Building legitimacy: strategic case allocations in the Court of Justice of the European Union

Abstract

Does the President of the Court of Justice of the European Union (CJEU) make strategic use of his members? Cases in the CJEU are prepared by a "judge-rapporteur" who acts as an agenda setter. I argue that the President builds the Court's legitimacy by strategically allocating cases to select judges.Using original data on 9623 case allocations , I argue that suspicions about judges' political accountability can polarize already politicized debates. The President circumvents such dynamics by appointing a rapporteur whose government holds moderate political preferences. However, he considers governmental preferences and disagreements mainly when case law is not yet developed. This may also contribute to explaining judges' individual-level specialization, which arguably favors the construction of a coherent case law.

The CJEU Database Platform: Decisions and Decision-Makers

“…More research should focus on the role of the Court's leadership and its organizational hierarchy. This includes the President's powers with regards to assigning judges to chambers, and assigning cases to Judge-Rapporteurs and chambers (Hermansen 2020). It also includes the role of the General Meeting of the Court, which decides on important procedural questions (such as oral hearings, AG opinions, and chamber size), and the Chamber Presidents, whose agenda setting and mediating powers have become more significant after reforms to the Court's rules of procedure.…”

“…In addition, in compliance cases, the President of the Court refrains from assigning a Judge-Rapporteur from the member state in question. In the last few decades, the same holds for preliminary rulings (Hermansen 2020). Does this norm of avoiding conflicts of interest extend to the other judges on a panel?…”

“…As previously explained, the assignment of judges to proceedings follows from the appointment of the Judge-Rapporteur. Recent research has shown that the President selects Judge-Rapporteurs to avoid conflicts of interests, especially when cases are of political interest to member states (Hermansen 2020). The President may also avoid certain Judge-Rapporteurs due to the panel composition that would ensue.…”

“…By providing data on the key features of cases, decisions, and decision-makers at the CJEU, which is the court at the heart of the process of judicialization in Europe (Alter 2010), we aim to improve the opportunities to study a range of questions central to the field of judicial politics. We believe this will facilitate better empirical research on the CJEU and open the door to studying new questions about legal mobilisation in the EU (e.g., Hofmann and Naurin 2020; Pavone 2022), judicial bargaining and the internal politics of the Court (e.g., Frankenreiter 2017Frankenreiter , 2018Cheruvu 2019;Hermansen 2020;Fjelstul 2022), the politics of judicial appointments (e.g., Bobek 2015), the sources and impact of judges' attitudes (Vauchez 2012;Larsson and Naurin 2019), and the sensitivity of the Court to its political and social environment, including the politics of noncompliance and legislative override (e.g., Carrubba, Gabel, and Hankla 2008;Alter 2010;Carrubba and Gabel 2015;Martinsen 2015;Larsson and Naurin 2016;Larsson et al 2017;Fjelstul and Carrubba 2018;Blauberger and Martinsen 2020). Previous research on the CJEU has long debated the power and autonomy of the Court in relation to the EU member states, but theory development has been hampered by the treatment of the Court as a unitary actor.…”

That's an Order! How the Quest for Efficiency Is Transforming Judicial Cooperation in Europe

“…For example, the 2008 financial crisis led to numerous references from a handful of Member States relating to abusive clauses in consumer mortgage loans. Second, one could expect a degree of specialization in the Court (Hermansen, 2020). Specialization means that a sudden increase of cases in the relevant policy area could overwhelm the specialized members of the Court, motivating the use of adjudicating orders to avoid delays.…”