The Faceless Court

Abstract

This Article is the first to examine the behavior of judges and their law clerks (officially entitled referendaires) 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 referendaires. Moreover, the high turnover rate of EU judges hampers their productivity, and increases their dependence on the referendaires. Using a sample of data hand-collected from LinkedIn, the Article demonstrates that referendaires are drawn from a relatively closed social network. There is no open platform for recruiting referendaires and the requirement of French as the working language significantly limits the pool of eligible candidates. The inefficiency of the referendaire labor market results in less competition, leading many referendaires 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 referendaires 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.