Institutional constraints and collegiality at the Court of Justice of the European Union

1. Introduction

One scholar, Ditlev Tamm, recently asked ‘to whom does the Court belong?’; in swiftly answering that question, he remarked that the Court of Justice of the European Union (‘the Court’, as a judicial body) ¹ was not to be linked with any one country or any other tangible unit, but rather to an abstract idea of Europe. ² It was suggested that the Court essentially belongs to the European citizens, even if access to the Court is restricted only through preliminary references from domestic courts. Justice must naturally be administered ‘in the name of the people’. Yet any appraisal of the Court’s sense of belonging – another term, we believe, for discussing the Court’s legitimacy – must acknowledge the relevance of the institutional constraints that are placed upon the Court’s institutional constraints upon its capacities. From that perspective, the Court’s institutional design and processes surrounding judicial appointments paint a less idealistic picture, where Member States traditionally retain some discretionary links with the Court on judicial appointments. In this article, we therefore seek to illustrate the ways in which the judicial selection, appointment and renewal processes deeply constrain and influence decision-making processes, including the style of many judgements.

Our argument will proceed as follows. The Court has been established as a sui generis supranational court; it is neither an international court nor a domestic supreme or constitutional court, though it possesses functions similar to those. We start with a brief account of the institutional guarantees and mechanisms shaping the independence of the judge at the CJEU (Section 2). We will then examine the Member States’ stronghold on selection for appointments to the Court (Section 3). Redolent of international courts, the current selection and appointment process fall short of subscribing to a specific vision of the ‘bon juge européen’, beyond the requirement that those appointed should be independent and have the qualifications necessary for selection to the highest judicial offices in their respective countries or be jurists of recognized competence. The influence of the Member States on issues such as the possible specialization of judges or gender diversity is immense.

The core guarantees of judicial independence are in place but they are silent on whether or how Member States renew the short tenure of their individual judge or Advocate General. While members of the CJEU are generally renewed in their post, this is far from certain and taken altogether, the short judicial tenure, the partial replacement of judges every three years and the discretionary power of Member States to renew the mandate of their national judge are a source of major discomfort: they undermine the principle of independence in judicial appointments and are a source of instability in the daily workings of the Court (Section 4).

However, within the precinct of the CJEU itself, the Court strives to safeguard and develop impartiality, and we argue that the principle of collegiality in judicial decision-making allows the Court’s culture of independence to grow in an organic fashion (Section 5). Judges are careful not to rely on references to their own legal culture in their decision-making process, and not just within the judgment. Collegiality, as a constitutive value, is a safeguard of independence as much as it facilitates the development of a common discourse within which individual decisions are made. We conclude that against this background, the development of legal principles is no worse than can reasonably be expected; that the judges display considerable independence notwithstanding the CJEU’s constraints. Judicial reform with more ambition is therefore needed for the Court to claim a sense of belonging to the European people rather than to their nations.

2. Institutional guarantees of judicial independence

Judicial legitimacy commonly refers to the acceptance of a court’s impartiality and competence by the parties, society at large and, in the context of the Court of Justice, domestic jurisdictions. This acceptance arises on the basis of various factors, such as the selection of judges, their independence and the reasoning behind the CJEU’s judgments. As way of introducing some background to our analysis, we will now consider the protection given to judicial independence.

The personal independence of the judges at the CJEU is guaranteed by their immunity from legal proceedings, by their irremovability from office, apart from normal replacement, and by having their right to salary and pension protected by virtue of the Consolidated Statute of the CJEU, which is annexed to the Treaties. ³ Those protections are not absolute but derogations therefrom are cumbersome ⁴ and are only likely to be effective when a judge misconducts himself or herself quite blatantly in a way which is not directly connected to the merits of his or her judicial decisions - and hitherto this has never taken place. Guarantees are thus in place to ensure the imperviousness of the CJEU judges to external intervention or pressure from other European institutions in the exercise of their judicial office. ⁵

