Abstract
The CJEU is perceived to be a rather faceless court due to the principle of collegiality that is supposed 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-rapporteur, 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 visibility 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
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 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 independently 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 justices that not only allows one to categorize them easily and swiftly in terms of political affiliation, but also to glorify or vilify them, respectively, depending on the political 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 scholarship used to dwell much on who the individuals are behind the ‘it’ of the impersonal high jurisdiction of the Court of Justice of the European Union (CJEU) 13 (very much in contrast to the European Court of Human Rights (ECtHR), where judges can sit as single judges 14 or issue separate opinions 15 and thus sometimes become visible even outside of Strasbourg). In Luxembourg, however, judicial individuality is supposed to be suppressed, as there are no separate or dissenting opinions, no personalized style of drafting judgments and, regularly, no individual judges emerging from the collegiate court. 16 When issuing a decision, the respective CJEU benches produce one single judgment presented by the Court as a whole, which officially obscures the individuality of particular judges’ participation in the decision-making process and its result. The judges themselves are sworn to secrecy about their internal deliberations and the CJEU, 17 as an institution, refuses to allow access to any materials that could reveal how its judges reached their decisions. 18 Even after the opening of its judicial archives, personal papers of the judges are not included in public files in order to maintain this secrecy. 19 On an index of judicial individualism, the CJEU thus finds itself firmly anchored on the collectivist end of the spectrum. 20
Eric Stein wrote in 1981 that the CJEU still finds itself ‘[t]ucked away in the fairyland Duchy of Luxembourg […]’, which might still hold some veracity, but it is, today, no longer true – as he continued – that it is benignly neglected by the outside world. 21 The CJEU as a whole and its individual members (judges and Advocates General) reflect the Union as a Union of law, 22 the rule of law and European integration through the law. For this reason, the CJEU is sufficiently famous or infamous in Europe – again, depending on the respective person's outlook on the European Union – so that it is generally known as an abstract institution (albeit often confused with its Strasbourg sibling, the European Court of Human Rights). And it is for this reason that we may ponder questions such as: Who are the members of the Court in Luxembourg? Who are these individuals? Why are they not widely known outside legal circles (such as the justices of the US Supreme Court)? And how, when and why do we see their faces? How do they develop a public persona?
I do not intend to discuss the CJEU's often-criticized judicial activism here, nor the brevity or obscurity of the Court's judgments which is often tied to particular judges and their personality as well as their specific legal education and outlook, regardless of the jurisdiction in question. But it is nonetheless important who the judges and other Court members are, because it is untrue that ‘the judge has no will, no value choices, but is just a calculating machine’ 23 in the sense of Montesquieu's ‘bouche de la loi’. 24 It therefore matters who these individuals are and how, when and why they emerge. The focus of this paper consequently is to demonstrate that the CJEU is not as faceless a court as originally thought, and that in certain instances, members of the CJEU do emerge as individuals from their group of peers (regardless of whether they engage in judicial activism or not) – even though, one must keep in mind, it is the judges’ and Advocates General's personal conviction that may or may not drive European integration. 25 In this vein, for instance, all decisions of the Union's foundational period can be attributed to a now famous name, such as the ground-breaking decision in Van Gend en Loos 26 to the arrival of Robert Lecourt at the CJEU one year before the judgment. 27
One might, however, argue that given the already existing work in the legal academic debate on the CJEU and its personae, 28 it has been a long time since the CJEU could have been considered truly faceless – as both an excellent paper with the title ‘The Faceless Court’ 29 on the behaviour of CJEU judges and their référendaires, and the title of this contribution insinuate. Since I intend to continue here work that has already been started by other authors by helping to lift the veil that protects the CJEU, I added a question mark to this statement. Thereby, I question this presumption and intend to demonstrate, by way of some examples, how individual CJEU members become indeed onymous and visible. 30 Hence, to answer the question when, how, and why individual CJEU members distinguish themselves and appear as individuals, and on what legal basis this may occur, I first assess the principle of collegiality at work at the CJEU which makes the Court prima facie a faceless court (section 2); after that, the roles of the President and Vice-President, respectively (section 3); that of the judge-rapporteur (section 4); the academic activities of judges and Advocates General (section 5); individual Advocates General (section 6); the unusual court formation of single judges at the GC (section 7); the exposure of judges during oral hearings (section 8); and eventually how former CJEU members appear as litigants and critics of the institution where they used to work (section 9).
The principle of collegiality
Collegiality as a permeating principle
It is of course undeniable that individual characters with a strong conviction for a cause can and will influence the course of legal history (as Robert Lecourt did in the case of Van Gend en Loos, or the highly influential Pierre Pescatore in Internationale Handelsgesellschaft 31 with his intellectual fingerprints all over it). 32 Judges are, after all, human beings with individual biographies and they, accordingly, bring different understandings of merit and of their role to Luxembourg. The system at work there, however, coalesces these potentially different approaches through the constitutive principle of collegiality. This principle is the very reason why individuality is obscured and judges become, from the external perspective, part of an anonymous group without any discernible jurisprudential characteristics. Collegiality should nevertheless not be seen as negative, but rather as a positive mechanism to enhance and guarantee judicial impartiality. 33 On the contrary, seeing that this principle is deeply anchored in the civil law tradition 34 (especially in the French Conseil d’État which was the principal model for the CJEU) 35 and can look back on a long history that proved its effectiveness, collegiality is certainly to be commended for creating the necessary incentives for individuals to act within given institutional norms and thus to alleviate or remedy personal cognitive biases in judicial decision-making. 36
Collegiality is therefore far more than whether judges write separately or together, whether they are friends or not, and even whether they routinely agree with one another. 37 It is a judicial ecosystem 38 that, as a common denominator, functions on the basis of majority votes to decide cases 39 (a requirement that is not to be confused with compromise or consensus), 40 but goes beyond that by fostering cohesion among the judges that transcends cultural, political, social 41 – and most importantly, in the case of the CJEU – linguistic differences. Thus, especially in preliminary ruling procedures, before the CJEU can even begin a constructive judicial dialogue with national courts, it has, first, to prove authority through discursive legitimacy within its own ranks. 42
The Court itself defined the principle in the following way (even though the case at hand involved the Commission where the same principle is at work), namely that decisions are adopted on the basis of equal participation of all judges involved in a given case; that such decisions are the subject of collective deliberation; and that, lastly, all judges involved in a given case bear collective responsibility for their decision. 43
The values of collegiality
The question remains what these characteristics of collegiality mean in practice and whether they are of actual value to the legal system of the EU. J.H.H. Weiler, for one, does not perceive any benefit in it and once urged the CJEU to abandon its ‘Cartesian discourse’ in favour of a more ‘Anglo-Saxon-oriented’ deliberation. 44 What he means by that is that the Court should trade its cohesion gained through secrecy and obscurity with transparency by permitting its judges to appear as personalities in their own right and to present more individualized approaches that could further develop EU law. This would allow for diverse decisions that are more conducive to the dialogue with national courts, since they would thereby yield a higher degree of judicial legitimacy. CJEU President Koen Lenaerts later responded to this criticism by acknowledging the ‘undeniably great merit in those observations’, but also highlighted that collegiality is of paramount importance ‘for the daily inner workings of the [CJEU]’, as the persuasiveness of its argumentative discourse lies in the building of consensus, or at least in bringing on board as many opinions as possible. 45
