Two New Papers by Mathilde Cohen: on "French Capture" of Linguistic Design of Multinational Courts, and the "Bureaucratization" of the CJEU and ECtHR

Network member Mathilde Cohen (UConn) has alerted us to two new papers, which we understand are stirring some interesting discussions on both sides of the Atlantic.  The first is entitled "The Linguistic Design of Multinational Courts: The French Capture" and is forthcoming in I-Con.  The second is entitled "Judges or Hostages? The Bureaucratization of the Court of Justice of the European Union and the European Court of Human Rights" and is forthcoming in the forthcoming collective volume edited by Fernanda Nicola and Bill Davies, entitled European Law Stories (Cambridge). Both pieces are available on SSRN (here and here respectively) and the abstracts can also be found below.

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The Linguistic Design of Multinational Courts: The French Capture

This Article discusses the importance of language in the institutional design of European and international courts, which I refer to as “linguistic design.” What is at stake in the choice a court’s official or working language? Picking a language has far-reaching consequences on a court’s composition and internal organizational culture, possibly going as far as influencing the substantive law produced. This is the case because language choices impact the screening of the staff and the manufacture of judicial opinions. Linguistic design imposes costs on non-native speakers forced to use a second (or third) language and confers a set of advantages on native speakers. It has profound implications on judgments as it imports a set of writing conventions that live on even as the institution becomes more cosmopolitan. Using the example of French at the Court of Justice of the European Union, the European Court of Human Rights, and the International Court of Justice, I argue that granting French the status of official language has led French lawyers and French judicial culture to disproportionately influence the courts’ inner workings. This is what I call the “French capture.”

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Judges or Hostages? The Bureaucratization of the Court of Justice of the European Union and the European Court of Human Rights

Court staff occupy a critical position in the administration of justice around the world. They typically represent a diverse corps of subordinated professionals whom judges delegate responsibilities for multiple aspects of their adjudicative and administrative functions. The Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) are no strangers to this practice. The size and influence of their non-judicial personnel is striking, raising the question of whether judges have become hostages to the bureaucracy in their own courts. Drawing on the emerging field of the sociology of European institutions, this chapter argues that the two supranational European courts exhibit a number of typically bureaucratic traits, such as organization by functional specialty, hierarchical relationships, impersonality and consistency in decision-making.


What can account for this level of bureaucratization? Along institutional design, I single out as explanatory factors the specific constraints imparted by international adjudication which generate various asymmetries between the judges and the staff. The chapter hypothesizes that the rise of a European court bureaucracy may paradoxically foster elements of non-bureaucratic culture. Judges and staffers are not separated by an invisible (and impassable) wall. Both the CJEU and ECtHR hire domestic judges to work as staffers. At the same time, a growing number of judges are recruited from among the rank of their court’s staff or other European bureaucracies. This growing professional endogamy could make judges captives to their staff, but I suggest instead that it facilitates exchanges across the judge-staff divide, leading to more opportunities for intra-court deliberations.

Network on SSRN: Dimitry Kochenov, "EU Law without the Rule of Law: Is the Veneration of Autonomy Worth It?"

We are pleased to welcome to the network Dimitry Kochenov (Groningen), who this year will be a fellow and visiting research scholar in the Law and Public Affairs Program at Princeton.  Dimitry has alerted us to a new piece he has posted on SSRN, entitled "EU Law without the Rule of Law: Is the Veneration of Autonomy Worth It?"  This article is forthcoming in the Yearbook of European Law and is also directly relevant to our ongoing discussions on the accession of the EU to the ECHR.  The abstract is below and the full paper can downloaded here.

