The Inferior Quality of ECJ Decisions

31.10.07

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Justice Ginsburg recently gave an interesting speech on the topic of the role of dissenting opinions. In the speech, she briefly compared the differences between common law and civil law traditions in the drafting of decisions that I think deserves some discussion:

Our practice of revealing dissents, it bears emphasis, is hardly universal. In the civil law tradition that holds sway in Europe, and in countries once controlled by a continental power, courts issue a collective judgment, written in an impersonal style. The author of the judgment is neither named nor otherwise identifiable. Disagreement, if it exists, is not disclosed. That pattern prevails without exception in French tribunals, and it is also followed by the European Court of Justice, the High Court of the European Union, seated in Luxembourg.

The British common law tradition lies at the opposite pole. In appeals in that tradition, there was conventionally no “opinion for the court” disposing of a case under review. Instead, the judges hearing the matter composed their own individual opinions which, taken together, revealed the court’s disposition. Changes in British practice and in some European tribunals have brought these divergent systems closer together. The European Court of Human Rights, for example, seated in Strasbourg, publishes signed dissenting opinions. But, by and large, the historical traditions hold.

Our system occupies a middle ground between the continental and the British patterns…. Opinions that speak for the Court remain the custom today. But unlike courts in civil law systems, and in line with the British tradition, each member of the Court has the prerogative to speak out separately.

What is right for one system and society may not be right for another. The civil law-style judgment is suited to a system in which judges train for and embark on career service soon after university graduation. Promotions in such systems generally depend upon the recommendation of longer-tenured, higher-ranking judges. Common law judges, in contrast, are recruited at middle age from the senior ranks of the practicing bar or of law faculties.

In civilian systems, the nameless, stylized judgment, and the disallowance of dissent, are thought to foster the public’s perception of the law as dependably stable and secure. Our tradition, on the other hand, safeguards the independence of the individual judge and prizes the transparency of the process of wielding judicial power.

Having spent years reading opinions of numerous international tribunals, I have fairly strong opinions on the issue of the comparative quality of judicial decisions. In my humble opinion, decisions of the European Court of Justice are far inferior in quality to decisions of other international tribunals. The European Court of Justice (which is modeled on the French Cour de Cassation) offers the worst of all worlds: short, deductive judgments rendered by a court with too many members in an unsigned manner that prohibits concurrences or dissents.

If you read enough of them, I think it is a fairly common conclusion that ECJ decisions are shallow, bland and unclear. Of course, this is not because the judges themselves lack depth or sufficient intelligence. (For example, the decisions of the Advocates General are typically of high quality.) But with 13 judges sitting as the ECJ Grand Chamber, writing in languages other than their mother tongue, and adopting the civil law tradition of unsigned, univocal decisions, it is extraordinarily difficult to write a good opinion in which every judge on the case can agree. The results are “LCD” decisions—shallow opinions that offer a bland statement articulating a rule that offers the baseline principle that reflects the “least common denominator” of agreement. (This case and this commentary offer a specific example of deficient ECJ drafting).

I don’t think one can attribute the problem to any one particular fact. Rather, it is the sum of several minor problems. The problem is not simply that the decisions are unsigned. Awards of international arbitral tribunals are regularly signed by the entire panel without any indication of authorship. But the arbitration culture has a tradition of allowing dissents. And traditionally a panel is composed of three arbitrators or less.

Nor is the problem simply the large number of judges. Many international tribunals—including the International Court of Justice and the European Court of Human Rights—have a large number of judges on any particular case. But the freedom to dissent increases quality, as does the accountability associated with putting one’s name to an opinion.

I also don’t think that the problem is simply unsigned opinions or the absence of dissents. The WTO Appellate Body does not have dissents (although sometimes WTO panels do). And WTO Appellate Body decisions do not identify the author of the decisions. But their decisions are of higher quality than ECJ decisions in part because each Appellate Body decision has three—not thirteen—members that must sign off on the decision. (Admittedly, some ECJ decisions are written with panels of three, but the quality still suffers).

One scholar put it nicely in this article when he said that ECJ decisions are written in:

cryptic, Cartesian style. . . whose pretense of logical legal reasoning and inevitability of results is not conducive to a good conversation with national courts. In fact, despite their abandonment of the single-sentence syllogism, ECJ decisions continue to be unsigned, univocal, magisterial and largely deductive documents that reveal decidedly less than they might: distressingly often, the Court’s shorthand reference to, and axiomatic application of, such systemic policies as “the effectiveness” of Community law, “legal certainty and uniformity,” and/or the “legal protection” of Community rights tend to leave much – and at times, virtually everything – unsaid. … To a degree that is hard to square with the massively important issues at hand, ECJ decisions thus often remain remarkably uninformative and hence discursively unaccountable.