Collegiality in the Court therefore reflects four distinct values, as Sophie Turenne describes: 46 (i) First, it guarantees judicial independence from the appointing body, namely, first and foremost, the respective appointing Member State, but also – as judges are appointed by common accord in the Council – from the governments of all Member States. This can of course not entirely address the problem of renewable tenures under Articles 19(2) TEU and 253 TFEU, which compromises – again, in Weiler's lively words, as ‘an ongoing scandal unknown in all respectable jurisdictions’ – the judges’ independence from their own government. 47 But the principle of collegiality can, at least, counter one of its most unwelcome possibilities, namely the identification by name of a particular judge in a decision unfavourable to a Member State. 48 This coincidentally proves Dunoff's and Pollack's trilemma hypothesis, stating that international courts can only ever maximize two of their three core values (independence, accountability, and transparency), and never all at once. This means that as soon as one of those values undergoes a significant change, an interlocking series of trade-offs will result in a concurrent change of the other two. 49 This can, consequently, explain why, at the CJEU, collegiality (transparency) cannot be set aside as long as judicial appointments remain renewable every six years (accountability). (ii) Second, the principle of collegiality refers to the interactions between judges while deliberating, which not only ensures ‘reciprocal control’ 50 among them, but also adds persuasion to the mix of the decision-making process (even though this may not significantly sway hardened judicial positions in practice) 51 where a principle of equality, and not seniority, among the judges matters. 52 (iii) Third, collegiality also entails taking collective responsibility for the judgment, involving numerous drafts before the final decision is reached. 53 This means that all members of the Court are responsible, up to the last minute, for making the final judgment as good as it can be, even if they face disagreements over the result. 54 The conversation between judges thus serves to test and ultimately to refine legal arguments. 55 (iv) Fourth and last, collegiality supports unity in diversity, since the textual interpretation of EU law requires, under the principle of collegiality, to extract an autonomous European meaning from an otherwise commonly used legal term in the Member States. In order to do so, judges need to detach themselves from their particular legal culture and to acknowledge the diversity of legal solutions to a particular problem. 56
Collegial characteristics in the treaties: Qualifications and chambers
The various advantages of collegiality for the functioning of the EU's judicial system have now become obvious, but it equally remains an obscuring force when trying to discern any individuality at the court. The underlying reason for this is that the judges’ independence should be safeguarded as best as possible, as they do not act as political representatives of their home States, but as neutral judicial experts. 57 The question therefore is whether we can nonetheless deduce anything in this regard from the Treaties and the relevant provisions on the judges’ collegial characteristics required for their office. Perhaps some provisions might permit us a glance at when, how and why judges may emerge as individuals from their colleagues.
Articles 19(2) TEU and 253 TFEU clarify that both the judges at the Court and the GC, respectively, as well as the Advocates General, shall be persons ‘whose independence is beyond doubt’ and ‘who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence’. Whether the persons chosen by their respective Member States in fact fulfil these requirements is then assessed in the procedure set out in Article 255 TFEU, which is of no further concern here. With good reason, these provisions only provide abstract conditions and set out certain characteristics required of future judges and Advocates General that will later prove crucial once they have become part of the Court's system of collegiality. These provisions cannot therefore tell us anything about the possible individual emergence of judges.
Moreover, the Treaties also establish, in Article 251 TFEU, that the CJEU (that is, both the Court and the GC) shall sit in chambers of three or five, respectively, or in a Grand Chamber of 15, or ‘as a full Court’ of 27 judges. 58 This means that there is no Treaty provision that would allow any judge in Luxembourg to sit as a single judge and present themselves as an individual. We will later see that this remains true for the Court, but not the GC, where single-judge decisions were later introduced by a Council Decision amending the Statute of the Court and the Rules of Procedure, respectively. 59 The Treaties thereby further elucidate the principle of collegiality and do not allow, at least prima facie, for any individual emergence of the judges, at least at the Court.
However, as the use of ‘prima facie’ might indicate, we have not yet exhausted all options and legal provisions available to us that permit individual judges to show their face and to stand out against the collegium of their fellow adjudicators. Not all of them are obvious, and for some, a more creative way of thinking is necessary. Let us now have a look at these provisions in more detail.
Presidents and Vice-Presidents of the Court
President of the Court
In principle, there is no hierarchy among judges on multimember courts, especially if they are governed by the principle of collegiality, thereby rendering their mutual relationships the weakest form of hierarchy. 60 It is therefore all the more important what personality, leadership style and court practices the respective president of a court adopts. 61 There are only few ‘commentaries’ on the Presidents’ individual personalities who therefore became merely known by personal anecdotes. 62 Robert Lecourt, for instance, wrote that it is the President who animates and enlivens the Court, which is otherwise administered collegially. 63 Interestingly, it was especially the reforms initiated by former President Skouris (such as the so-called ‘255-panel’, discussed below) that kicked off the first academic debates of his personal leadership style and eventually resulted in the first commentaries on the current President Lenaerts. 64 It thus only stands to reason that particularly the President of the CJEU enjoys a natural authority and exercises much more power than other court members, wielding wide administrative and judicial powers that make him or her more than just a primus inter pares. 65 In fact, a recent comparative study of court presidents in various European States as well as the European Union showed that the President of the CJEU ranks among the most powerful in Europe and thus as a true judicial leader 66 – which makes the question even more momentous of who the actual individual holding his office is.
One pivotal aspect of this office and the significance of the individual behind it follows from the fact that the President's term is – albeit basically limited to relatively short three years – renewable more than once; 67 an option that is, in practice, also often and commonly used. At least superficially, this speaks in favour of a high degree of collegiality in the colloquial sense and amicability as the President is elected by his or her peers by simple majority, and not the Member States. 68 The last three Presidents, for instance, nonetheless all held long tenures, such as Gil Carlos Rodríguez Iglesias (nine years; 1994–2003), Vassilios Skouris (12 years; 2003–2015) and Koen Lenaerts (since 2015), and thus critically influenced the Court during their judicial leadership by transferring their authority to the office of the CJEU's President. In particular Koen Lenaerts, the current President, appears to be a typical example in this regard, who – as a prolific scholar and writer and thus considered to be an intellectual leader in the field of EU law – started his judicial career in Luxembourg as a référendaire and who is now a skilful judicial diplomat, well-connected within both the Union institutions and academia, well-versed in several other languages beyond French and English, and respected by the legal community in Europe and the other side of the Atlantic. 69 Accordingly, the President in general, and currently President Lenaerts in particular, represents the Court as an institution internally 70 as well as externally, and clearly acts as its public face that can be easily identified and individualized – a task which is also explicitly listed as one of the President's responsibilities in Article 9(1) of the Rules of Procedure of the Court.
