The Faceless Court

46 Pages Posted: 8 Aug 2015 Last revised: 8 Apr 2016

See all articles by Angela Huyue Zhang

Angela Huyue Zhang

The University of Hong Kong - Faculty of Law

Date Written: October 26, 2015

Abstract

This Article is the first to examine the behavior of judges and their law clerks (officially entitled référendaires) at the Court of Justice of the European Union. It identifies a number of serious issues affecting court performance. First, the Article finds that the Court's high judicial salaries and lack of procedural safeguards for EU judicial appointments attract political appointees. As a consequence, some judges who are selected are not competent to perform and are dominated by their référendaires. Moreover, the high turnover rate of EU judges hampers their productivity, and increases their dependence on the référendaires. Using a sample of data hand-collected from LinkedIn, the Article demonstrates that référendaires are drawn from a relatively closed social network. There is no open platform for recruiting référendaires and the requirement of French as the working language significantly limits the pool of eligible candidates. The inefficiency of the référendaire labor market results in less competition, leading many référendaires to stay longer at the Court. The revolving door between the Court and the European Commission raises serious conflict issues, as the Commission is able to exert influence on the Court from the inside and gain a comparative advantage in litigation. In addition, the Court’s practice of issuing a single, collegial decision encourages free-riding, increases pressures for judges and référendaires to conform and suppresses dissent, as illustrated in the Microsoft case. Last but not least, the division of labor between the General Court and the Court of Justice could lead to divergent incentives for judges working at different levels of the Court.

Keywords: judicial behaviour, EU law, competition, antitrust, judges, legal tradition, path dependence, institution

JEL Classification: K21, K41, K40, L44, D23, D73

Suggested Citation

Zhang, Angela Huyue, The Faceless Court (October 26, 2015). University of Pennsylvania Journal of International Law, Vol. 38, No. 1, 2016, King's College London Law School Research Paper No. 2015-45, TLI Think! Paper 13/2016, Available at SSRN: https://ssrn.com/abstract=2640861 or http://dx.doi.org/10.2139/ssrn.2640861

Angela Huyue Zhang (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://www.angelazhang.net

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