The ECJ: The French Bifurcation Reworked

Abstract

Abstract Like the Cour de cassation of France, the European Court of Justice (ECJ) maintains two different judicial discourses, that of its judicial decisions, and that of its Advocates General (AGs). However, the ECJ puts an important twist on its French predecessor: it publishes both discourses in every decided case. The ECJ's simultaneous publication practice obviously produces a serious effect on the types of judicial arguments and reasoning that are deployed in each sphere. Both discourses are public discourses; the disjunction between the two is therefore available for all to see. Perhaps as a result, the ECJ approach softens the bifurcation to a significant extent: neither discourse takes as pure a form as does its French counterpart. Although still highly magisterial and deductive, the collegial ECJ decision does not rival the oracular syllogisms of the Cour de cassation's judicial decision. Although the ECJ's Reporting Judges and AGs adopt explicitly purposive and teleological interpretive approaches, they do not tend to deploy the kind of free-wheeling judicial argumentation oriented towards equiy and substantive justice that characterises so much of the hidden French judicial discursive sphere.