The President's precise powers and various responsibilities are not clearly spelt out in the Court's Rules of Procedure, but merely set out in abstracto: besides this representative function, the President is tasked, quite sweepingly, to ‘ensure the proper functioning of the services of the Court’, 71 consisting of its internal administration (which is of no further relevance here, as this function would not individualize the President externally and publicly), directing its judicial business, presiding at general meetings of the Court's members and at hearings before and deliberations of the full Court and the Grand Chamber. 72 Let us now assess, in the following sections, what these concrete powers and responsibilities entail in order for the President to show his or her face.
Jurisprudential powers: Shaping the law as an individual
To administer the law is certainly the primary duty of a judge, and even more so that of the President of the CJEU who is, compared to their peers, also in a better position thereby to shape and further develop the law. This is, in particular, the case with regard to the President's abovementioned ex officio responsibility to preside at hearings before and deliberations of the full Court and the Grand Chamber. 73 The President (plus the Vice-President) are therefore the only permanent members of the 15-judge Grand Chamber, while other judges rotate. 74 Given the fact that the Court will only sit as a Grand Chamber when a Member State or a Union institution that is party to the proceedings so requests, 75 or when the Court considers that a case before it entails certain difficulties, bears specific importance, or is born of particular circumstances, 76 respectively; or as a full Court when the case before it is considered to be of exceptional importance, 77 the President will always partake in the most significant decisions concerning the EU's legal order as a whole. This circumstance not only gives him or her obviously more prominence, both in the general public (if the case is presented in the media) and in the relevant legal circles, professional as well as academic, but also the opportunity to steer these most important cases into a specific direction. An empirical study on the Supreme Court of Israel concluded that multimember courts may be subject to a so-called ‘presiding justice effect’ according to which presiding judges are more likely to vote in their preferred direction and non-presiding judges defer more to the presiding judge's view. 78 Translated to the EU context, this could suggest that CJEU Presidents may have more opportunities to influence their peers and make a considerable imprint on the law, especially when taking into account that they sit ex officio on the Grand Chamber and the full Court that decide the most important and high-visibility cases. 79
Besides this substantial power to influence the further development of Union law, the President could – until 1 November 2012 – also show their face, as a single judge, by ruling on applications for interim measures. 80 Yet, by a Court decision on the basis of Article 39(2) Statute of the Court and Article 10(3) Rules of Procedure, 81 this judicial function has meanwhile been transferred to the Vice-President of the CJEU, 82 which is why this particular possibility to arise as an individual judge will be discussed below in section 3.B.2.
Professional powers: Power over judicial careers and the future of EU law
Another window through which the President may show his or her face and be individualized among the other CJEU judges is the selection procedure of future CJEU judges. This, of course, only happens indirectly, as I will explain, and not toward the general public, but vis-à-vis the Member States and the Council. Nonetheless, even before the creation of the currently operating judicial selection panel on the basis of Article 255 TFEU, then-President Skouris was the principal driver of reform by taking the initiative 83 to both create such a panel in the first place 84 and to lay down its future operating rules. 85
The seven panel members are appointed by the Council, yet it may only do so on the President's initiative. Of these seven members, six are proposed by the President, and one by the European Parliament. 86 The Parliament proposal is to be addressed to the President, who may not, however, reject this candidate, as this would go against the purpose of Article 255(2) TFEU and the express inclusion of the European Parliament. 87 This means that although neither the CJEU in toto nor its President have direct say in the selection of new judges, the establishment of the so-called ‘255 panel’ has, at least indirectly, led to increasing the CJEU's as well as the President's influence on the selection process. 88 How the potential panellists are recruited, on what grounds the President bases their decision, and who potential souffleurs could be remains nonetheless a secret, although in the context of the first round of panel appointments, it has been suggested that then-President Skouris was heavily lobbied by some Member States. 89 It therefore makes sense that so far, the Member States have followed the proposals and confirmed the suggested candidates as panellists without discussion. 90 At this point, it should also be mentioned that former President Skouris continues his work as a prominent and visible EU jurist as one of the current panel members (whose tenure runs from 1 March 2022 to 28 February 2026). 91
Two last comments on the President's role in selecting the selectors on the panel. First, it is notable that the President may choose candidates ‘among former members of the Court of Justice and the General Court, members of national supreme courts, and lawyers of recognised competence’. 92 In reality, the Presidents have, so far, demonstrated a discernible tendency toward appointing high-raking senior national judges (currently four of seven) instead of exclusively proposing former EU judges, as former Advocate General Bobek surmises (although it remains doubtful if Article 255 TFEU would allow for such an exclusive ‘EU-only’ composition of the panel). Such a composition would have followed a different logic, possibly more inspired by a vision of horizontal inter-institutional balance. Yet, by giving national judges a majority, both the panel and the EU courts are given additional legitimacy, acceptance and authority among the Member States and their respective judiciaries by the now more visible President of the CJEU, taking a path less political and solely government-driven. 93
Second, given this direct involvement of the President in the composition of the selection panel, it becomes progressively more an expression of the judiciary itself (and in particular that of the President, choosing six out of seven panel members) than that of the other Union institutions or the Member States, resulting in a higher degree of judicial self-governance. 94 The former panel President Jean-Marc Sauvé (2010–2018) accordingly described this development, quite illustratively, ‘as a germ of a council of judiciary within the Union’. 95 The Member States, nevertheless, have the last say and remain in charge of the ultimate composition of the panel. They could also reject the list of names proposed and force the President to conceive of different candidates, thus restricting the Court's new-found extent of judicial self-governance. So far, as just discussed above, the Member States were satisfied in this regard, and it remains to be seen whether both conventions – namely, that they accept the President's list of candidates and that the majority of panel members are senior national judges – crystallize into norms considered to be binding on the Member States. If so, the person holding the office of the CJEU's President continues to be an increasingly visible judge and institutional force to be reckoned with. 96
Quasi-legislative powers: Intra-institutional disputes and lobbying
Speaking of judicial self-governance, the only example of a major intra-institutional conflict in this regard within the CJEU that also received extensive media coverage 97 and brought the then-President Skouris to the fore, concerned a dispute between him and the then-GC President, Marc Jaeger. Against the will of the GC, which opted for different measures to boost its efficiency, Skouris had used the Court of Justice's prerogative in legislative reform of the Court's Statute on behalf of the whole CJEU, namely its right to request amendments of the Statute on the basis of Article 281 TFEU, to push for doubling the number of GC judges. 98 This request resulted in severe controversies over the question who speaks for the CJEU vis-à-vis the Member States and the other EU institutions, in particular because of President Skouris’s (officially not communicated) lobbying with the President of the European Parliament 99 as well as the German Ministers of Justice and Finance, respectively, to discuss the GC reform. 100
Although this dispute exemplifies a (so far only singular controversial) event in which the President showed his face both in public and toward the other Union institutions and the Member States, it was not a dignified one, as his conduct became the subject of severe criticism. Not only did the manner of his involvement in the judicial reform and the lobbying raise serious concerns regarding judicial independence, ultimately leading to the invocation of the CJEU's Code of Conduct, 101 but his actions also caused a rift between him and the GC President Jaeger. 102
Vice-President of the Court
Creation of the office and main responsibilities
As part of the post-Lisbon changes to the functioning and internal organization of the CJEU, a new prominent judicial face emerged over the last couple of years, namely that of the Court's Vice-President. 103 The creation of this office was mainly required by the increasing responsibilities of the President in order to assist them in efficiently carrying out these responsibilities, 104 now also including – due to the greatly-expanded number of judges – more administrative work. 105 Having been amended in 2012, 106 the Statute of the Court now provides in its Article 9a(1) for the election of a Vice-President from among the judges for a tenure of three years which is also, like the President's tenure, renewable more than once. 107 Since these reforms, the office of the Vice-President has been held by current President Koen Lenaerts (2012–2015), Antonio Tizzano (2015–2018), Rosario Silva de Lapuerta (2018–2021) (who will feature more conspicuously below) and Lars Bay Larsen (2021–present).
