The Prospects and Perils of US–EU Comparative Constitutional Law: An Interview with President of the Court of Justice of the European Union Koen Lenaerts

In EU constitutional law scholarship, comparisons with US constitutional law have been both a major intergenerational topic of interest and a significant blind spot. On the one hand, similarities and differences in constitutional DNA and federal architecture have been analyzed by multiple generations of scholars over the past four decades. Less attention, however, has been given to other avenues for EU–US comparative constitutional analysis, such as the modalities of negative market integration, the procedural law governing “federal” (more accurately “supranational” in the EU context) courts, or even the development of constitutional principles over time.

In this interview, Koen Lenaerts, the current President of the Court of Justice of the European Union (Court of Justice or the Court), and I discussed the prospects and perils of US–EU comparative constitutional law. President Lenaerts studied Law at the Catholic University of Leuven in Belgium, before continuing his studies at Harvard University, where he obtained an LL.M. degree in 1978 and a Master in Public Administration in 1979. He became a Doctor of Laws in 1982 at the Catholic University of Leuven, and in 1983 a Professor of Law at the same university. He was a Visiting Professor at Harvard Law School in 1989. President Lenaerts clerked for Judge René Joliet at the Court of Justice between 1984 and 1985 and served as a Judge at the Court of First Instance of the European Communities (which was renamed the General Court of the European Union (GCEU) in 2009) between 1989 and 2003. In 2003, President Lenaerts was appointed Judge at the Court of Justice, where he was elected Vice President in 2012 and President in 2015.

President Lenaerts and I discussed a range of topics that are or have been central to comparisons between the European Union and its constitutional structure, and the US Constitution and the federal architecture based upon it. The topics of this conversation–while by no means exhaustive–cover both classic questions such as the supremacy of EU and US federal law, the equality of the States and the role of apex courts in “federal” or “common” legal orders, and relatively less explored issues such as federal common law, EU and US internal market law, and the political question doctrine.

The aim of this conversation, as it reflects on both “old” and “new” questions, is to provide new pathways and ideas for EU–US comparative constitutional law scholarship. While there are many profound differences between the constitutional structures of the EU and the US respectively, there are also important similarities, both historically and today. The common presumption behind this conversation is that both these similarities and these differences continue to be worthy of systematic and robust comparative analysis.