How do institutional constraints affect judicial decision-making? The European Court of Justice’s French language mandate
| Date | 01 December 2019 |
| Author | Sivaram Cheruvu |
| Published date | 01 December 2019 |
| DOI | 10.1177/1465116519859428 |
| Subject Matter | Articles |
Article
European Union Politics
How do institutional
2019, Vol. 20(4) 562–583
! The Author(s) 2019
constraints affect judicial
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DOI: 10.1177/1465116519859428
decision-making? The
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European Court of
Justice’s French
language mandate
Sivaram Cheruvu
Department of Political Science, Emory University,
Atlanta, USA
Abstract
Under what conditions do the institutional features of courts affect the efficiency of
judicial decision-making? Examining the Court of Justice of the European Union’s man-
date that all judgments be written in French, I argue that francophone judges—i.e.
judges from France, French-speaking Belgium, and Luxembourg—write judgments
more efficiently than their non-francophone counterparts. Leveraging the institutional
feature of the judge-rapporteur and using matching methods, I show that comparable
cases with a francophone judge-rapporteur are a month shorter on average than cases
with a non-francophone judge-rapporteur. This estimate is robust to scaling the judg-
ments by their word counts. Although I provide evidence francophones write judg-
ments with lower lexical diversity on average than non-francophones, existing empirical
measures are limited in examining differences in judgment quality. These findings have
implications for the efficient processing of cases at the Court of Justice and the poten-
tial consequences of adopting a lingua franca in the European Union.
Keywords
European Court of Justice, French language, judicial decision-making
Corresponding author:
Sivaram Cheruvu, Department of Political Science, Emory University, 1555 Dickey Drive, Atlanta, Georgia
30322, USA.
Email: sivaram.cheruvu@emory.edu
Cheruvu
563
Introduction
What institutional features affect some judges over others? How do these features
affect a court’s efficiency and outputs? Judges should be equally equipped to
adjudicate the legal questions coming before them, and institutional barriers
preventing effective judging should not exist. In practice, whether courts achieve
these ideals is an open question.
Scholars are concerned about the motivations and constraints on judges in their
job performance. Judges, like workers in other industries, balance career concerns,
reputation concerns, salary, and leisure among other variables (e.g. Clark et al.,
2019; Epstein et al., 2013; Ramseyer and Rasmusen, 2003). Judges often weigh
these factors against their caseload. As caseload pressures increase, a judge’s time
is more constrained, and she is compelled to strategically allocate her time among
the cases she is assigned to adjudicate. Additionally, scholars are interested in
the relationship between individual judge characteristics—such as race (e.g.
Gazal-Ayal and Sulitzeanu-Kenan, 2010; Kastellec, 2013; Sen, 2015) and gender
(e.g. Arrington, 2018; Boyd et al., 2010; Glynn and Sen, 2015)—and judicial
decision-making. Furthermore, scholars in the linguistic justice tradition examine
linguistic heterogeneity and the implications of language inclusion—or exclusion—
within institutions on the policymaking process (e.g. Gazzola, 2016b; Liu and
Baird, 2012). How does the choice of a lingua franca in a multilingual society
affect a court and its judges?
In this article, I examine the French language requirement’s effect on the Court
of Justice of the European Union (CJEU).1 As policymakers and scholars actively
deliberate whether the European Union (EU)’s commitment to multilingualism is
still viable, the CJEU is an institution using a lingua franca in its formal decision-
making. The CJEU mandates that all judgments be written exclusively in French.
While the member states are equally represented on the court—each member
state appoints one judge to the court—the judges’ capacity to write law outside of
their native languages is not given. Although the difficulty of translating law is well
documented, the difficulty of writing law in a different language has only recently
received attention (McAuliffe, 2011, 2013). If judges use legal reasoning in a dif-
ferent language and translate it into French, they may be more likely to write
vague and confusing law. Clarity of EU policy (e.g. directives from the
Commission and judgments from the Court) is a factor in member state (non)
compliance with EU law (e.g. Falkner et al., 2005; Mastenbroek and Van Keulen,
2006). Considering qualitative studies such as McAuliffe (2011, 2013) showing
non-francophones have difficulty writing law in French, francophone judges on
the CJEU—i.e. judges from France, Luxembourg, and French-speaking
Belgium—may be writing higher quality judgments.
