Spain will have, as of October 6 -when it takes office- a new legal representative in the highest judicial body in Europe, the Court of Justice of the European Union (CJEU), after 18 years. It will be Lourdes Arastey, magistrate of the Social Chamber of the Supreme Court, who will replace Rosario Silva placeholder image, who has been in the position since 2003. Silva informed the Government that he did not want to renew the position and allowed Arastey to make history, as she will be the first to occupy the elected position after a merit selection process and not ‘to finger’.
Answer. Each Member State has a judge in the CJEU and I I will be the third Spanish, but it is true that it is the first time that the position will be filled by someone who comes from the judicial career. Rosario Silva, the first woman, is a State lawyer and Juan Carlos Rodríguez Iglesias came from the academic world. I feel very proud, is to follow my natural function: the jurisdictional one.
R. My specialization is social, it is where I have been for many years, and it is a very important subject in the field of Union law. It has a very relevant weight and yet, if I am not mistaken, social specialists throughout the history of the CJEU have only been Giuseppe Federico Mancini, Italian. I believe that I will be the second and that can be my contribution because there is a great field of action.
A. The CJEU is a court. Policy is made by the Commission, Parliament or Council … and the Union’s political path is set by the members. Of course, it is true that the pandemic must have increased it, because being social is an almost ethical moral requirement of the EU and the duty of the court is to interpret the legislation and maintain the principles of the European treaties, which have enormous social content.
R. We must see what we mean by applying them and we must bear in mind that the judgments of the CJEU, which are answers to questions from national judges, they do not solve the case. It is neither its purpose nor its objective. Sometimes we see it in a national key, but what the court does is answer questions to the judge, who is the one who will resolve the matter by interpreting what is marked. The application, therefore, is not mathematical. It seems more important to me to think that these sentences totally transform the reality of citizens. Another thing is that we criticize later if they have been applied well or not, because in law things are not so easy.
A. Here we all accuse each other. First, I think that the CGPJ should not be confused with the judges. The governing body is not the judges and I believe that the judges do not make politics, I don’t know if the CGPJ may be doing it. But, well, there is a problem of institutional respect that should set everyone off the alarm that the institutions do not work. Having said that, I would like to make it clear that the Judicial Power is each and every one of the judges and the Council is not the judiciary. That dividing line has to be seen by citizens.
A. It is your decision. I am not going to comment on the Council. I believe that each institution should have its own framework: the CGPJ has designed its function and its function is not to do politics, its function is the government of the judges in their statutory aspects. Of course, it must also be said that those who do have to do politics are obliged to renew the institutions. Let each stick hold its candle.
R. It is indeed a democratic anomaly. Democracy consists of the debate between parties that have different ideas, but it does not make sense that this transforms in that the institutions do not work. Democracy sits in that game of discrepancy, but also in the construction of solid institutions. That they keep disagreeing and the other leg erodes is a risk for everyone.
A. When they played that phrase, they didn’t get the second part. We don’t need more laws but put them into practice, I said. What more laws are we going to do if the statement is absolute and what is the use if we do not put it into practice. Article 14 of the Spanish Constitution is resounding. What you have to do is put it into practice and do not live from denialism in certain respects.
R. You do not find difficulties while your career is regulated, because it works by seniority and there are no discretionary elements. When there are discretionary elements, and it happens across the board, see how many women are on the boards of directors of large law firms, is where it is shown that in a profession where the majority are women, the leadership not only does not follow that proportion, but also gives totally incongruous and remote parameters. There we do not need any regulatory changebut apply perspective. The same goes for the pay gap. A society in which this happens has to be, at the very least, conscious.
R. It is a cultural problem and education is needed. As an example, the pandemic. The Covid has highlighted to us what teleworking is and I have seen how from legal fields that speak of equality affirm that teleworking is fantastic for women because that way they can reconcile better. It’s a foot shot. Why should women reconcile? It turns out that teleworking, and there are many studies to prove it, is proving contrary to equal opportunities for women. It is a matter of roles, cultural and historical. So if we don’t put perspective and change that look, it will continue to happen. The law must be read effectively in equality and there are many lawyers who deny this.