Trustees or Agents

Compared to other international Courts and Tribunals, the European Court of Justice (ECJ), which is the highest court of the European Union (EU), has an extraordinarily powerful position. Similar to a constitutional court, the ECJ protects the individual rights of Union citizens, controls how other EU institutions use their competences, and may declare legal norms inapplicable if they conflict with EU law. The ECJ has promoted an even closer union between EU member states. Its judgements carry strong political implications, since they directly affect the legislation of the EU and its member states. This is demonstrated by many salient examples, including rulings on the right to strike, state support for renewable energy, gender equality, measures against tax avoidance, access to social security benefits abroad, and extraditions. Despite the ECJs undisputed political relevance, little is known about the legal-political orientations held by ECJ judges and about the role of these orientations when new judges are nominated and appointed to the ECJ. Appointments to other high courts, such as the United States Supreme Court, are highly politicized and contested. The legal-political orientations of Supreme Court candidates are an important factor in their appointment, not least because they shape the subsequent decision-making at the bench. Considering the political significance of the ECJ, similar dynamics may be expected when it comes to the appointment of ECJ judges. Yet we lack important data to verify this expectation scientifically. In contrast to, for example, the Supreme Court, the internal deliberations of the ECJ are secret. The positions taken by individual ECJ judges thus remain concealed and give no indication of each judges leaning. To overcome this obstacle, the project surveys experts of European law for their perception of the orientations held by ECJ judges. With the data thus obtained it will become possible to study the political dynamics behind ECJ appointments. This will generate important insights into the relation between the ECJ and the EU member states, which are in charge of individually nominating and jointly appointing new ECJ judges. The project focuses on the working hypothesis that appointments follow a logic of ideological congruence: The orientations of ECJ judges mirror the nominating governments partisan complexion. This would contradict an alternative expectation, according to which member states care more about the political independence of their appointees than their ideological congruence, because they want to protect the European rights of EU citizens from political interference. The project moreover examines the influence of constitutional traditions, institutional procedures, and the political environment on ECJ appointments. Drawing on the data generated by this project, future research may also investigate the impact of the orientations held by ECJ judges on their decision-making.