Among the Vice-President's concrete duties, he or she shall generally assist the President in the performance of [their] duties and shall take the President's place when the latter is prevented from acting or attending, or when the President's office is vacant. 108 Even more importantly, the Vice-President becomes publicly visible in the performance of their judicial duties, such as when representing the Court in lieu of the President, 109 as a permanent member of the Grand Chamber, 110 and, as already briefly mentioned above in section 3.A.1 and discussed in detail below in section 3.B.2, when ruling on applications for interim measures – a judicial function which has since been transferred from the President to the Vice-President. 111
Interim measures: Exposure and attacks in the Turów Mine case
Ruling on the application of interim measures in oral hearings give the Vice-President the occasion to become visible as a single judge, such as, most recently, in one of the rare disputes among Member States, namely the Turów Mine case between the Czech Republic and Poland. 112 Due to the massive cross-border environmental impact of that mine, the Czech Republic sought the immediate ceasing of mining activities in Turów (Poland), which then-Vice-President Silva de Lapuerta granted on 21 May 2021. However, in this case, a higher degree of visibility of a judge's face or name was certainly detrimental, as only one day later, Krystyna Pawłowicz, a former parliamentarian from the ruling Polish Law and Justice (PiS) party and now a usurping judge at the Polish Constitutional Tribunal, 113 aggressively attacked her personally and without engaging with the interim measure itself on Twitter by writing: ‘What this Mrs Silva de Lapuerta has done to Poland is a form of ruthless aggression against Poland on an infantile pretext and with arbitrary manipulation of the rules… It is a gangster practice that does not befit an EU court…’. 114 After an application by Poland for cancellation of the 21 May 2021 order, which Vice-President Silva de Lapuerta dismissed (besides ordering Poland to pay the European Commission a penalty payment of €500.00 per day until compliance with the original order) on 20 September 2021, 115 however, the Czech Republic and Poland reached an amicable settlement and the case was struck from the Court's register. 116
Vice-President Lapuerta found herself again subject to heavy criticism in 2022 after she had ruled that Advocate General Eleanor Sharpston had ‘no prospect of success’ with her actions to obtain interim measures against her premature dismissal upon the United Kingdom's withdrawal from the EU 117 (see also section 9.A below). This time, however, the criticism was not governmental, but academic, and expressed in a paper by Dimitry Kochenov and Graham Butler, who were scathing towards the Vice-President for this decision, mentioning ‘precariously dubious reasoning’ and accusing her of legal ‘absolutism’ in which she ‘cared little about legal reasoning or the law’. 118 This is not the place to engage with the question of whether Lapuerta's decision was correct or not, and I fully agree that if it was indeed wrong, academic criticism should be expressed. But perhaps such harsh language directed against one single judge and also the underlying bone of contention could be avoided in the future by assigning all decisions concerning interim measures to a chamber, especially because such measures regularly raise politically sensitive questions.
The judge-rapporteurs
The President's powers can also be discerned in their full discretion to select a rapporteur among their colleagues upon the arrival of a new case 119 (as the Presidents themselves only rarely act as judge-rapporteurs). 120 This usually happens on the grounds of seniority and the connection between cases, always respecting the rule that a judge may not report on a case emanating from or involving their home Member State. The judge-rapporteur wields incredible power in terms of the outcome and the reasoning of a case, as well as the recognition that comes with it. 121 For the importance attributed to it and its preparation largely depend on their work, namely in drawing up the preliminary report which contains a first assessment of the case, procedural proposals concerning the formation to deal with the case (three- or five-judge chamber, Grand Chamber or the full Court), and an answer to the question whether an oral hearing and an opinion by the Advocate General are necessary. 122 Lastly, it falls to the judge-rapporteur to draft the judgment and to revise it, if necessary, so that it reflects the consensus of the majority of the bench. 123
Despite the significance of the judge-rapporteur's substantive role in the outcome of a case, this role seems to be – at least prima facie – to be of a more internal importance (that is, within the workings of the Court), thus not really permitting the respective judge to become visible externally. This view, however, is not correct, since in every decision, the name of the judge-rapporteur is listed (with this designation in brackets next to the name) in the title part of the judgment. 124 Interestingly, this has not always been the case, as this practice of explicitly naming the respective judge-rapporteur had been provisionally dropped under the presidency of Robert Lecourt in October 1975, 125 after a European law journal started publishing the cases under the name of the judge-rapporteur involved and the Court meant to dismiss their influence on the decision (because the final decision on a judgment can also be taken against the vote of the judge-rapporteur). 126 This hiatus in visibility only ended in January 1994 under the presidency of Ole Due, 127 when the practice to include the judge-rapporteur's name in decisions was resumed. 128
This revived practice of openly presenting a particular responsibility of one individual judge has led to more visibility and recognition within and outside the Court. The German daily newspaper Süddeutsche, for instance, praised then-judge-rapporteur von Danwitz’s role in a pivotal case 129 on the eventual invalidity of the Data Retention Directive 130 in the light of the principle of proportionality and fundamental rights in the following words: ‘A vital role in this [case] is played by a German. Thomas von Danwitz […] is the responsible judge-rapporteur. […] In his public statements, [he] advocates that the Court act more confidently which he also defends against criticism from Germany […]. It is therefore conceivable that, now, a German judge triggers the decisive step toward a true European constitutional court.’ 131 Similarly, former President Rodríguez Iglesias has been publicly commended by former judge and then-President of the German Federal Court of Justice Günter Hirsch for how he presented his vision for Europe and his legal skills as judge-rapporteur 132 in the formative case of Brasserie du Pêcheur. 133 The same appraisal can be found in academic writings, where, for instance, judge-rapporteur David Edward is lauded in recognition of his ‘major contribution to the decisions’ of the CJEU in this role, 134 or where this position is, based on a study on the path dependence of the case law, to be found to be ‘most influential’ for the solution of the case: 135 they frame the overall debate and are the agenda-setters in their assigned cases. 136
The position of judge-rapporteur is therefore not be underestimated; neither in substantive terms as to how they can influence the further development of EU law, nor in terms of visibility and how their names can become known to a wider public even beyond professional and academic legal circles, if their case attracts enough prominence and publicity in the media. This is all the more the case since audiences are reminded, in solemn farewell addresses dedicated to judges leaving office, of their ‘grand cases’ and what role they played therein as judge-rapporteurs. This might seem a little dangerous, for this practice amounts to admitting that the judge-rapporteur was either in favour of the judgment rendered under their authorship, or that they eventually opposed a judgment they penned (or had to pen, one may say). Whilst this implicit disclosure of their substantive allegiance to the outcome of legal disputes could be regarded as violating the secrecy of deliberations and the principle of collegiality, it also permits us a look behind Luxembourg's veil and the very personal role of judge-rapporteurs on the development of EU law. 137
Judges and Advocates General as academics
An academic tone in Luxembourg
The style of CJEU judgments as well as that of the opinions by the Advocates General is distinct because of their sometimes overly academic tone, which is due to most of the judges and the Advocates General 138 having an academic background (besides some also having a judicial or civil service background). 139 Apropos of this, in an academic publication and thus writing extrajudicially, former Advocate General Michal Bobek justifies this very tone in the composition of the CJEU both functionally and culturally. Functionally, on the one hand, the abstract law-application (and thus law-creation) by the CJEU, especially within the course of a preliminary ruling procedure, requires analytical minds that can rise above the limits of a single case and a national judicial routine, and that are thus able to perceive the case in the context of the bigger European picture. Similar mindsets can certainly meet half-way between a theorizing practitioner and a practically minded academic. Culturally, on the other hand, having a higher court being composed of exclusively senior judges reflects merely one particular legal tradition within the EU. Other legal traditions within the Union are much more open toward higher courts also being composed of academics, in particular when we consider the long-standing historical example of the Aktenversendung, 140 through which German courts, from the 16th to the 19th centuries, could request legal opinions on complex cases from a collegium of respected law professors. 141 Being an academic and a judge is consequently not entirely uncommon, and it therefore only stands to reason that CJEU members can also be individualized and become more visible when they continue to write and publish academic legal texts.
