The faceless court? The role of individual CJEU members
| Published date | 01 February 2023 |
| DOI | http://doi.org/10.1177/1023263X231162771 |
| Date | 01 February 2023 |
| Subject Matter | Articles |
The faceless court? The role
of individual CJEU members
Paul Gragl *
Abstract
The CJEU is perceived to be a rather faceless court due to the principle of collegiality that is sup-
posed to suppress individuality in its inner workings. This paper argues that this is not necessarily
true in all cases and discusses instances wherein individual faces of the CJEU’s members become
discernible, in particular in their roles as President and Vice-President, respectively, the judge-rap-
porteur, Advocates General, single judges at the General Court, during public oral hearings, as
litigants themselves, and of course in their academic publications. It also shows that judicial visi-
bility can, in itself, certainly be construed to support the legitimacy of a court, but that it can,
at the same time, also undermine its functioning, especially when judges are, as appointees,
dependent on the will of their home Member State and others in the Council. Overall, it will
be demonstrated that there are various situations in which individual CJEU members may emerge
from an otherwise anonymous bench and play important judicial roles as individuals, thus rebutting
the long-standing presumption that the CJEU is a faceless court.
Keywords
Principle of collegiality, CJEU, General Court, judge, Advocate General, judicial system, judge-
rapporteur
1. Introduction: Celebrity status or obscured individuality
We tend to perceive courts –perhaps any court –as an ‘it’,
1
that is, an abstract and inconspicuous
institution, housed in an architecturally either remarkable or unremarkable building, populated with
a faceless mass of people that possess the legal authority to decide cases and settle disputes. The
*
Institute of European Law, University of Graz, Universitätsstraße 15/BE, 8010 Graz, Austria
Corresponding author:
Professor Paul Gragl, University of Graz, Institute of European Law, Universitätsstraße 15/BE, 8010 Graz.
Email: paul.gragl@uni-graz.at
1. M. Bobek, ‘The Court of Justice of the European Union’, in A. Arnull and D. Chalmers (eds.), The Oxford Handbook of
the European Union (Oxford University Press, 2015), p. 162.
Article
Maastricht Journal of European and
Comparative Law
2023, Vol. 30(1) 15–44
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DOI: 10.1177/1023263X231162771
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human element is therefore diffuse in the judicial system
2
and no concrete faces generally come to
our mind when we think of a court (in contrast to, say, the executive branch, which will make us
think of the head of State or government or even some ministers; and the legislative branch, wherein
we might be able to locate some prominent representatives). This is reasonable, for the judiciary is
typically,
3
and in contrast to the other powers of the State, not exposed to the political competition
taking place in the general public. As ‘the least dangerous’and ‘weakest’of the three powers, as
Alexander Hamilton wrote,
4
it is through this amorphous anonymity that it can, in most cases,
be protected from increased external pressure qua individualization in order to operate independ-
ently and impartially and thus to uphold the rule of law.
Yet, at the same time, it is also true that a court is nevertheless always a ‘they’,
5
an institution
that, like any other institution, lives through individuals who populate and operate it –regardless
of whether we consider this institution as the mere ‘sum’of these parts as individuals or even
more than that. We see this most vividly exemplified in the Supreme Court of the United States
whose justices are often cheered or jeered, but when done so as almost famous celebrities who
receive an uncommon degree of media attention, easily going beyond the modicum usually reserved
for jurists in general and judges in particular.
6
The late Justice Ruth Bader Ginsburg was, for
instance, depicted on shirts as the ‘Notorious R.B.G.’(as a wink to the name of famous rap artist
Notorious B.I.G.),
7
and even more popularized through the 2018 biographical film ‘On the Basis
of Sex’. Furthermore, and on a more serious note, controversial decisions such as the recent 2022
Dobbs judgment
8
on the constitutional status of abortion rights, overruling Roe v. Wade
9
and
Casey,
10
also contribute to establishing and consolidating a certain status among the Supreme
Court justicesthat not only allows one to categorize them easilyand swiftly in terms of political affili-
ation, but also to glorify or vilify them, respectively, depending on thepolitical worldview of a given
person.
11
The current US Supreme Court has consequently been bereft of a collective identity and
become an aggregation of individuals, each with their own personal legal style and jurisprudence.
12
In contrast to the American tradition, however, neither the European public nor EU legal schol-
arship used to dwell much on who the individuals are behind the ‘it’of the impersonal high juris-
diction of the Court of Justice of the European Union (CJEU)
13
(very much in contrast to the
2. J. Waldron, ‘The Rule of Law’, in E. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Summer 2020 Edition),
https://plato.stanford.edu/archives/sum2020/entries/rule-of-law/.
3. Thus, disregarding here the fact that in some States, judges are not appointed, but elected.
4. A. Hamilton, J. Madison, and John Jay, The Federalist Papers (Oxford University Press, 2008), p. 380.
5. M. Bobek, in A. Arnull and D. Chalmers (eds.), The Oxford Handbook of European Union Law, p. 162.
6. See, e.g., R.A. Posner, ‘The Supreme Court and Celebrity Culture’,88Chicago-Kent Law Review (2013), p. 299–305.
7. See e.g., R.L. Hasen, ‘Celebrity Justice: Supreme Court Edition’,19Green Bag: An Entertaining Journal of Law (2016),
p. 157.
8. U.S. Supreme Court, Dobbs v. Jackson Women’s Health Organization, 597 U.S. 1 (2022).
11. U.S. Supreme Court Justice Brett Kavanaugh, for instance, was almost assassinated due to the perpetrator’s dissatisfac-
tion with the Supreme Court’s leaked draft opinion in Dobbs. See M. Cramer and J. Jiménez, ‘Armed Man Traveled to
Justice Kavanaugh’s Home to Kill Him, Officials Say’,New York Times, 8 June 2022, https://www.nytimes.com/2022/
06/08/us/brett-kavanaugh-threat-arrest.html.
12. C. Lerner and N. Lund, ‘Judicial Duty and the Supreme Court’s Cult of Celebrity’,78George Washington Law Review
(2010), p. 1270–1271.
13. Nota bene that in this paper, ‘CJEU’refers to the Union’s judicial branch in toto, thus encompassing the Court of Justice
as well as the General Court.
16 Maastricht Journal of European and Comparative Law 30(1)
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