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Decision-Making and Structural Changes in the European Court of Justice after the two Eastern Enlargements

Tomas Dumbrovsky
Charles University
Tomas Dumbrovsky
Charles University
Open Panel

Abstract

This paper inquires into the process of adaptation that the European Court of Justice (ECJ) is undergoing as a result of the Eastern Enlargement. The topic is divided into three main parts, with the first to focus on the challange that the Court faces in handling an increased caseload; the second part touches upon the difficult and highly under researched question of new Member States’ (MS) strategies in the appointment of judges to the ECJ while the third one explores the reasons behind the relative decision-making power of these judges vis-à-vis judges form the old MS. The methods used are both qualitative and quantitative, underpinned by expert interviews with EU law practitioners that have worked or currently work at the ECJ. Are conscious attempts to streamline the procedure applied by the President of the Court jeopardising the delivery of well-thought and contextualised judgements? Further, is the lack of a unified appointment procedure required by EU law resulting in opaque and fragmented national appointment procedures? The only valuable study on this problem so far was conducted by Sally Kenney in the late 1990’s (Kenney, 1998) and has not been updated since. We look into the newly established under art.255 of the Lisbon Treaty expert panel to give opinion on the nominated by national governments candidates for judges and Advocate-Generals in order to see what are the issues that the panel tries to tackle. Importantly, the way the changing composition of the ECJ reflects the decision-making style of the Court is something that is largely speculated about in EU legal circles, though it has not systematically been analysed yet. While the authoritative position in the EU institutional set-up that the ECJ has secured early on for itself gives the impression of a unified voice, one has to keep in mind that 27 different voices coming from 27 different legal cultures have to be synchronised now in order to set the (right?) common tone. We ask to what extent the new judges coming from backgrounds, distinct from the western legal systems have been incorporated in the Court. How, if at all, do the overall formal and informal structural changes of the Court impact on the sustance of its case-law? The first findings show that the dramatic shortening in the length of the proceedings at the ECJ with 6 months can be explained not only by the proportionally less actions for infringements but is also due to the emphasis given on increasing efficiency. We expect this development to be short-lived and question its repercussion for the quality of the judgements. The recent creation of a European expert panel with vetting functions, although promoted as a remedy for the lack of accountability in judicial appointments, might be there to actually strengthen expertise checks on the judges while the panel‘s own accountability and transparency look compromised by the secrecy of its deliberations. The underrepresentaion at the Court’s leadership positions of new MS judges does not seem however to be provoked by divergencies in expertise.