Mediating judicial activism and national restraint: the "double agency" representatives at the Court of Justice of the European Union

Judicialization in the EU is the product of various actors involved in the litigation process. The role of EU judges, national judges through the preliminary ruling procedure, civil society groups and companies, and academia have already been studied as "unseen" but key actors in EU judicial politics. A group of actors that remains understudied is government representatives. These have not been central in the analysis for theoretical and empirical reasons. Government representatives are seen as "firemen" attempting to contain the effects of a likely adverse ruling against their Member State. Their role was not considered as providing a huge input leading to the resolution of cases. Empirically, available material is scarce: the pleas of government representatives are sealed and only indirectly referred to (if at all) by the Court in rulings. Yet the surge of ultra vires rulings and the growing backlash against the CJEU warrants a deeper sociological analysis at the representatives of governments before the Court. These mediate the concerns of governments that increasingly display a willingness to frontally oppose rulings, especially when core state powers such as budget or the rule of law are challenged. This paper attempts at establishing a prosopography of the field of contemporary government agents. It combines CV analysis of the agents who carried out their activities between 2013 and 2023 and interviews with the current representatives of France and Belgium. The results display the multipositionality of agents that must try to convince judges while managing the expectations of their government. Agents are becoming a social group embedded in a transnational corporatist logic largely framed by the CJEU itself. If these are true European legal professionals, there institutional position at mediators is precarious since numerous adverse rulings can (and already have) trigger opposition and/or retaliation from their executive power. In short, these sociological "double agents" are also political tight-rope walkers.