This book aims to offer new perspectives in the legal study of the Court of Justice of the European Union (CJEU), by reversing some traditional ones. In the multidisciplinary field of European studies, the Court of Justice has mainly been analysed in the light of its central role in the process of continental integration: i.e. the central role of the Court and its case law for the evolution of the EU legal order.1 Moreover, the CJEU has been traditionally studied by specialists for its important role as an agent of comparative law: i.e. as the quintessential example of a supranational court which is a ânaturalâ user of comparative material and comparative analysis of law.2
On the contrary, my proposal is to study the evolution of the Court itself, rather than that of the EU legal order in its judge-made dimension. The evolution of jurisprudence and interpretative activity of the CJEU will constitute a background of my research, but not its principal focus. Rather, my monograph will address as its main topic of study the structure and the organization of the Court itself, taken as an institution: and it will do so by looking at several institutional aspects of its structure and organization, selected and constructed as a complete range of symptomatic figures of judicial institutionalization.
I will approach this analysis through a comparative lens, not, however, through a review of the comparative method employed by the Courtâs judges, but rather by showcasing how the development and the institutional evolution of the CJEU happened through a selective internalization of comparative influences. This process took place in such a way that the Courtâs institutionalization can be considered mimetic: that is, able to engage and internalize the solicitations which came from EU Member States influences of different legal traditions and responding to global challenges in relation to the increasing role of the international forms of judicial review and the international judicial review bodies. Thus, I will look at the comparative influences in the Courtâs institutional evolution: to demonstrateâin a sloganâhow the institutional development of the CJEU has been culturally influenced in order to be functionally efficient.
1.1 The Structure
The CJEU has often been described as âarguably the most powerful international courtâ in the world3 and as the protagonist of a strong dynamic of âself-empowermentâ.4 Historically, the basis of this analysis has been on doctrinal aspects of the Courtâs activity: to name a few, the revolutionary use of its procedures, the interpretative methods it adopted, and the substantive detachment it shaped from the loose forms of traditional international law. The evolution of the power of the Court has been traditionally studied through an analysis of its powerful, innovative doctrinal choices and of its capacity to shape the evolution of EU law.5 However, the Courtâs success and its process of âself-empowermentâ have never been measured against its intrinsic adaptive capacity as an organization vis-Ă -vis the peculiar plural environment in which it has acted. âIt is widely accepted that the Court of Justice has playedâand continues to playâa key role as the motor of European integrationâ6 is a classic adage framed in a telling Aristotelian jargon. In fact, EU integration is a motion process, and the CJEU played the role of its primum movens. But in such Aristotelian terms, the question arises whether the CJEU is an unmoved mover of the motion of integrationâfrom which an initial movement derives, but which is not moved by others, already perfectly done and with no sign of becomingâor is a living institution that made its way not only by fostering but also by adapting to the different stages of a progressive integration. In other words: it is well-known that the studies of European integrationâwhich is, in itself, a processâare a locus amoenus of evolutionary theories (also in the legal perspective) focusing on the transformation of political inter-institutional relationships.7 But how much of the successful evolution of an institution, of its âself-empowermentâ, its gain of authority and legitimacy, is based on the capacity to engage and internalize the solicitations to its structure and organization? This works aims to provide answers to this question and highlight this parallel and equally important aspect in the evolution of the CJEU.8
In this respect, the objective of my study is to highlight the way in which an increasingly important and increasingly debated judicial body like the CJEU, traditionally not a priority of EU institutional reform, has changed over time and evolved through positive law amendments and the will of the Herren der VertrĂ€ge, but also, and decisively, through wise and often spontaneous recalibrations of institutional characteristics. It is commonplace to argue that âcomparative insights have certainly informed the text of the Treaties and the design of the European institutionsâ,9 but the academic literature did not go beyond scarce or anecdotal remarks on this point; similarly, the high degree of autonomy of the EU judicial systemâthat has even been defined as a form of âjudicial self-governmentââis a broad and relevant yet âlargely understudied phenomenonâ.10 The proposed book aims at filling these gaps in the literature.
The analysis will be structured as follows: after an introduction to the research and its situation in the tradition of European and comparative studies, five chapters will look at five different specific but central and paradigmatic aspects of the structural, organizational and institutional development of the Court in the decades since its foundation. In a kind of logical order of institutionalization, I will look first of all at a historical reconstruction of the genesis of the CJEU, since the times of its foundation, to highlight how the design of the Court and its powers was heavily influenced by the existing judicial forms present in the higher courts of the Member states at that time, which thus constituted the first important and established comparative models, and ânaturallyâ influenced the first negotiators and players in the field. I will also emphasize also how, in shaping the ECJ, domestic models of judicial review prevailed over original forms of international judicial review, which were taken into account. Then, the work will analyse what logically follows in structuring and organizing a court: thus, the appointment of its members, its human resources. It will highlight how the system of selection of the CJEUâs judges, advocates general and personnel has been for several decades a neglected and even mysterious topic, covered by the traditional and taken-for-granted discretion of the States in the selection of international judges; but that the situation has decisively changed with a new procedure established pursuant to Article 255 TFEU introduced by the Lisbon Treaty. In this change as well, comparative influences were essential: a certain specific and apt model of selection was adopted, in conformity with international trends, and it is proving to be so apt to influence national models in turn. The following chapter, again in order of logic problematisation in the structuring of the Court, would analyse the problem of transparency in the works of the CJEU, considered as a âdeliberative institutionâ,11 both in the traditional terms of its discussed modalities of internal deliberation and in the new terms of the openness of its judicial activities and proceedings (a theme recently raised by scholars for the first time).12 In both senses, comparative influences were crucial. The next step would be to investigate the modalities and techniques of docket control and the problems of allocation of judicial activity and resources by the CJEU. These problems are essential for the actual work of the Court, that has often considered âvictim of its own successâ13 especially in terms of an increasing overload of cases, and they are often influenced by tensions that originate from the Member States and their legal cultures, on the point of the very conceptualisation of what docket control can and should mean, by the different approaches of common law and civil law countries to the question of the abstractness of the preliminary ruling procedure of Article 267 TFEU,14 or by the various exigencies coming from different contexts with regard to the CJEUâs action. The last chapter will look at the stylistic modalities of the decisions of the CJEU, considering them as the final product, the output, of the structure and organization of the institution, directly influenced by these latter as well as stratified cultural aspects. Some final remarks will conclude the work, summing up the results of the analysis, and further reflecting on the idea of mimetismâthe capacity of the CJEU, as a supranational institution, to evolve by facing several organizational challenges and by solving them through a selective internalization of internal and external comparative lessons. Mimetism will be examined as both a phenomenological and methodological concept, with particular importance in the supranational setting.
1.2 Some Key-Concepts: Autonomy, Authority, Mimetism
The work will not be a mere description of the (per se significant) institutional evolution of the CJEU. On the contrary, it aims at looking at such evolution in connection with the institutional success of the Court and its âself-empowermentâ moves. In this respect, some key-concepts will constitute...