The Effect of Political Preferences among CJEU Judges and their Appointing Governments

The Court of Justice of the European Union (CJEU) is often described as one of the world's most successful courts in terms of establishing independence from politics in general and the preferences of state governments in particular. As there are no dissenting votes on the panels of the CJEU, theory predicts that there is neither an effective way for governments of tracking how individual judges vote, nor of sanctioning behaviour they dislike. In this paper we set out to test whether this presumed independence exists, by comparing the preferences of the state governments to the behaviour of individual judges, in various ways. Our underlying motivation is the fact that there has not been much empirical research done to substantiate the claim that individual CJEU judges are insulated from political pressures from their home governments (Malecki 2010). Moreover, while the lack of dissenting votes might theoretically shield the judges from politicians, other factors are expected to work in the opposite direction, i.e. expose them to political pressures. The judges of the CJEU have renewable terms of office; they sit in changing panel-constellations; and the governments of the EU have wide discretion in selecting a judge from their own member state. Moreover, some highly influential actors in the court (the Advocates General) do speak with an individual voice, and should hence be expected to be even more susceptible to political sanctions. Finally, even on a court where it is hard for politicians to monitor and sanction judge behaviour ex post, politicians might still influence the court if they successfully appoint judges that reflect their own preferences and ideologies. The case for the insulation of CJEU-judges from political pressures and influences might thus not be as clear-cut as is often held. In this paper, we therefore aim to investigate if there is any interesting variation in the behaviour of individual judges, and to what degree this can be explained by factors relating to political influences. We use a dataset on all preliminary rulings lodged in front of the Court between 1997 and 2008, including among other things variables denoting to what degree a court decision, as well as the observations of the Commission and EU governments, reflects a preference for or against EU legal integration. This variable is one of our key assets as compared to earlier similar research (Malecki 2012), which compared other actors’ positions to that of the Commission. We combine this dataset with one containing biographical information on the individual judges and advocates general of the Court, as well as information on the appointing governments. Our goal is to analyse to what degree variations in judge behaviour can be explained by factors such the government that appointed the judge in question (whether it is a left/right-wing government; new/old member state, etc.), the preference of the current government of the state in question, and the governments of the EU as a whole. We also aim to investigate whether the observed behaviour of the judges affect their chances of reappointment or not.