The Court of Justice of the European Union, arguably the world’s most powerful international court, stands powerless in the face of overflowing dockets. Or does it?
A team of scholars based in Oslo, Gothenburg and Florence answer this question in a new EUI working paper entitled 'That’s an order!'
The main theme of the working paper came about almost by happenstance. The research team, while working on a comprehensive database of all decisions of the Court of Justice of the European Union (the Court) and listening to Leonard Cohen, stumbled upon an instrument called the Orders of the Court of Justice.
Co-author and EUI Professor of Law Urška Šadl explains: “We were not able to ‘neatly’ categorise 5,000 documents following the established classification and coding protocols that we used to classify other documents, like judgments and opinions. On a closer inspection, these Orders proved to be anything but tedious and technical procedural documents that could be omitted from the database without any harm.”
In fact, they reflected the subtle ways in which the Court arranged its procedures to increase its output and provide timely justice to the litigants. Procedures are the ‘technical’ part of the administration of justice, and they allow the Court to reconcile conflicting demands of timely justice and sound legal argument. In the European Union context, the conflict emerged most acutely in the form of paralysing delays in the preliminary reference procedure. This procedure is designed to help national courts grappling with questions of interpretation and validity of European Union law in their daily work. If they are in doubt they can, and sometimes must, ask the Court for an official and binding interpretation. The problem was solved (or so we thought) by the introduction, in 1999, of Article 104(3) (and since 2012, Article 99) of the Rules of Procedure: The European Court of Justice could reply to repetitive and legally undemanding preliminary questions by issuing a reasoned order in lieu of a judgment, in a simplified and much faster procedure.
The working paper 'That’s an order' is the first publication to examine the use of Article 99 and its implications. Drawing on the abovementioned dataset of some 5,000 orders of the European Court of Justice, the authors find that the legal criteria imposed by Article 99 yield to strategic concerns. The Court resorts to orders to halt repeated questions from the courts of a single Member State, and to clear the docket when a policy area experiences a sudden increase of litigation. Over the years, the Court has moreover gained significant autonomy to shape Article 99 according to its needs and in line with its priorities.
The authors interpret these findings as the Court’s quest for legitimate authority through carefully administered conversation with national courts in volume and scope. The implications are significant.
“Hierarchical elements, decreased deliberation and reduced participation in the decision-making process are changing the terms of judicial cooperation in Europe. This transformation is happening under the democratic radar, with minimal legislative oversight.”
'That’s an order!' is co-authored by Stein Arne Brekke, Lucia Lopez Zurita (two PhD researchers at the EUI), Urška Šadl (Professor in the EUI’s Law Department) and Daniel Naurin (a former Braudel fellow at the EUI and now Professor of Political Science at PluriCourts, Oslo and Gothenburg, and Director of the Arena Centre for European Studies, University of Oslo). It is just one product of a long and fruitful research collaboration between the three universities, funded by the Swedish Research Council and the EUI Research Council. The main objective of the collaboration is a database of the judgments of the Court of Justice. The authors hope that it will provide researchers from law and political science with comprehensive information about the judgments of the Court of Justice and the relevant information about its Members.