Balancing two roles: the influence of the Code of Conduct
Active as well as former judges are nonetheless not entirely free in their role as academics, as the CJEU Code of Conduct 142 regulates their external conduct in order to protect their judicial independence, integrity, dignity, impartiality, loyalty and discretion. 143 This means that even though academic publications are allowed without prior authorization by the judge's peers, 144 they must not act or express themselves in such external activities in a manner which adversely affects the public perception of these judicial core values. 145 In other words, both active and former judges, when acting as academics, are barred from contradicting the case law in which they were directly and clearly involved as a judge. 146 This results in interesting nuances, turns and diplomatic wording in their academic writings, as we will see now by means of three illustrative examples.
Examples of judicial and academic discrepancies
Judge-rapporteur Pescatore and the rift between international and EU law
It is no exaggeration to state that Pierre Pescatore played an immensely crucial role in shaping European integration, both in his judicial and academic work. 147 There is, in fact, an intriguing case in which both parts of his profession intricately came together to develop further the law of the Union. It starts with an obvious discrepancy between his academic and judicial activities, which then, however, supported the Union's subsequent constitutionalization and the eventual resolution of a concrete case by juxtaposing two legal views on the very nature of EU law.
In an academic paper from 1966, Pescatore first distinguished between the Council acting as a (then-)Community institution in the strict sense, on the one hand, and the Council acting as a diplomatic venue of the Member States’ representatives. In the latter case, the acts of the Council would not form part of the overall system of acts emanating from the institutions and hence be based on a Community competence, but would derive their legal force – despite relying upon the organic structure created by the Treaties – from the international competence of the Member States. 148 Later, and as the judge-rapporteur in the formative ERTA judgment of 1971, 149 Pescatore nevertheless refrained from dwelling on this relationship between the international law actions of the Member States and genuine Community acts. The judgment remains indeed entirely silent on the matter, although it could have – in the light of Pescatore's previous academic work – construed the contested proceedings as being of an international law nature originating from the international law powers of the Member States acting within the Council. Yet there is no mention of this tension and its implications in the decision itself, even though the Council also relied on this line of reasoning in its submissions and requested the Court to investigate the legal nature of the act in question. 150
In a subsequent academic piece from 1983, Pescatore helps us to understand the Court's prudent attitude in not addressing matters in terms of international law. He explains that relying on criteria and arguments deriving from international law could result in the disintegration of the Community legal order by introducing into it a ‘Trojan horses loaded’ with ‘international legal reasoning’. 151 This ‘introversion of the legal argument’ is accordingly to be understood as a strategy of judicial restraint marking the distinction between international law and Community law. 152 Pescatore underlined that the Court needed to react against a contractual understanding of the Community, in which it (and therewith the Council) was reduced to a ‘common organ’ 153 that merely served to represent the interests of the Member States. 154 Instead, the Court wished to promote the Community's legal autonomy in its external relations qua an institutional vision, 155 which Pescatore, as a judge-rapporteur in this case, put on the judicial map on the basis of his previous scholarly works. Despite the original discrepancy, this exemplifies an instance of true academic and judicial cross-fertilization.
Advocate General Szpunar and the concept of a ‘court or tribunal’
The next example I would like to discuss here is the professional deference shown by Advocate General Maciej Szpunar in his opinion regarding the case Moldova v. Komstroy. Following the pivotal Achmea judgment and the Court's decision that an investment tribunal established by a bilateral investment treaty between Member States cannot be regarded as a ‘court or tribunal of a Member State’ and that they are hence not entitled to make a reference to the Court for a preliminary ruling, 156 Szpunar followed this reasoning and even extended it to such tribunals created under the auspices of multilateral treaties. He argued that an arbitral tribunal established by Article 26 of the Energy Charter Treaty falls outside the EU judicial system, since it has no connection with the judicial system of the Member States. Accordingly, it does not constitute a court or tribunal within the meaning of Article 267 TFEU and is not entitled to make a reference to the Court for a preliminary ruling. 157
Szpunar's reasoning and conclusion might, in themselves, not be surprising, given the precedent set by the Court in Achmea. Yet, there is more than meets the eye, especially in the context of an extrajudicial academic publication which the Advocate General mentions in his opinion: in footnote 53, he references a chapter in an edited volume in which he concisely describes the general place of arbitration within the Union's legal system and clearly advocates that the interpretation of the concept of ‘court or tribunal’ under Article 267 TFEU should be less strict and could even be extended in order to include such arbitral tribunals. 158 In the same footnote, he acknowledges his former approach by writing that the ‘did not rule out the contrary view prior to the judgment in Achmea in the context of my academic activities’, but concedes that he ‘now defer[s] to the Court's reasoning in this regard.’ 159 This example of an Advocate General openly deferring to the Court after having taken a strong public stance as an academic shows the highest degree of professional behaviour in line with the Code of Conduct, which – by taking note of the interim developments and following them – also guarantees the integrity of the Union's judicial system. And ultimately, this decision was correct, as – although the Court and the Advocate General differed in terms of legal reasoning – the Court eventually agreed with Szpunar concerning the result later that same year, 160 resulting in a concurring opinion and judgment.
