The Mimetic Evolution of the Court of Justice of the EU: A Comparative Law Perspective

418 Pages·2020·4.337 MB·English

by  Leonardo Pierdominici

The Mimetic Evolution
of the Court of Justice
of the EU
A Comparative Law Perspective
Leonardo Pierdominici
The Mimetic Evolution of the Court of Justice
of the EU
Leonardo Pierdominici
The Mimetic
Evolution
of the Court of Justice
of the EU
A Comparative Law Perspective
Leonardo Pierdominici
Dipartimento di scienze giuridiche
Alma Mater Studiorum - Università of Bologna
Bologna, Italy
ISBN 978-3-030-47863-6 ISBN 978-3-030-47864-3 (eBook)
https://doi.org/10.1007/978-3-030-47864-3
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Acknowledgments
This book is a revised version of the PhD dissertation which I wrote and
defended at the European University Institute of Florence. I am grateful
tothewholeEUICommunityandtheItalianMinistryofForeignAffairs
forhavinggrantedmethebestpossibleenvironmentfordoctoralstudies.
Specialthanksareduetothosewhohelpedandinspiredmeinthefirst
steps of my academic career, in Bologna and Florence: Susanna Mancini,
Miguel Poiares Maduro, Loïc Azoulai. Without their guidance, I would
have been lost.
I owe a huge debt of gratitude to Giuseppe Martinico: a passionate
academic, a mentor, a friend.
I would like to thank Bruno de Witte and Laurent Pech who, as
members of my PhD jury, gave me detailed and thoughtful comments
which I tried to address in subsequent work.
This book was written in many different locations. My thanks go to
the administrative staff of the Universities that hosted me: the EUI,
the University of Michigan, the Alma Mater Studiorum–Università di
Bologna.
Along this journey, I greatly benefitted from discussions with many
colleagues, and in particular with Samo Bardutzky, Francesco Biagi,
Lidia Bonifati, Carlo Maria Cantore, Giacomo Delledonne, Giacomo
Di Federico, Federico Fabbrini, Elena Ferioli, Filippo Fontanelli, Kasia
Granat, Daniel Halberstam, Neil Komesar, Enrico Legnini, Andrea
Lollini, Leandro Mancano, Zurab Matcharadze, Alessandro Martinuzzi,
v
vi ACKNOWLEDGMENTS
François-Xavier Millet, Francesco Paniccià, Francesca Raimondo, Bosko
and Milena Tripkovic.
All my other friends in Bologna, Florence, Macerata deserve credit as
well.
The book is dedicated to my family.
Contents
1 Introduction 1
1.1 The Structure 2
1.2 Some Key-Concepts: Autonomy, Authority, Mimetism 4
1.3 The Situation of the Research 8
1.3.1 Mimetism as a Potential Link Between Cultural
Studies and Functionalism in Supranational
Law 20
1.4 The Work Plan 27
2 The Foundation and Structuring of the Powers of the
Court 45
2.1 Choice of Form: The Original Debate
on the Creation of a Court for the European
Communities 46
2.2 Design of Powers of the Court and National Influences 55
2.2.1 The “Administrative” Competences 56
2.2.2 Transformation of the Preliminary Reference
Procedure 66
2.3 Different Perspective, Same Dynamics: The Establishment
of the Doctrines of Primacy and Direct Effect 75
2.4 The Original Choices in the Establishment
of the Court of Justice as a Form of Improvement
of Its Authority 82
vii
viii CONTENTS
3 The Appointment of Members of the Court 99
3.1 Selection of Judges: Comparative Trends at the National
and International Level and Their Rationale 101
3.1.1 The Historical Rise of Judicial Selection Models 101
3.1.2 Models of Apical Court Selections, in Europe
and at the International Level 107
3.2 Selection of Judges in Luxembourg: Liberal
Supranationalism as a Reaction to Pure
Intergovernmentalism? 120
3.3 The Evolution of Judicial Appointments
as a Form of Improvement
of the Court’s Authority 132
4 The Deliberation of the Court and Its Transparency 149
4.1 Openness as Access to Deliberation: Comparative
Remarks 155
4.2 Openness as Access to Deliberation: The Debate for the
European Court (also with Reference to the Advocates
General and Their Opinions) 168
4.2.1 OldandNewDebatesontheAdoptionofDissenting
Opinions in Luxembourg 168
4.2.2 The Advocates General and Their Role in the
Transparency of the Court’s Deliberations 176
4.3 Openness as Access to Court Documents 184
4.3.1 Access to Court Documents as a Second Dimension
of Openness 184
4.3.2 The International Debate, the Comparative
Paradigms 187
4.3.3 OpennessasAccesstoCourtDocuments:TheDebate
in European Union Law 191
4.4 Dimensions of Openness and the Authority
of the Court of Justice 201
5 Docket Control at the Court of Justice 229
5.1 The European Court of Justice and Its Docket 232
5.2 Docket Control as the Use of Certiorari and Procedural
“Passive Virtues” 239
CONTENTS ix
5.3 The Possibility of Adopting Other “Passive Virtues”
in Luxembourg 246
5.4 Docket Control as a Result of Substantive Interpretative
Choices, Delegation and Efficiency 258
5.5 Preliminary Reference Procedure, Unitas, Diversitas 266
5.6 Looking for Neutral Institutional Solutions 279
5.7 TheEvolutionofDocketControlasaFormofImprovement
of the Court’s Authority 284
6 The Style of Court Decisions 317
6.1 The Style of the Court’s Decisions Within the “Fabrication”
Process of EU Law 318
6.2 The Style of the Court’s Decisions as Culturally Shaped 320
6.3 The Style as Shaped by the Machinery of the Court
and the Plurality of the EU Legal Order 328
6.4 The Style Decisions and the New Factors of Change 334
6.5 TheEvolutionofJudgementStyleasaFormofImprovement
of the Court’s Authority 337
7 Conclusions 351
7.1 The Autonomy and Authority of the Court in Its
Evolution 354
7.2 Mimetism as Phenomenon and a Method in the Plurality
of the EU Legal Order 360
Bibliography 371
Index 409
CHAPTER 1
Introduction
This book aims to offer new perspectives in the legal study of the Court
of Justice of the European Union (CJEU), by reversing some traditional
ones. In the multidisciplinary field of European studies, the Court of
Justice has mainly been analysed in the light of its central role in the
processofcontinentalintegration:i.e.thecentralroleoftheCourtandits
caselawfortheevolution oftheEUlegalorder.1 Moreover,theCJEUhas
been traditionally studied by specialists for its important role as an agent
of comparative law: i.e. as the quintessential example of a supranational
court which is a “natural” user of comparative material and comparative
analysis of law.2
On the contrary, my proposal is to study the evolution of the Court
itself,ratherthanthatoftheEUlegalorderinitsjudge-madedimension.
The evolution of jurisprudence and interpretative activity of the CJEU
will constitute a background of my research, but not its principal focus.
Rather,mymonographwilladdressasitsmaintopicofstudythestructure
andtheorganization oftheCourtitself,takenasaninstitution:anditwill
do so by looking at several institutional aspects of its structure and orga-
nization, selected and constructed as a complete range of symptomatic
figures of judicial institutionalization.
I will approach this analysis through a comparative lens, not, however,
through a review of the comparative method employed by the Court’s
judges, but rather by showcasing how the development and the institu-
tionalevolutionoftheCJEUhappenedthroughaselectiveinternalization
© The Author(s) 2020 1
L. Pierdominici, The Mimetic Evolution of the Court of Justice
of the EU, https://doi.org/10.1007/978-3-030-47864-3_1