constitution.”  He said it is a matter of “federalism”, to use a concept from American law, how different local entities, i.e., nations, interact with the whole, i.e., the European Union.  To appreciate this interaction, Judge Lenaerts said it is “critical to study the U.S. model.”

Judge Lenaerts concluded that the Fulbright program improves comparative understanding.  Judge Lenaerts also made very gracious remarks about Mrs. Nicholson in whose honor the event was organized.  After remarks made by Judge Lenaerts; Mr. De Croo, the Belgium Minister of State; and Prof. Meunier of EORTC, there was a fantastic piano performance of Bach, Gershwin, and other composers by a Fulbright alumnus; and then a reception. The event took place at the majestic Paleis des Académies in Brussels, next door to the Belgium Royal Palace.

Fulbright alumni from 5 or 6 different decades were in attendance including Robert J. Gaudet, Jr. of RJ Gaudet & Associates LLC; Jodie Kirshner, Lecturer at Cambridge University Faculty of Law; and Maud Piers, Lecturer in the University of Ghent Faculty of Law.