President Lenaerts and the relationship between direct effect and primacy
The third example concerns public exposure by President Lenaerts in his extrajudicial academic publications and how they contrast with the relevant case law regarding the long-standing discussion on the relationship between primacy and direct effect. Since the Court held in Simmenthal that national courts are under a duty to disapply national law in conflict with EU law, 161 without, however, clarifying what role direct effect plays in this matter, the question arose whether primacy can be employed independently from direct effect. Following the opinions of some Advocates General 162 and academic sources based on French administrative law, 163 Lenaerts (together with Tim Corthaut) argues in an academic essay that primacy and direct effect can, but do not necessarily always, work in tandem. They can therefore be distinct from one another as shown by the following two theories: the direct effect of a Union provision was considered necessary to invoke EU law in order to substitute a national provision and to enforce a subjective right under the ‘invocability of substitution’ theory, whereas it was not required to set aside the conflicting national provision in question without replacing it under the ‘invocability of exclusion’ theory. 164 Although the CJEU never fully embraced these theories and the possible separation of direct effect and primacy, Lenaerts defends this view and advocates in this paper that national law can be set aside, in the case of conflict with Union law, merely on the basis of primacy without the need for the conditions for direct effect to be satisfied. A distinction between substitution and exclusion would consequently not be incompatible with the Court's settled case law. 165
The Court's judgment in Popławski II, nevertheless, finally concluded all academic speculations and confirmed the so-called trigger model of direct effect and primacy. 166 This means that primacy issues arise only in connection with direct effect (rather than on a self-standing basis) and that a national court's obligation to disapply a conflicting national provision based on primacy only arises if the Union law provision at issue also has direct effect. 167 Seeing that President Lenaerts sat on the bench of this Grand Chamber judgment and, based on his academic writings, did not follow this corresponding link between these two principles, we can only assume that judge-rapporteur Constantinos Lycourgos was able to reach successfully a compromise between him (plus possibly other judges advocating this view) and an opposite group; 168 and this, above all, against the abovementioned ‘presiding judge effect’.
In another co-authored paper postdating this decision, President Lenaerts then acknowledges that the autonomy of the Union's legal order implies that it is for the Court to determine how (possibly only prima facie) equally ranking constitutional principles of EU law are to interact with one another. Whilst all EU norms enjoy primacy, not all of them have direct effect, and by drawing an important distinction between these two principles, the Court – in Lenaert's own words – ‘put[…] to rest a long-standing academic debate’, 169 thereby (albeit only descriptively) admitting academic as well as judicial defeat.
Advocates General
Besides its judges, the CJEU can also become a more visible institution through its Advocates General 170 (who are of course not judges, but nonetheless equal members of the CJEU 171 who must act in complete impartiality and independence). 172 In contrast to the more anonymous and collegiate bench of judges, the Advocates General are always an ‘I’, and thus individual persons whose opinions, written in the first-person singular, add a distinctly individual level to the usually unidentified group of judges. 173 It is of course true that the exact influence of their opinions on judgments is difficult to gauge, 174 and their involvement in every single case as a second pair of eyes and an analytical layer is not required in cases raising no new points of law, 175 but this does not mean that the persons behind that office are not visible any more. On the contrary, I would argue, the names of individual Advocates General are today perhaps better known, because they will, in practice, only be called upon in the more complex cases. 176 And in these cases, the Advocate General is expected to present the law succinctly, to propose a solution to the case on its basis, and, ideally, also to provide a broader and critical analysis of the overall case law in the area at hand. Thereby, the Advocate General can bring into play more critical and discursive elements to the decision-making at the CJEU, which to the outside world often appears magisterial 177 and overly academic, as already discussed above. In this regard, Advocates General can have a lasting influence on the making of EU law and leave behind a formidable legal legacy, 178 as – for instance – testified by former Advocate General Francis Jacobs (1988–2006) and his rich and powerful judicial oeuvre. 179 The main reason for this is that their opinions are the result of their own work and that they have, in doing so, much more freedom than the CJEU judges working within the remits of collegiality. The other side of the coin is that this comes at the price of exposure, including critique by the commentariat in professional and academic circles. 180
In the following sections, I will also look at two more examples of how Advocates General publicly show their faces, namely by way of the office of the First Advocate General, and to which extent Advocate General opinions can be regarded as separate or dissenting opinions.
First Advocate General
Perhaps the most visible Advocate General is the First Advocate General, who, to begin with, has the same duties and responsibilities as the other Advocates General and is therefore merely a primus inter pares among them. 181 The holder of this office has, nonetheless, two additional powers that go beyond that of the other Advocates General, namely, first, their competence to assign cases to their peers 182 and, second, their competence to propose that the Court review the decision of the General Court if there are serious risks to the unity or consistency of Union law. 183
More importantly in the context of who the person in this office is, the last years saw a significant reform: whilst before 2020, the First Advocate General was designated by the Court for one year on a rotational basis, 184 they are now elected by their fellow Advocates General for a term of three years. 185 The rotational principle, however, had already been practically discontinued in 2014, when Melchior Wathelet had repeatedly been designated as First Advocate General until 2018. 186 He was succeeded by Maciej Szpunar, who is still in office at the time of writing. 187
To reach agreement among peers with strong characters becomes increasingly difficult if more voices need to be accommodated. This was (and still is) the case, especially after the EU's enlargement in 2004 and 2007, respectively, when more nationalities and other legal traditions had become part of the Union's judiciary, but rapprochement and agreement among the Advocates General thus became more exacting. 188 Daniel Sarmiento tells an interesting anecdote of former Advocate General Eleanor Sharpson, who, having already worked as a réferendaire at the CJEU since 1987, perceived the Court as primarily Western European. In 2006, now as Advocate General, she noticed a conversation in a lift held in Russian which was – for her fellow lift-travellers – a more common and convenient language than French or English. 189 Such a transformed CJEU accordingly benefits, both internally and externally, from a First Advocate General who can unite different nationalities, regions and legal traditions within the Union. This factor definitely speaks in favour of Maciej Szpunar as First Advocate General, for his Polish nationality certainly builds bridges between the older Member States of Western Europe and the newer Member States of Eastern Europe as well as their respective Advocates General. In contrast to Poland which now has a permanent Advocate General, 190 other Eastern European States only have an Advocate General at the Court on a rotating basis, and who are therefore not in the same strong position in the collegium of their peers. This makes the First Advocate General and his or her specific background all the more important. Yet Maciej Szpunar's qualification to build consensus goes beyond his mere Polish nationality. Not only did he study and teach law in Poland, but also in Belgium, the United Kingdom and Italy. 191 Such a truly European vita might have certainly supported his election as First Advocate General. 192
Advocate General opinions as separate opinions?