Quantitatively testing questions regarding individual judges at the CJEU
requires disentangling the contributions of individual judges from the court’s col-
legial decision-making process. As a per curiam and civil law court, the CJEU’s
internal politics are obfuscated by design. A CJEU feature available for leverage is
564
European Union Politics 20(4)
the judge-rapporteur (JR)—judgment-writer—for a case. I find the court’s case
assignment to a francophone JR correlates with a 25 to 29 day reduction in
case duration on average. This estimate is robust to scaling the duration of each
case by the length of each judgment. However, francophone JR’s judgments have a
lower lexical diversity than non-francophone JR’s judgments. These findings
in conjunction imply that while francophone judges are more efficient in their
judgment-writing, their judgment-writing may not be of higher quality than
non-francophones.
Multilingual Europe, monolingual court
The EU is committed to multilingualism. According to the European Parliament
(EP), the European Strategy for Multilingualism has three objectives: “promoting
mobility of the labor force in the Single Market, employability and growth in
Europe; strengthening social cohesion, the integration of migrants, and intercul-
tural dialogue; managing in an effective and inclusive way multilingual communi-
cation in a supranational democracy” (Gazzola, 2016a: 7).
Existing scholarship from a variety of disciplines examines multilingualism from
the philosophical perspective of linguistic justice (e.g. Bellier, 2002; May, 2011) as
well as the costs and benefits of multilingualism in the EU and other contexts (e.g.
Ginsburgh et al., 2017; House, 2003). These studies weigh the efficiency gains from
changing the EU’s multilingual regime to a trilingual (i.e. English, French and
German) or monolingual regime (i.e. English) against the potential linguistic dis-
enfranchisement of a large proportion of the EU population. For example,
Gazzola (2016a) finds an English-only language policy would disenfranchise
45% to 79% of EU residents, while a trilingual language policy would disenfran-
chise 26% to 49% of EU residents. Some scholars argue English already acts as a
de facto lingua franca in Europe among individuals with different mother tongues
and should be recognized by the EU as such (e.g. Ammon, 2006; Seidlhofer, 2001).
Despite the EU’s official stance of multilingualism, CJEU judges write judgments
exclusively in French. The court then translates these judgments into each member
state’s official language. The Commission estimates the EU’s translation costs to
be approximately 1 billion euros (European Commission, 2013).
The historical reason for French as the CJEU’s operating language may be
prima facie obvious. The court was initially as an institution of the European
Coal and Steel Community (ECSC) in 1951, formed by France, Belgium,
Luxembourg, Germany, Italy, and the Netherlands. With French as an official
language for half the countries, French was the natural choice for the ECSC. The
ECSC treaty was explicit in Article 100 stating that it was “drawn up in a single
original”, meaning the document’s French language text was the only authentic
one and, thus, implying the organization’s legal language was French.2 As addi-
tional European institutions developed such as the European Atomic Energy
Community (Euratom) and the European Economic Community (EEC), the
CJEU’s jurisdiction expanded beyond the ECSC to these other institutions.
Cheruvu
565
While the treaties for Euratom and the EEC and eventually the EU all claimed
the treaties’ different language drafts had equal value, the CJEU was explicitly
exempt from abiding by the European Council’s language rules. Article 242 of
the Treaty on the Functioning of the European Union (TFEU) states: “The rules
governing the languages of the institutions of the Union shall, without prejudice to
the provisions contained in the Statute of the Court of Justice of the European Union,
be determined by the Council, acting unanimously by means of regulations”.
The continued exemption from the EU’s language rules for the CJEU is both
historical, as illustrated above, and practical. Lenz (1988), an Advocate-General
(AG) at the court from 1984 to 1997, explains:
For historical reasons the Court’s working language is French [. . .] As the Judges,
Advocates General and their staff are not masters of all possible languages of cases
and as the distribution of cases should not depend upon language, one language must
be chosen as the common means of communication.
As outlined comprehensively by Lenz (1988), selecting a common language for an
institution—in particular a judicial institution—has many practical benefits.
Nonetheless, using a single language entails costs as well.
How does the French language mandate affect the CJEU?
Speed and efficiency
The increase in the case workload...
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