While dismissal is practically impossible, it may be possible to side-line some judges (and promote others) by allocating the most sensitive cases to certain judges at the expense of others. Whilst the practice of assignment differs between the Court of Justice and the General Court, some mechanisms act as basic safeguards against possible internal abuses of power, in the shape of case assignment being considered at the regular General Meeting of the Court of Justice and in the form of a published rota between judges at the General Court. ⁶ As elsewhere, the distinction between an administrative action and a purely adjudicative action may at times be blurred, particularly regarding the increased managerial responsibilities upon judges pertaining to caseload and case assignment. For present purposes, it is sufficient to note that a European Parliament resolution of 29 April 2015 recommended reorganizing the institution ‘in such a way as to make a clearer separation between legal and administrative functions’. ⁷ Although this statement is rather modest, it refers to matters of judicial governance and leadership surrounding the organization of the judiciary, which in turn influences its susceptibility to external influences. Such matters include the drive for efficiency and economy common to all European institutions: the CJEU has had to do more with less, with substantial gains in productivity notwithstanding continuing growth in the number of new cases being referred thereto. ⁸ However, while saving resources is ‘the constant preoccupation of the Court’, the CJEU has recently stated that limits in gains of productivity have been reached, creating an ‘immense challenge for all the support services, notably the languages services’. ⁹ For the sake of judicial independence, then, the aggregate work of the CJEU requires vigilance in the daily interactions between administrative and judicial actions.

3. The Member States’ stronghold on judicial selection

The process of selection and appointment to the CJEU is naturally instrumental in shaping the capacities and the legitimacy of the Institution. The most influential requirement is that of having one judge per Member State, as set out in Article 19(2) TEU. The number of judges at the Court of Justice can only be increased or decreased by virtue of a Treaty revision procedure in accordance with Article 281 TFEU. By way of comparison, the General Court shall include ‘at least’ one judge per Member State under Article 19(2) TEU, and the Statute of the CJEU, which determines the exact number of judges at the General Court, can be more easily amended under Articles 254 and 281 TFEU. This explains the focus, in recent years, on amending the number of General Court members rather than focusing on the number of Court of Justice members. In both cases, a considerable political concession is made in that every Member State must have one judge, and it has great discretion in deciding whom to nominate for that post. In light of this, it is possible to derive some basic features of the European judge.

4. Fixed tenure, periodic renewal and judicial reform

The main source of Member States’ influence and constraint upon the CJEU, however, lies in the length of judicial tenure (six years) and the possibility of unlimited re-nomination by one’s Member State and re-appointment. The possibility of renewing the appointment of a sitting judge, as with any judicial appointment system, carries the suspicion that this could compromise the judges’ actual or perceived independence, by ‘throwing candidates for re-appointment at the mercy of their national (…) Government during their terms of office’. ²⁴ The single-voice judgment style adopted by the CJEU at the very least ensures that governments do not know the opinions of their national judge, thereby diminishing the probability that a judge’s tenure will not be renewed on the basis of his or her known judicial contributions. There cannot be any temptation to ‘write an opinion to the outside world’ as may be the case at the International Court of Justice when seeking the support of states for re-election. ²⁵ Although the CJEU judges are generally renewed in their seat, the subject of their renewal seems today to be the ‘unfinished, and almost unstarted, business’ that judicial selection was once perceived to be, before the Lisbon Treaty introduced a scrutiny panel for judicial selection under Article 255 TFEU. ²⁶ The possibility of renewal is a matter of discretion left to the relevant Member State and it seems that a Member State’s pending decision on renewal will not be openly discussed at the CJEU. Equally problematic with any limited term of judicial office in any court, is the potential dependence of the sitting judge on his or her state for a post-bench career, especially when younger judges are appointed. ²⁷

Some may still argue that the Member States’ power to nominate their current judge for another term of office similarly ensures some checks upon judges. While judicial accountability is required as a matter of principle, it is difficult to perceive of the Member States’ discretionary power of renewal as a legitimate or appropriate means of accountability in the context of the CJEU. In any event, as noted above, the existence of a collegiate judgment prevents the Member State from becoming aware of its judge’s contribution in the conduct of the judicial business. It could then be objected that in such case judges have nothing to fear from the national renewal process. However, there is a lack of a transparent process and criteria for renewal at the CJEU in many Member States; non-renewal may also take place for reasons which have little to do with the judge’s professional merit, and more to do with some internal ‘political haggling’, as suggested above by Sir Konrad Schieman (Section 3.A). Judicial accountability is therefore not the issue here.

