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Trust & Democracy in the European Judicial Order

Trust & Democracy in the European Judicial Order. The Advocate General – Securing Trust in the CJEU? CELS , November 2011. ‘Assistants’ to the judges?. ‘as a doctor helps a sick patient…’ Make issues easy to understand Reduces workload of judges Ensures thoroughness of approach

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Trust & Democracy in the European Judicial Order

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  1. Trust & Democracy in the European Judicial Order The Advocate General – Securing Trust in the CJEU? CELS, November 2011

  2. ‘Assistants’ to the judges? • ‘as a doctor helps a sick patient…’ • Make issues easy to understand • Reduces workload of judges • Ensures thoroughness of approach • A first step laying out an independent path • ‘the AG jumps first’ • Transparency for ECJ and rulings • Not necessary but a beneficial addition • Good to have a different opinion • Adds innovation and dynamism to jurisprudence

  3. What is the AG Opinion? • Advisory (1) • Shadow judgement (2) • Neither (12) • ‘the opinion is an opinion’ • ‘an opinion, not more, not less’ • ‘a paper sui generis’ • ‘a place for new suggestions’ • a second layer of analysis • ‘the first word in a conversation’ • a preparatory document integral to judgement • of ‘judicial nature and purpose’ but not binding • ‘beginning of a decision, even if rejected’

  4. Building a relationship of trust between EU citizens and their institutions • Article 13 TEU: • 1. The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions. • The Union's institutions shall be: the European Parliament, the European Council, the Council, the European Commission, the Court of Justice of the European Union, the European Central Bank, the Court of Auditors.

  5. The corporatist court • The decision as the voice of the Court • The judge as ‘messenger‘ • Individual voices as damaging (clarity, collegiality and independence) • The US Supreme Court in the past? The CJEU today?

  6. To dissent or not to dissent? • ARGUMENTS IN FAVOUR: • reinforcement of collegiality (all POVs heard); • strengthening of public confidence in the judiciary; • education of judges and observers (future majority); • clarification of reasoning by articulation of an opposing view; • exploration of the nuances of an argument. • ARGUMENTS AGAINST: • Weakens: • the court by undermining unanimity; • judicial decisions by undermining legal certainty; • judgements by obviating the need to find consensus; • judges by undermining the secrecy that protects independence. • are inefficient and waste time • the tone may ‘detract from the legitimacy of a court.’

  7. Separate Opinions at the ECtHR • A unanimous judgment; • A majority judgment: • A dissenting opinion by a single judge; • A concurring opinion of a single judge; • A partly dissenting opinion by a single judge; • A partly dissenting and partly concurring opinion by a single judge; • A joint dissenting opinion by two or more judges; • A joint concurring opinion by two or more judges; • A joint partly concurring and partly dissenting opinion by two or more judges

  8. The deliberative court • Central role of the court in democracy • The court as an authoritative independent forum for debate • Judicial decisions as the voices of individual judges • The judge as ‘legal democrat’ • Individual voices contribute to democracy and authority

  9. The AG Opinion as a separate opinion? - Independent and objective - internal voice • ‘The Opinion of the Advocate General ... is not an ‘opinion addressed to the judges or to the parties which stems from an authority outside the Court...Rather, it constitutes the individual reasoned opinion, expressed in open court, of a Member of the Court of Justice itself.' • ‘an opinion, not more, not less’ • A place for new suggestions • Beginning of a decision, even if rejected • A critical voice in the CJ

  10. The AG opinion on separate opinions • FOR: • Would be ‘great progress’ for CJ • Prohibition hard to understand • Good to show different opinions • Good when EU has a common legal culture • Possible only when CJEU members have permanent tenure • Enhance creativity and dynamism of CJ • AGAINST: • Would diminish AG role • Would weaken CJ decisions/ following cases • Bad idea at this point • Would make judges visible and thus vulnerable • Colleagues will have less reason to listen to each other • ‘The EU is not the USA’ • Bad for the recipient of justice: coherence is better • AG = critical voice of CJ

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