That's and Order!

The Court of Justice of the European Union (CJEU) published more than 1000 judgments in 2019. Many of these judgments were discussed and debated by scholars and in the media. In the same year, the CJEU also published more than 700 orders, which largely went under the radar of outside audiences. So far, there has been almost no scholarly attention to these alternative types of decisions that the CJEU and many other courts make. The paper serves a twofold purpose. First, it maps the orders issued by the Court of Justice into a typology of procedural and substantive orders, providing researchers who want to study the orders of the court a framework to understand the functions and prevalence of different types of Court orders. After presenting this general framework it continues to discuss some developments in the use of orders over time, showing some clear breaking points in the history of the CJEU. Second, it takes a closer look at adjudicating orders, which have increased steadily in the last 20 years and which are substantively the most important types of orders. Adjudicating orders serve the same purpose as judgments, but are issued when the Court claims that the questions posed (1) are identical to a question on which the Court has already ruled, (2) can be replied to by conclusions clearly deduced from existing case-law, or (3) admits no reasonable doubt in terms of the answer. While providing a simplified procedure, these orders provide judgments on the merits of a case and share only their title with the traditional procedural orders of the Court. The nature of adjudicating orders as quasi-judgments raises numerous questions. Which factors explain why the Court chooses to adjudicate by order rather than by judgment? We explore which types of questions for preliminary rulings are likely to end in an adjudicating order rather than a judgment, how this fits the official narrative of adjudicating orders as a means to make court procedures more efficient, and what their implications are for judicial dialogue between the Court of Justice and national courts. It studies these questions using a mix of traditional legal analysis and quantitative studies of original data of thousands of Court decisions, including automated text analysis. Preliminary findings indicate that the use of adjudicating orders have been a contributing factor to the court reducing its average procedure time in the last decades. However, adjudicating orders might also negatively affect judicial dialogue: There are indications that national judges will see responses by adjudicating orders as a humiliation, and a signal that their question was not welcomed by the Court of Justice. Furthermore, the option not to hear the parties to the procedure poses important questions for judicial legitimacy.