Selecting Europe's Judges : A Critical Review of the Appointment Procedures to the European Courts

The past decade has witnessed change in the ways judges for the Court of Justice of the European Union and the European Court of Human Rights are selected. The leitmotif has been securing greater professional quality of the judicial candidates, and, for this purpose, both European systems have put in place various advisory panels or selection committees that are called to evaluate the aptitude of the candidates put forward by the national governments. Are these institutional reforms successful in guaranteeing greater quality of the judicial candidates? Do they increase the legitimacy of the European courts? Has the creation of these advisory panels in any way altered the institutional balance, either horizontally within the international organisations, or vertically, between the respective organisation and its Member States? Above all, has the spree of 'judicial comitology' as currently practised a good way for selecting Europe's judges? These and a number of other questions are addressed in this topical volume in a comparative and interdisciplinary prospective. The book is structured into two elements: first, how the operation of the new selection mechanisms is captured and analyzed from different vantage points, and secondly, having mapped the ground, the book critically and comparatively engages with selected common themes, examining the new mechanisms with respect to values and principles such as democracy, judicial independence, transparency, representativeness, and legitimacy Cover Selecting Europe’s Judges A Critical Review of the Appointment Procedures to the European Courts Copyright Contents List of Contributors List of Abbreviations Prologue: The Changing Nature of Selection Procedures to the European Courts 1 The Topic 2 The Structure 3 The Themes 4 Acknowledgements 1 Not Quite the Bed that Procrustes Built: Dissecting the System for Selecting Judges at the Court of Justice of the European Union 1 Introduction 2 Staffing the System: The Selection of Selectors 3 Preparing Nominations to the EU Courts: National Pre-selection Procedures 4 Practical Dynamics: The Modus Operandi of the 255 Panel and the CST Committee 5 Position Within the Union’s Institutional Architecture 6 The System in Action—Experiences So Far 7 Conclusion 2 Judicial Performance, Membership, and Design at the Court of Justice 1 Introduction 2 Judicial Performance and the False Dilemma of Judicial Independence and Judicial Accountability 3 The Transitional Period and the Establishment of a Template for the EU Legal Order 4 Constitutional in Form and Functional in Substance: The Institution of an Autonomous Legal Order from 1970 Until Maastricht 5 Managing and Generalizing the Legal Order: From Maastricht to Lisbon 6 Integration and Rights: Legally Onwards from Lisbon? 7 Conclusion 3 Selecting the European Union’s Judges: The Practice of the Article 255 Panel 1 Objectives Pursued by Establishing the Panel 2 The Operation of the Panel 3 Evaluation of the Role of the Panel 4 The Real Test—How to Contribute to a Better Justice: The Experience of the Civil Service Tribunal 1 A Specific Committee for a Specific Tribunal 2 Questions and Reflections from the Practice 3 Some Final Considerations 5 (S)electing Judges for Strasbourg: A (Dis)appointing Process? 1 Introduction 2 Selecting a Judge for Strasbourg: The Convention’s Legal Framework and the Problematic Practice 3 The Council of Europe’s Side of the Selection Process 4 The National Side of the Process 5 Conclusion 6 Selecting Strasbourg Judges: A Critique 1 Introduction 2 Breadth and Depth of the Problem 3 The Good 4 The Bad 5 The Ugly 6 How to Attract Top Candidates? 7 Conclusion 7 On the Democratic Legitimacy of Europe’s Judges: A Principled and Comparative Reconstruction of the Selection Procedures 1 Introduction 2 Concurring Democratic Principles in the EU and the Council of Europe 3 Judicial Selection for the ECtHR and the CJEU: A Democratic Reconstruction 4 Conclusion 8 Can Judicial Selection Secure Judicial Independence?: Constraining State Governments in Selecting International Judges 1 Introduction 2 The Independence of the International Judiciary 3 The Dominance of State Governments in Selecting International Judges 4 Mechanisms for Constraining State Governments 5 Concluding Remarks 9 How Transparent is Transparent Enough?: Balancing Access to Information Against Privacy in European Judicial Selections 1 Introduction 2 Comparing the Panels’ Roles in Selecting Europe’s Judges 3 How the Advisory Panels are Transforming the Selection of European Judges 4 The Challenge of Transparency in Judicial Selection 5 Towards More Transparency in Judicial Selection 6 Conclusion: Transparency as a Recipe for Effectiveness, Legitimacy, and Accountability of Judicial Selection 10 Spillovers in Selecting Europe’s Judges: Will the Criterion of Gender Equality Make it to Luxembourg? 