It is well-known that there are no separate opinions at the CJEU (either as dissenting or concurring with the result, but for different reasons to those of the majority, or a combination of both), since this is prevented by the principle of collegiality in the first place. 193 The introduction of separate opinions has been discussed for many years, 194 in particular to enhance transparency, the rationality of decision-making, 195 and, above all, the paradoxical effect of legitimating the majority by, at least, considering alternative views, even if ultimately rejected. 196 I am not concerned here with these questions, but with the possible effect of such separate opinions, namely that they may lead to a more individualized and personalized perception of their drafters, yet also including the involved dangers, especially when it comes to reappointment by their home Member State and the subsequent confirmation in the Council. 197
After long debates inside the CJEU, a majority of members concluded that separate opinions would profoundly alter the nature and inherent logic of decision-making in Luxembourg. Besides concerns for a potentially negative impact on the quality of judgments by corroding consensus, it was predominantly the fear for a possibly decreasing acceptance of judgments in the Member States once unanimity in the prevailing interpretation of Union law was gone. 198 Exactly for this reason, judgments are extremely uniform, adhere to a strict formal rigour, 199 and seem to follow established templates or text blocks. 200 The question has, nonetheless, not disappeared, and has, to a certain extent, returned in a different form, namely whether it is perhaps tenable to argue that the opinions of Advocates General could be regarded as quasi-separate opinions and thereby make the individual persons in this role more visible. Could this be a crack in the monolithic institution through which any individual separate voices (whether they be dissenting or merely concurring) resounding from beyond the walls of the CJEU in Luxembourg could somehow be heard? 201
A former Advocate General himself, namely Walter Van Gerven (1988–1994), suggested that their opinions served a purpose similar to that of concurring or even dissenting opinions ‘in showing the way in which he believes the Court should follow’, 202 while another former Advocate General, Francis Jacobs, mused that this very role allows for some of the advantages of separate opinions. 203 Interestingly, even the European Court of Human Rights reasoned, comparing the functions of the CJEU's Advocates General to those of the French Government Commissioners, that advisory and separate opinions are, in principle, functional alternatives. 204 In this sense, these opinions by named individuals provide additional resources for interested parties, thus sometimes compensate for the lack of transparency in the process of producing judgments, 205 and continue to shape a larger space for interpretative innovation at the CJEU. 206
Yet another former Advocate General, Michal Bobek, makes short shrift of this argument that the advisory opinions of the Advocates General could be considered to be separate opinions and calls this a ‘popular myth’: such opinions can hardly serve as such dissenting or concurring opinions to the Court's judgments for the simple reason that the Advocates General draft their opinions months before the final judgment will even be deliberated. And even if the opinion is only delivered a couple of days before the actual judgment, 207 the judgment can only position itself against the opinion, but not the opinion against the judgment. 208 Also, from a historical perspective, it is unconvincing to consider the opinions of the Advocates General opinions as separate or even dissenting opinions, as their role is modelled after the French commissaire du gouvernement, who is tasked to act as the representative and legal expert of the government, and not to contradict the judiciary. 209 In the same vein, Advocates General at the CJEU may of course deviate, with good reason, from settled case law, but it is not their inherent responsibility to do so, but to ‘assist’ the CJEU and to ‘make reasoned submissions’. 210
Be that as it may, whether we regard the Advocates General's opinions indeed as separate opinions or not, it is nevertheless true that they reflect individuality and make a person and their name more visible, especially in the legal community. The reason for this is that these opinions demonstrate that an internal debate does exist within the CJEU system, which leaves the Advocates General more perceptible as individuals than the judges.
Single judges at the General Court
As already briefly mentioned above in section 3.A.1, it is – quite surprisingly within the judicial system of the CJEU – possible for the GC to be constituted by a single judge ‘[i]n certain cases governed by the Rules of Procedure’. 211 It goes without saying that such a court formation is arguably best suited to make a judge more visible as an individual in contrast to a more anonymous bench of three or five judges, let alone the Grand Chamber or the full Court. The reason for the introduction of this new court formation in 1999 were concerns regarding the considerable increase of litigation relating to intellectual property rights and the then-Community trade mark, with which a more efficient single-judge formation could better cope. 212 According to Article 29(1) Rules of Procedure of the GC, certain cases may be heard and determined by the judge-rapporteur as a single judge, if the questions of law or fact raised by them lack difficulty, if these cases are of limited importance, and if no other special circumstances arise under the conditions set out in Article 29(3) in conjunction with Article 14(3) Rules of Procedure of the GC.
The decision whether or not a case is delegated to a single judge is made by the three-judge chamber before which the case is originally pending, 213 although this does not happen very often and therefore thwarts the judges’ increased visibility in this respect. Altogether and since 1999, 101 cases were decided by single judges at the GC, with the significant caveat, however, that the last couple of years look rather meagre in this respect: in 2017, no case at all was heard by a single judge; 214 in 2018 five cases (0.49% of all cases completed by the GC that year); 215 in 2019 also five (0.57%); 216 in 2020 only one (0.13%); 217 and in 2021 three (0.32%). 218 Seeing that all of these cases involved disputes regarding an EU trade mark, one might certainly argue that this court formation proves to be a successful addition in terms of making intellectual property litigation more efficient; it fails, nonetheless – even though this is not the purpose of this procedure nor its desired effect – to make judges generally more visible. It thus also raises the question whether this GC formation is, after the most recent CJEU reforms, still sustainable or even required.
Oral hearings
The last option for judges to emerge from the anonymous bench of collegiality I would like to discuss here is their increased visibility and exposure by name during oral hearings. Public hearings in court shall ideally take place, 219 yet the Court may nonetheless decide against them, if it considers that it has sufficient written information to give a ruling, 220 thereby foreclosing any individualization of judges by way of a public oral hearing. If, however, an oral hearing takes place, as it did in a highly publicized and politically controversial dispute such as Hungary's and Poland's (eventually failed) attempt to have the new Conditionality Regulation 221 annulled, 222 judges will most definitely gain some fame among both the parties and the spectators, especially if their questions could be interpreted as challenging or even provocative.
In this very hearing, on 12 October 2021, President Lenaerts gave the floor to his Polish colleague Marek Safjan to ask the representative of the Member State of his own nationality a question. As a reaction to the representative's repeated argument that the principle of the rule of law remains vague and that this issue cannot be resolved on the Union level by the Union legislator or the Court, Judge Safjan asked quite straightforwardly: ‘Do you really mean to say that the rule of law can only be defined with reference to national identity, or does the EU itself have a constitutional identity that contains the rule of law, as stated in Article 6 TEU?’ 223 The Polish representative did not answer the question to the satisfaction of Judge Safjan, after which he reformulated his question: ‘Do you agree that the rule of law is part of the EU's constitutional identity?’ The Polish representative then also rephrased her answer and stated: ‘We do not challenge the importance of rule of law principles. We just think they can – and should – only be concretized at the national level.’ 224
Given this exchange between two compatriots from different ends of the spectrum of opinions on the rule of law, one can argue that such exposure during a public oral hearing is a double-edged sword: on the one hand, Judge Safjan subtly yet courageously defended Union law and its say on the rule of law, even in the Member States, and emerged as an individual, perhaps even a role model, that the legal profession will remember. But on the other hand, it is exactly such exposure that clashes with the matter of renewable tenures that are, after all, subject to the will of the Member States and their governments 225 which might not wish for a critical judge to be reappointed. The practices of the Member States undoubtedly vary to the extent that at least some of them feel bound by the convention that a sitting judge wishing to continue in their role should have their term renewed. 226 Yet this remains a convention, and not a legally binding provision, which means that uncomfortable questions by judges directed at the representatives of their home government could have a negative impact on their career trajectory in Luxembourg.
