Institutional constraints and collegiality at the Court of Justice of the European Union
| DOI | 10.1177/1023263X17723813 |
| Date | 01 August 2017 |
| Published date | 01 August 2017 |
| Author | Sophie Turenne |
| Subject Matter | Articles |
Article
Institutional constraints
and collegiality at the
Court of Justice of the
European Union: A sense
of belonging?
Sophie Turenne*
Abstract
This article examines how judicial selection, appointment and renewal processes deeply constrain
and influence the decision-making processes at the Court of Justice of the European Union (CJEU).
The short tenure period combined with the permanent triennial renewal of sitting judges are a
source of instability at the CJEU and the discretion left to Member States for renewal is a concern
for judicial independence. Besides, even if Member States were to concur on the core require-
ments of judicial merit, they may disagree on what judicial merit means in the context of the CJEU.
Against this institutional background, collegiality, as a constitutive value, is a safeguard of inde-
pendence as much as it facilitates the development of a common discourse within which individual
decisions will be made. In this context, the development of legal principles is no worse than can
reasonably be expected; the judges display considerable independence within the constraints
placed upon the CJEU. However, some judgments may appear to be compromises; more radical
reform is needed for those who hanker for clearer and bolder decisions. More ambitious judicial
reforms can only succeed with a single, non-renewable term of office, without any triennial
renewal of CJEU membership.
Keywords
Court of Justice of the European Union, judicial independence, judicial selection, international
courts, renewal of appointments, judicial reform, collegiality
* Murray Edwards College, University of Cambridge, United Kingdom
Corresponding author:
Sophie Turenne, University of Cambridge, Cambridge CB2 1TN, United Kingdom.
Email: st325@cam.ac.uk
Maastricht Journal of European and
Comparative Law
2017, Vol. 24(4) 565–581
ªThe Author(s) 2017
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DOI: 10.1177/1023263X17723813
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1. Introduction
One scholar, Ditlev Tamm, recently asked ‘to whom does the Court belong?’; in swiftly answering
that question, he remarked that the Court of Justice of the European Union (‘the Court’, as a
judicial body)
1
was not to be linked with any one country or any other tangible unit, but rather to an
abstract idea of Europe.
2
It was suggested that the Court essentially belongs to the European
citizens, even if access to the Court is restricted only through preliminary references from domestic
courts. Justice must naturally be administered ‘in the name of the people’. Yet any appraisal of the
Court’s sense of belonging – another term, we believe, for discussing the Court’s legitimacy – must
acknowledge the relevance of the institutional constraints that are placed upon the Court’s insti-
tutional constraints upon its capacities. From that perspective, the Court’s institutional design and
processes surrounding judicial appointments paint a less idealistic picture, where Member States
traditionally retain some discretionary links with the Court on judicial appointments. In this article,
we therefore seek to illustrate the ways in which the judicial selection, appointment and renewal
processes deeply constrain and influence decision-making processes, including the style of many
judgements.
Our argument will proceed as follows. The Court has been established as a sui generis suprana-
tional court; it is neither an international court nor a domestic supreme or constitutional court,
though it possesses functions similar to those. We start with a brief account of the institutional
guarantees and mechanisms shaping the independence of the judge at the CJEU (Section 2). We
will then examine the Member States’ strongh old on selection for appointments to the Court
(Section 3). Redolent of international courts, the current selection and appointment process fall
short of subscribing to a specific vision of the ‘bon juge europe
´en’, beyond the requirement that
those appointed should be independent and have the qualifications necessary for selection to the
highest judicial offices in their respective countries or be jurists of recognized competence. The
influence of the Member States on issues such as the possible specialization of judges or gender
diversity is immense.
The core guarantees of judicial independence are in place but they are silent on whether or how
Member States renew the short tenure of their individual judge or Advocate General. While
members of the CJEU are generally renewed in the ir post, this is far from certain and taken
altogether, the short judicial tenure, the partial replacement of judges every three years and the
discretionary power of Member States to renew the mandate of their national judge are a source of
major discomfort: they undermine the principle of independence in judicial appointments and are a
source of instability in the daily workings of the Court (Section 4).
However, within the precinct of the CJEU itself, the Court strives to safeguard and develop
impartiality, and we argue that the principle of collegiality in judicial decision-making allows the
Court’s culture of independence to grow in an organic fashion (Section 5). Judges are careful not to
rely on references to their own legal culture in their decision-making process, and not just within
1. References to the ‘CJEU’ are to the judicial branch of the European Union with (currently) two distinct courts: the Court
of Justice and the General Court (formerly known as the Court of First Instance). The Court of Justice itself is referred to
as ‘the Court of Justice’ or ‘the Court’.
2. D. Tamm, ‘The History of the Court of Justice since its Origin’, in Court of Justice of the European Union (ed.), The
Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-law - La Cour de
Justice et la Construction de l’Europe: Analyses et Perspectives de Soixante Ans de Jurisprudence (Springer, 2013),
p. 14.
566 Maastricht Journal of European and Comparative Law 24(4)
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