1 Introduction 2 The Concept of Legitimacy: As Elusive as an Eel 3 Horizontal Spillovers Between the CJEU and the ECtHR 4 Vertical Spillovers 5 Conclusion 11 Selection, Appointment, and Legitimacy: A Political Perspective 1 Introduction 2 Do European Courts Face a Legitimacy Crisis? 3 Maintaining the Democratic Pedigree 4 Conclusion 12 The Legitimization Strategies of International Judges: The Case of the European Court of Human Rights 1 Introduction 2 Overcoming the Problem of Legitimacy 3 The Legitimization of International Courts: The Case of the ECtHR 4 Conclusion: Implications for Judicial Selection to the ECtHR Epilogue: Searching for the European Hercules 1 Hercules. Or Hermes? Or Was It Pallas Athena? 2 The 255 Panel and the Advisory Panel: A Comparison 3 The ‘More Precisely Explained’ Criteria 4 The Remaining Thorn: Transparency and Control 5 Thou Shalt be Made in (Whose?) Image 6 The Paradox of Success? Open Competitions, Fewer Candidates? 7 Coda (Française) Select Bibliography Index The Past Decade Has Witnessed Changes In The Ways Judges For The Court Of Justice Of The European Union And The European Court Of Human Rights Are Selected. The Common Aim Has Been Securing Greater Professional Quality Of The Judicial Candidates. For This Purpose, Both European Systems Have Put In Place Various Advisory Panels Or Selection Committees That Are Called To Evaluate The Aptitude Of The Candidates Put Forward By The National Governments. Were These Institutional Reforms Successful In Guaranteeing Greater Quality Of The Candidates? Might They Have Any Positive Impact On The Legitimacy Of The European Courts? Has The Creation Of The Expert Advisory Panels In Any Way Shifted The Institutional Balance, Either Horizontally Among The Various Institutions Of The Respective International Organization, Or Vertically Between The Organization And Its Member State? Above All, However, Is The Spree Of 'judicial Comitology' As Currently Applied A Good Method Of Selecting Europe's Judges? These And A Number Of Other Questions Are Addressed In This Volume In A Comparative And Interdisciplinary Perspective. First, The Volume Describes For The First Time In Depth The Operation Of The New Selection Mechanisms From Different Vantage Points, Including Not Just Academic, But Also Practitioners' Points Of View. Second, Having Mapped The Ground, It Critically Engages With Selected Common Themes In A Comparative Way, Analyzing The New Mechanisms With Respect To Values And Principles Such As Democracy, Judicial Independence, Transparency, Representativeness, And Legitimacy--unedited Summary From Book Jacket. Prologue : The Changing Nature Of Selection Procedures To The European Courts / Michal Bobek -- Not Quite The Bed That Procrustes Built : Dissecting The System For Selecting Judges At The Court Of Justice Of The European Union / Henri De Waele -- Judicial Performance, Membership, And Design At The Court Of Justice / Damian Chalmers -- Selecting The European Union's Judges : The Practice Of The Article 255 Panel / Jean-marc Sauvé -- The Real Test : How To Contribute To A Better Justice : The Experience Of The Civil Service Tribunal / Georges Vandersanden -- (s)electing Judges For Strasbourg : A (dis)appointing Process? / Koen Lemmens -- Selecting Strasbourg Judges : A Critique / David Kosař -- On The Democratic Legitimacy Of Europe's Judges : A Principal And Comparative Reconstruction Of The Selection Procedures / Armin Von Bogdandy, Christoph Krenn -- Can Judicial Selection Secure Judicial Independence? : Constraining State Governments In Selecting International Judges / Aida Torres Pérez -- How Transparent Is Transparent Enough? : Balancing Access To Information Against Privacy In European Judicial Selections / Alberto Alemanno -- Spillovers In Selecting Europe's Judges : Will The Criterion Of Gender Equality Make It To Luxembourg? / Bilyana Petkova -- Selection, Appointment, And Legitimacy : A Political Perspective / R. Daniel Kelemen -- The Legitimization Strategies Of International Judges : The Case Of The European Court Of Human Rights / Mikael Rask Madsen -- Epilogue : Searching For The European Hercules / Michal Bobek. Edited By Michal Bobek. Includes Bibliographical References (pages 310-320) And Index. Against the backdrop of the recent changes in the selection mechanisms to the Court of Justice of the EU and the European Court of Human Rights, this book provides not only unique insights into how the new systems operate, but also their critical and comparative evaluation.