Are Advocates General Political? Policy Preferences of EU Member State Governments and the Voting Behavior of Members of the European Court of Justice

Abstract

This paper investigates whether members of the European Court of Justice (ECJ), as is often assumed, behave in accordance with legalistic models of judge behavior. So far, different from courts in the U.S. And elsewhere, there is no conclusive evidence that the background of individual judges influence the decision-making of the Court. There are two possible explanations for this. First, it seems possible that the unique institutional culture at the Court has created an environment which minimizes the influence of such factors. Second, it seems possible that these effects exist, but that they have so far gone largely unnoticed, because the non-disclosure of individual votes and non-random case assignment pose great challenges to any attempt to identify them. This paper focuses on the impact of the political preferences of Member State governments on the decision-making of the Advocates General, who are judge-like members of the ECJ. I develop a formal test to answer whether a relationship exists between the policy preferences of EU Member State governments with regard to European integration, and the decision behavior of Advocates General appointed by these governments. This test formalizes the intuition that, if one Advocate General shows a high probability of deviating from a certain chamber in an integration-friendly direction, while another Advocate General shows a high probability of deviating in an integration-critical direction from decisions by the same chamber, one can infer that the decision standard applied by the first Advocate General is more integration-friendly than that of the second Advocate General. I find that Advocates General appointed by governments with prointegration preferences are on average more likely to deviate from the Court in a pro-integration direction.