5 Colum. J. Eur. L. 101 (1998)
Sally J. Kenney. Associate Professor of Public Policy and the Director of the Center on Women and Public Policy at the Humphrey Institute of Public Affairs at the University of Minnesota.
In view of the far-reaching significance which the Court has obviously assumed for governments and private individuals alike in the Member States, one may be justified in asking who are the justices wielding such extensive power and responsibility? How are they appointed and under what conditions can they be removed from office? What are their duties and privileges, and what measure of judicial independence do they possess?
This paper attempts to answer systematically Feld’s first question-a question that remains unanswered yet relevant more than thirty-five years after he posed it-and begins to answer the rest. While many have debated the merits and legal reasoning of the European Court of Justice’s (ECJ) rulings, few, if any, have studied how judges are chosen or who they are or compared Member States’ selection procedures. Interestingly, the catalyst for the beginning of such a discussion has come from the European Parliament (EP). In its quest for greater power, the EP has demanded that it play a role in selecting members of the ECJ and criticized the Member States’ failure to appoint women.
Article 167 of the Treaty of Rome states that the judges and advocates general shall be appointed by common accord of the governments of the Member States for a term of six years. In practice, each Member State government follows its own internal selection procedure and simply announces the result to the Council of Ministers (Council) when a vacancy occurs. Because the ECJ is a hybrid, a supranational court that is part international and part constitutional, Member State judicial selection procedures display an interesting combination of conventional judicial selection procedures and systems for choosing European Community appointees more generally.4 There appears to be little public scrutiny of appointments to the ECJ within the Member State and there is none within Community institutions.
This article describes the members of the ECJ and looks for patterns in Member States appointments. Although I shall argue that who judges are is important, I do not intend to overestimate the importance Europeans have placed on this issue. Europeans are more likely to accept a sharp line between law and politics than Americans and this perspective may neutralize efforts to make the ECJ more representative. Despite the efforts of Parliament, there has been little demand for opening up the selection process to either greater public participation or even greater public scrutiny.