The full impact of the relatively short period of service at the CJEU becomes salient as soon as one mentions the permanent triennial renewal at the CJEU, which concerns one half of the number of the judges. ²⁸ Adding to this, it follows from some early departures that some judges will be appointed outside the normal triennial renewal. Franklin Dehousse suggested that the transfer of a judge from the General Court to the Court of Justice represented a damaging movement, because that judge will generally leave with his/her whole team of legal secretaries: ‘[s]o, permanently, new people enter and begin to build a basic knowledge while others leave with their built knowledge to use it elsewhere’. ²⁹ For budgetary purposes, the CJEU estimates the probability of Members leaving office or having their term of office renewed and, interestingly, but for budgetary purposes only, it seems to assume that only half of the Members whose term of office comes to expire will be renewed. ³⁰ Thus, in October 2015, the terms of office of 18 judges at the CJEU expired and the budget of the CJEU assumed that nine of those would leave office or would not see their office renewed ‘with the addition, for the sake of prudence, of four, not anticipated, departures (two at the Court and two at the General Court, based on the average in past years)’. ³¹

Those current rules engender great problems for the CJEU, not least in terms of how they manage their case-load. Advocate General Sharpston stated in 2011 that ‘in order to ensure that judicial business is handled without interruption, it is important to know who is being renewed and who is likely to be replaced’, but, ‘Member States do not always communicate this information to the Court until rather late in the day’. ³²

As in many European countries, there is a principle of continuity, that establishes that the same judge should stay with the case. ³³ Balancing the case load takes the form of allocating cases to the judge available rather than weighting the case as can be done in some countries. ³⁴ It seems difficult to fairly spread the weight of the caseload between judges if one does not know who will be remaining at the Court of Justice or General Court, who is about to leave and who, or how experienced, the newcomer will be. It also seems difficult to make good use of the experience accumulated by judges. In that respect, the instability at the General Court has been repeatedly emphasized. An often-cited illustration of the regular transfer of heavy cases between cabinets and the reopening of those cases is exemplified in the case of ICI v. European Commission in which the appeal was lodged on 20 March 2001 and judgment was handed down on 25 June 2010. ³⁵ This case was twice reallocated between judges and three times between chambers. Not only does uncertainty affect the individual judge, it also has a direct effect on those cases assigned to the other members of the Chamber, of which those judges are members. ³⁶

One can cast doubt over whether doubling the number of judges at the General Court, as decided by Regulation No. 2015/2422, will fully assuage this issue. The root of the instability is the inability of Member States to consider the extension of the term of judicial office (for example from six to nine or 12 years) and the concomitant conditions that the appointment be non-renewable, with no requirement to renew half of the CJEU’s membership every three years. One single, non-renewable, term would lift the perceived threat to the individual judge’s independence as has been described above. It would unlock the potential of, or remove some of the objections to other proposed reforms. For example, a more expansive judicial discourse may become possible, including anonymous dissenting opinions (as is possible in the context of the WTO appellate body). ³⁷ The issue of specialized Chambers or judges might then become less politically-charged. ³⁸

Further to this, the extension of the judges’ term of office to nine years, for example, without a three-year interval to appoint part of the CJEU, would establish stability within the Court of Justice. This is what happened at the European Court of Human Rights when, precisely in order to maintain continuity and reinforce that court’s independence and impartiality, ³⁹ a single, non-renewable term of office (nine years) was introduced in 2010, in combination with the abolition of the system whereby large groups of judges were renewed at three-year intervals. Similar reforms at the CJEU would radically alter and - we suggest - clarify the sense of belonging of the Court of Justice to the benefit of the European polis, beyond the national governments’ stronghold.

