The Politics of Citations at the ECJ: Policy Preferences of EU Member State Governments and the Citation 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, drawing on recent work on U.S. courts, investigates the relationship between the political background of members of the ECJ and their citation behavior. It shows that judges appointed to the Court by an integration-friendly Member State government are more likely to cite judgments authored by judges from a similar political background? Just like in the context of U.S. courts, non-random opinion assignment potentially threatens the validity of these results. In order to mitigate these effects, I use an empirical strategy building on comparing the citations in two documents that were produced in the same case (i.e., the judgment and the opinion of the Advocate General). The intuition behind this strategy is that the Advocate General helps distinguish more legally relevant from less legally irrelevant citations: if we observe that, among the cases cited by the Advocate General, the Judge Rapporteur is more likely to cite cases written by authors that are ideologically close to his own position, this result cannot just be explained by case assignment and differences between more and less relevant decisions. The findings in this paper provide evidence for the hypothesis that the political preferences of Member State governments are reflected in the behavior of the members of the ECJ.