Self-Regulated Governance: The Court of Justice of the European Union

From the perspective of judicial governance, supranational courts are in a rather unique position. Since their mandates are embedded in international treaties, their powers, composition, organization, and functioning are also primarily regulated by the masters of treaties. This makes the institutional setup of international courts very inflexible since significant change of governance would require an amendment of founding treaties or difficult political negotiations among member states with various interest in more or less independent and powerful international jurisdiction actor. Two processes mitigate the difficult rigidity of supranational courts’ governance: the ability to set up their own procedural statutes, and the self-regulation of those areas of governance, that are not explicitly specified in international treaties. In this paper, we look at the Court of Justice of the European Union and its ability to self-regulate its own functioning. Interestingly, even thought the CJEU started adjudicating on many areas of judicial governance in relation to individual member states’ courts, very little attention has been devoted to its own governance and management. While we do have analysis of CJEU’s case-law and requirements on transparency, communication of courts, or mechanisms of judicial accountability, very little (Krenn 2018) is known about the judicial governance at the CJEU level. Some attention has been paid to the selection of judges (Bobek 2015, Hermansen and Naurin 2023, Naurin and Voeten 2023), but other areas of governance, such as disciplining, removal of judges, ethical norms, or case-management, are largely missing. Some studies hint at overarching influence of individual chief justices, but so far, we miss a more systematic analysis. The aim of this paper is twofold. First, building on the analytical framework for studying judicial governance (Kosař 2018), we identify both the governance dimensions in which the EU member states decided to regulate the CJEU through the EU primary law and dimensions in which the CJEU has a greater say. Second, we assess the CJEU's self-regulatory practice. Building on analysis of elite interviews, we analyse who gains the most influence through the self-regulation process and which governance arenas the CJEU uses most to make its decision-making more effective.