This is of course not a valid reason to dispense with oral hearings that are crucial in both the external impression of legitimacy the Court wishes to convey and the proper functioning of a judiciary in order to avoid such visibility and exposure of individual judges (in particular now, after the Covid-19 pandemic prompted the Court to embrace technology and start streaming the public hearings of the Grand Chamber online). 227 In fact, it is their duty to ask such inconvenient questions and to uphold the rule of law, and to do so openly and publicly (thus also in line with Article 15(1) TEU and Article 47(2) of the Charter of Fundamental Rights). These considerations should consequently not be regarded as an argument against oral hearings, but, on the contrary, rather an argument in favour of extending the judges’ tenure or making them not renewable in order to bolster their independence from the Member States.
Former CJEU members on the other side of the bench
A last fascinating example of CJEU members entering the limelight can be found in situations where these former members suddenly find themselves on the figurative and literal ‘other side’ of the bench and thus vis-à-vis their former colleagues. The following two instances reveal how CJEU-internal actions can become known to the general public when former individual members act as litigants and/or critics of the CJEU.
Advocate General Sharpston and Brexit
An interesting case that brought an individual (former, or in this case, in the process of being dismissed) Advocate General as a litigant to the fore was a dispute between (the already briefly aforementioned) 228 Advocate General Eleanor Sharpston from the United Kingdom and the Union institutions. Seeing that the Treaties would cease to apply to the United Kingdom on 1 February 2020 by virtue of Article 50(3) TEU, the conference of the representatives of the governments of the Member States confirmed, by declaration of 29 January 2020, that also any ongoing mandates of members of institutions, bodies, offices and agencies of the Union, nominated, appointed or elected in relation to the United Kingdom's Union membership would also automatically end as of the withdrawal date. This also included Eleanor Sharpston, as a British national, and her role as Advocate General, which would be taken over by Greece as the next eligible Member State in accordance with the protocol order. 229 As a consequence of Brexit and this subsequent decision by the Member States, Advocate General Sharpston would therefore, before the official end of her term, be removed as a member of the Court.
Sharpston refused to accept this decision and brought an action for annulment before the General Court against three different entities and their respective decisions: the Conference of Representatives on the aforementioned declaration, 230 the Court of Justice itself for a letter sent by President Lenaerts to the Council inviting it to appoint a successor 231 and the Council for appointing this successor, 232 Athanasios Rantos. 233 Yet, in order to avoid becoming a cause célèbre, she first requested anonymity for the proceedings, which she then asked to be lifted 234 once the first rumours and newspaper articles were published on this matter. This put her very much in the spotlight, even after the end of her premature tenure as Advocate General. All actions were declared inadmissible by the General Court, as were all appeals before the Court, 235 thus barring Sharpston from being readmitted to the Union judiciary, but even more so at the centre of academic attention and the question whether her removal itself was in accordance with the rule of law or not. 236
Former General Court Judge Dehousse and the Pinxten affair
The other example also pertains to a delicate matter, as it affects the reputation of both the Union institutions in general and that of the CJEU in particular. In the limelight, we find former judge of the General Court Franklin Dehousse (2003–2016) whose publications 237 as well as legal actions against the Court of Justice itself pertain to the need for reform of the CJEU, increased transparency and access to documents. As a litigant, Dehousse attempted to have access and make public documents containing the travel costs of the EU institutions’ members, but his actions were partly rejected in the first 238 and fully rejected in the second case. 239
More recently, Dehousse – not as a litigant, but as a severe critic – also drew the public's attention to the so-called Pinxten affair on the widely read Verfassungsblog. 240 In this essay, he speaks out on misfunctions within the EU institutions exemplified by the systemic corruption of Karel Pinxten, a former appointee to the European Court of Auditors. 241 After being investigated by the Court of Auditors itself, the European Anti-Fraud Office (OLAF), and the Luxembourg authorities, the Court, inter alia, confirmed the lawfulness of Pinxten being deprived of two thirds of his pension by the Court of Auditors because of his criminal activities. 242 Seeing that this was a judgment rendered by the full Court and President Lenaerts’ name is missing from the list of judges, it is rumoured that he might have recused himself due to his close ties to Pinxten. 243
As a consequence, Dehousse explicitly criticized in November 2021 that the judgment, rendered by the end of September 2021, was only available in French and Dutch and had not been translated yet into the other official EU languages (in clear violation of Article 40 Rules of Procedure and the duty to publish all judgments in all official languages). 244 This gives, admittedly, a distorted picture of the inner workings of the Court, but since the judgment is now available in all official languages, the delay might have been due to other factors involved in the translation, 245 and not any entanglements between the judges and Pinxten, respectively.
Conclusion
In this article, I intended to demonstrate that despite the overarching principle of collegiality at the CJEU that transforms all judges into an amorphous and anonymous justice-delivering bench, there are certain situations where this prima facie faceless court can show its face, or rather the faces of its members, and thus allows – metaphorically and literally – a more discernible aspect to be put to an otherwise abstract institution. The original presumption that the CJEU always is faceless and anonymous must therefore be rejected.
It is, primarily, the President and the Vice-President that can become more visible and identifiable public personae in both the general public and the legal profession, but we should nonetheless not forget the judge-rapporteurs, the Advocates General and the single-judge formation at the GC. And in academia, we also take note of the publications by members of the CJEU that – indisputably bound by the principles of judicial independence, integrity, dignity, impartiality, loyalty and discretion – help inform the ivory towers of the theoretical world of the practicalities of how a court and its members think, deliberate and eventually act and decide. This is also the point where certain flaws might hide which former members tried to make public through their litigation against the CJEU itself.
This paper should consequently not be interpreted as a push for more visibility – as it remains questionable whether that is desirable or not, especially given the political pushback by Member States against their judicial appointees – but as proof that such visibility at the CJEU exists, although it is sometimes not very obvious and hence difficult to discern. Such visibility can sometimes enhance the legitimacy of a court as long as it does not turn into undue political exposure and endangers its proper functioning. The principle of collegiality, deeply anchored in the civil law tradition, remains central to the proper functioning of the CJEU by shielding the judges against their home Member States as well as the other Member States in the Council which could always try, for political gains, to undermine the CJEU's authority by employing the old maxim of divide et impera against the judges and to exploit divisions in their ranks – although in reality, this is often reduced to a mere fiction as one can usually discover who the judges (and especially judge-rapporteurs) or Advocates General were behind the case law. Visibility among judges is therefore, to a certain extent, a positive trait, but it remains – with good reason – restricted to a bare minimum.
Footnotes
Acknowledgements
I would like to thank Christian Breitler and Lorin Wagner for their valuable input in discussing the original idea as well as shaping the different sections of this paper, and the anonymous reviewers for their helpful and constructive comments.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
