Not All that Glitters is Gold - The Covert Failings of the EU’s Court of Justice

Professor Henri de Waele

MPILux Working Paper 4 (2019)

Abstract: The Court of Justice of the European Union (CJEU) is widely hailed as a success story. Indeed, the life of the CJEU, as well as its contemporary position, hardly offer support for the thesis that a debacle has occurred in the traditional sense of the term. The current paper however opts for a broader understanding of that notion, indicating a collection of shortcomings that have gradually accumulated and persist up to the present day. The paper moreover suggests that the flaws are largely covert instead of overt, something that may well explain the lack of focused inquiries so far. To underpin these contentions, the analysis proceeds from a contemporary vantage point, consciously incorporating a historical dimension. Hereby, attention is devoted to four aspects that are believed to qualify as defects: the intermittent tug-of-war between the supranational and national judiciaries since the early 1960s; the sustained imperfections of the judicial selection and appointment process; the constantly variable quality of the case law; the internal pressures and agitations popping up since the creation of the Court of First Instance in the late 1980s. The findings demonstrate how every success story has its darker sides, with the CJEU constituting no exception to that rule.

Keywords: European Union (EU); Court of Justice of the European Union (CJEU); administration of justice; judicial activism; legal pluralism; selection of judges; judicial appointments; quality of judgments; judicial authority