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Selecting Europe’s judges: time for more democratic legitimacy?

On 4 November 2013, eminent European scholars and practitioners gathered at the College of Europe (CoE) in Bruges to discuss the process of appointment of judges to the Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECtHR). In his opening address, Jörg Monar (Rector of CoE) stressed the importance of legitimacy of appointments to the European courts in the light of the growing questioning of the European project.

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The first panel was devoted to appointment mechanisms for the ECtHR, with particular emphasis on the involvement of the Parliamentary Assembly of the Council of Europe in the process.

Appointing judges to the Court of Justice of the EU

Henri De Waele (Nijmegen) presented the mechanisms for appointments, with particular reference to the so-called ‘255 Panel’ established on the basis of Article 255 TFEU. Damian Chalmers (London School of Economics) analysed the changing patterns of appointments to the CJEU since the Lisbon Treaty, especially the growing number of judges drawn from national supreme and constitutional courts. He also pointed to the lack of tax lawyers, IP lawyers and criminal lawyers at the CJEU, despite its growing powers in those fields. Jean-Marc Sauvé (president of the ‘255 Panel’) presented an account of its functioning and argued in favour of keeping its proceedings confidential.

‘Cross-cutting issues’: transparency and representativeness

Armin Von Bogdandy (Max Planck Institute for Public Law) called for the practical application of the provisions on democratic principles in the Union (Art. 9-12 TEU) in the process of appointing CJEU judges, criticising the current procedures on account of their lack of transparency. Iyiola Solanke (Leeds) made a case for the social representativeness of judiciaries, and Alberto Alemanno (Paris) presented detailed legal arguments in favour of granting public access to the documents of the ‘255 Panel’.

‘A broader outlook’

Georges Vandersanden (CoE) presented the process of appointments to the EU Civil Service Tribunal, Aida Torres Perez (Pompeu Fabra) stressed the link between judicial independence and legitimacy, and Daniel Kelemen (Rutgers University) shared the US experience of judicial appointments.

Conclusions from the College of Europe

Michal Bobek (CoE) emphasised the importance of controlling the ‘point of entry’ to the highest courts of Europe. Emphasising the contrast between the more democratic procedure of appointment of ECtHR judges and the ‘technocratic’ procedure of appointment of CJEU judges, he nevertheless praised the quality of recent CJEU appointments.

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