Public Participation before the Court of Justice of the EU: Enhancing Outside Judicial Participation via Amicus Curiae Briefs 

Abstract

This article assesses the participatory dimension of the EU judicial system against increasing demand for civil society's participation before the Court of Justice of the European Union. First, it explores the judicial participatory opportunity structure before the CJEU, that is the various legal remedies foreseen in the EU legal order. Second, it examines the realities of judicial practices open to both parties and third parties to a dispute by identifying the structural conditions preventing them from gaining access to the Court. It also documents the emergence of a new, informal practice of 'shadow' amicus curiae briefs aimed at countering limited outside third-party participation. Third, it assesses whether the extant CJEU's opportunity structure available to outside parties to a dispute is in line with the Treatyenshrined participatory imperative stemming from the principle of openness-Article 11 TEU ('take into account citizens' views)-, that of equality-Article 9 TEU ('equal attention to all stakeholders') and Article 13 TEU ('an institutional framework which 'serve citizens' interests)-, and that of participation under Article 10(3) TEU ('Every citizen shall have the right to participate in the democratic life of the Union'), as they apply to the EU judicial system. Fourth, it argues that these principles require the CJEU to re-evaluate the current judicial framework to ensure that the EU judicial system appropriately addresses not only individual and societal interests when those are parties to a dispute but also when, albeit equally affected, they find themselves outside of it. Ultimately, it demonstrates that the practice of amicus curiae briefs may provide a suitable means to not only compensate for the for limited standing-including in third-party interventions-, but also to broaden the Court's access to the dispersed and untapped expertise and greater civil society participation in court proceedings, thus legitimizing the CJEU's output and throughput.