This would naturally trigger fresh issues of judicial accountability. While this topic is outside the remit of this article, we note the proposal to make the CJEU more accountable to domestic judges by involving the latter in matters of judicial governance of the CJEU, for example in the form of some High Council of the European Judiciary that would inter alia give opinions on the suitability of the judges proposed by Member States and approve the rules of procedures of the two jurisdictions. ⁴⁰

In the absence of a longer but single and non-renewable term of office, judges are ‘the least stable component of the whole system’ compared with legal secretaries and the registry’. ⁴¹ If, as has been said, the Treaty revision that is required for judicial reform is truly impossible, a working agreement remains nevertheless possible, to the extent that Member States should begin any selection process with a perspective of two terms of office instead of one. At the very least, agreement from the Member States should be sought to allow the judges who are not renewed or retire to continue with their assigned cases, perhaps for a fixed period of time, as is the case in some international courts. ⁴² This would provide what the Court of Justice on behalf of the CJEU has been looking for: an even firmer basis for the independence of the CJEU’s members; it would also aid in strengthening the continuity of its caselaw. ⁴³

So the influence of Member States in appointments, including the renewal thereof, is substantial. They have differing conceptions of judicial merit, and have little incentive to think about the impact of their preferred candidate on the CJEU as a whole, for example, in terms of expertise. There is not even a guarantee that their preferred candidates will be fluent in English or French (a matter of continued discussion). One may infer as a consequence of the fact that a number of judgments have been so intensely negotiated, that they are difficult to decipher and for domestic judges to follow.

5. The practice of collegiality

We have so far considered the pressures on the CJEU. Judges bring different understandings of merit and of their role to the CJEU, and they all too often have too little time to settle down at the CJEU and discover their own voice. But the Court of Justice does what it can to ensure that judges are equally assimilated in the workings of the court and this is achieved with the constitutive value of collegiality. Collegiality also acts as a positive mechanism to enhance judicial impartiality.

6. Conclusions

This article has demonstrated how the judicial selection, appointment and renewal processes deeply constrain and influence decision making processes at the Court of Justice. It is often said that the creation of the Court was only hesitantly accepted, ⁶³ but this falls short of a justification for the damaging impact caused by a short tenure period combined with the permanent triennial renewal of sitting judges at the CJEU.

We have argued, first, that those institutional constraints constitute a fundamental source of instability at the Court of Justice and, second, that the discretion left to Member States for renewal is a concern for the principle of judicial independence. Some may suggest that the instability is more pronounced at the General Court than at the Court of Justice and that in practice, in many cases, judges and Advocate Generals are re-appointed. This would however miss the point that the CJEU, as a whole, needs long-term stability to properly function and with more persuasive authority. Further, the ‘overall’ benevolent use in practice of the Member States’ discretionary power to renew an appointment at the Court of Justice does not in itself guarantee an independent process of renewal. In responding to those issues, Treaty revision towards one single judicial mandate would be our preferred remedy but it is unlikely to happen in practice. So our first recommendation, considering the need for stability and greater independence, has been that Member States should expressly begin any appointment process in the General Court with a perspective of two terms of office mandates.

More broadly, this article examined the current stronghold of Member States on the judicial selection process. Unlike other international courts, the Court of Justice’s primary interlocutors are domestic jurisdictions, and we have suggested putting a greater emphasis on judicial experience of any kind from nominated candidates or encouraging domestic judges to act as legal secretaries in order to address the concern that the Court’s rulings must hit the ground running. If this is not possible, then consensus from Member States should be sought to allow the judges who are not renewed or who retire to continue with their assigned cases, perhaps for fixed period of time, as is the case in some international courts.

Above all, greater scrutiny of the Member States’ traditions and expectations in relation to judicial appointments can only help towards what might be, for the long term perspective, a truly integrated European judiciary. Thus the panel can and should ask Member States who repeatedly nominate male judges about judicial diversity statistics and any practices that may be under way to improve the ratios of women and other similar under-represented groups.

Against all institutional constraints considered in this article, the principle of collegiality can be seen as an internal reaction within the Court to ensure independence in case allocation, impartiality in difficult cases, and as a means towards a jurisprudence that is not too closely based on the legal culture or traditions of any one particular Member State. But this latter concern does mean that some judgments will appear to be compromises, and more radical reform will be needed to assuage those who hanker after clearer and bolder decisions. The proposals outlined in this article, taken together, would likely cause a change of culture at the Court of Justice. Collegiality should still apply, but the style of judgments should itself start to become more open and an increase of the reach of those judgments within domestic jurisdictions should follow. More ambitious judicial reforms can only succeed by taking into account a single, non-renewable term of office, without any triennial renewal of CJEU membership. Only then we can hope for an unequivocal answer to our initial interrogation about the Court of Justice’s belonging.