A Sense of Common Purpose. On the Role of Case Assignment and the Judge-Rapporteur at the European Court of Justice
forthcoming in Researching the European Court of Justice. Methodological Shifts and Law's Embeddedness (Mikael Rask Madsen, Fernanda Nicola & Antoine Vauchez eds.).
19 Pages Posted: 28 Aug 2020
Date Written: August 25, 2020
This contribution deals with the assignment of cases to reporting judges and judicial formations at the European Court of Justice (ECJ). EU lawyers generally consider the ECJ’s system of case assignment to be one of the most problematic features in the Court’s decision-making process. They perceive a strong tension with the right to a fair trial. In this contribution, I aim to understand why the Court maintains a system that has been under severe attack for a long time. By closely analyzing the practice of case assignment between 2003 and 2019, I argue that the ECJ’s assignment system is an important mechanism for the Court’s institutional success. It has allowed the Court to maintain a sense of common purpose, a strong and persistent idea of its mandate as a guardian of the effectiveness and primacy of EU law. I identify three key functions case assignment performs. First, supporting jurisprudential stability and continuity by creating an ‘elite group’ of judges who writes the bulk of the most important ECJ decisions. Second, integrating new ECJ judges through gradually assigning them more difficult cases thereby structuring a learning process for becoming a full-fledged ECJ judge. And third, the ECJ’s system of case assignment has helped to maintain what is generally lost in courts of the ECJ’s size: a place where all 27 ECJ judges and 11 Advocates General are informed on all incoming cases, jointly engage in systematizing the ECJ’s case law and framing the Court’s agenda.
Keywords: European Court of Justice, case assignment, judge-rapporteur, court president, judicial authority, socialization, elite formation, right to a fair trial
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