Monday, August 31, 2015

The Faceless Court

Angela Huyue Zhang King's College London – The Dickson Poon School of Law investigates The Faceless Court.

ABSTRACT: This Article is the first to study EU competition law by examining the behavior of judges and their law clerks (officially entitled référendaires) at the Court of Justice of the European Union, against the unique institutional settings in Europe.  The study is both quantitative and qualitative.  It provides the most comprehensive and up-to-date analysis of the background of judges and advocates general appointed to the Court since 1952.  It is also the first to provide a comprehensive statistical analysis on the background of référendaires.  As the background of référendaires is not publicly disclosed, the author hand-collected data from LinkedIn and created a dataset of 103 former référendaires and 74 existing référendaires working for the Court.  The study also benefits from a field trip the author conducted in May 2014 and extensive interviews with former and existing members and staff at the Court.

The Article has several major findings.  First, the quality of EU judges varies significantly, due to a lack of procedural safeguards for appointment and a high salary that attracts political appointees.  As a consequence, some judges are dominated by their référendaires.  Second, both judges and référendaires, especially those at the General Court, face increasingly heavy caseloads due to a number of inherent institutional defects.  This increases the risk for judges and their référendaires to compromise quality for quantity.   It also means that more work must be delegated to référendaires.  As a consequence, the voices of référendaires are amplified.  Third, référendaires come from a relatively homogeneous background and most of them are Francophones trained in the French legal system.   Moreover, judicial formalism increases the value of career référendaires, who become powerful conservative forces that resist changes and reform.  Furthermore, the revolving door between the Court and the Commission helps the latter exert influence on the Court from the inside and gain a comparative advantage in litigation.  Fourth, the French legal tradition, with its emphasis on empowering the State rather than protecting individual liberty, has a dominant influence on the Court.  Fifth, the Court’s practice of issuing a single, collegial decision encourages free-riding, increases pressures for judges and référendaires to conform and suppresses dissent, as illustrated in the Microsoft case.  Sixth, the division of labor between the lower court and the higher court creates divergent incentive structures for judges and référendaires working at different levels.  While a small group of judges and référendaires at the General Court have the incentive to innovate the formalistic case law by introducing more economic analysis, they are unable to do so as its ruling could be struck down by the higher court.  At the same time, while the higher court is in a position to innovate, many judges and référendaires there lack the incentive to do so as competition is peripheral to the constitutional law debate.

This Article further sheds light on understanding why the differences between US antitrust law and EU competition law have persisted, despite powerful forces of globalization and convergence.  As institutional change is path-dependent, evolution within each of these systems is only gradual.  The Article therefore provides a basis for predicting that such divergence might persist in the future.  Achieving a sound understanding of the Court is the key to legal reform.  The Article concludes by contributing to the ongoing debate about how to reform the Court.

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