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This is a critical analysis of the Rule of Law in the EU, concluding that the Union is not driven by the Rule of Law as an institutional ideal. Instead, the Union deploys the “Rule of Law”, viewed to a large extent through the lens of the autonomy of the EU legal order, to shield itself from potential internal and external contestation. This is precisely the contrary to what the classical understanding of the Rule of Law would imply. The Union thus suffers, it is argued, as a result of misrepresenting legality at the EU level, selling it to friendly observers under the label of the “Rule of Law”, while compelling reasons exist to distinguish the two. To do so, Gianluigi Palombella’s vision of the Rule of Law as an institutional ideal is employed, implying that the law – gubernaculum – should always be controlled by other law – jurisdictio – lying outwith the sovereign’s reach. Unable to boast any jurisdictio expressly intended as the legal aspect of positive law beyond the internal market logic programmed into the Treaties, the EU emerges as a somewhat rudimentary legal system, with no strong guarantees of legal non-domination extending beyond the Treaty text. The paper demonstrates the clear negative consequences of the prevalent deficient understanding of the Rule of Law for both constitutional levels: the EU and the Member States. One of the curious outcomes of the current reading of the Rule of Law in the EU is that this principle can be presented as demanding to trump the values of the Treaties as well as of the national constitutions in the name of upholding formal organisational considerations seemingly underpinning the EU legal system, resulting in anarchical confusion.

Paul Craig on “EU Accession to the ECHR after Opinion 2/13” (Fri. Sept 18)

On Friday September 18th, from 12:30-2:00pm, the Jean Monnet Center at NYU will host a lunchtime event with Paul Craig (Oxford), who will speak about "EU Accession to the ECHR after Opinion 2/13." Also joining the discussion will be network members Piet Eeckhout (UCL), Turkuler Isiksel (Columbia), Mattias Kumm (NYU), and Peter Lindseth (UConn).

If you are in the New York area and would like to attend, please RSVP by email to jeanmonnet@nyu.edu. Lunch will be served from 12:30 PM, the presentation will begin at 1:00 PM and the discussion should end at 2:00 PM.  Location:  1st Floor Faculty Lounge, 22 Washington Square North, New York, NY 10011

More from Daniel Halberstam on EU Accession to the ECHR

Daniel Halberstam (Michigan) has alerted us to a new piece he's posted on the Verfassungsblog on the topic of EU accession to the ECHR (for earlier interventions, see here).  Entitled "Foreign Policy and the Luxembourg Court: How to Address a Key Roadblock to EU Accession to the ECHR", the first paragraph is below and the remainder can be read here.

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The Court of Justice of the European Union recently declared the European Union cannot join the European Convention on Human Rights (ECHR) unless the Luxembourg court has jurisdiction over all questions of EU law that reach the Strasbourg court – including Common Foreign and Security Policy. The reasons behind this decision have been discussed elsewhere. The big question now is, how to proceed? [Continue reading here]

The Network on SSRN: Turkuler Isiksel, "European Exceptionalism and the EU's Accession to the ECHR"

Network member Turkuler Isiksel (Columbia) has a new paper on SSRN, exploring and criticizing the strand of "European exceptionalism" that she identifies in the attitude of the Court, and in Opinion 2/13 in particular.  The abstract is below; the full text, entitled "European Exceptionalism and the EU's Accession to the ECHR," is available on SSRN here.

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In a December 2014 opinion, the Court of Justice of the European Union (CJEU) torpedoed the draft accession agreement that would have enabled the EU to accede to the European Convention on Human Rights (ECHR) on the grounds of its incompatibility with the EU’s constitutional structure. The opinion has been widely criticized as evidence of the CJEU's unwillingness to be bridled by another international court and its anxiety over losing its self-proclaimed primacy within Europe’s juridical space. This short essay argues that the Court's reasoning is symptomatic of an hubristic attitude of "European exceptionalism" that pervades the self-understanding of EU institutions, not least the Court itself. According to the exceptionalist narrative, the enlightened character of EU institutions exempts them from the normative constraints designed to check more imperfect forms of political organization such as nation-states. The paper submits that this is a more alarming, not to mention ironic, stance for a supranational Court to espouse than either institutional self-importance or exaggerated anxiety over constitutional incompatibility.

Follow-up: Daniel Halberstam on EU-ECHR Accession / Symposium on the Verfassungsblog

We're pleased to let readers know that the Verfassungsblog is currently hosting an online symposium to discuss Daniel Halberstam's recently posted article on the ECJ's Opinion 2/13 on EU-ECHR accession.  This article builds on remarks that Daniel made here at NYU in a panel discussion on January 30.  Among the participants is Thomas Streinz, a Hauser Global Scholar at NYU, who also participated in the January 30 discussion.  Below is the introduction posted by the editors at the Verfassungsblog, and the full symposium can be found here.  Readers and network members should take a look.

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In a highly provocative article, Daniel Halberstam goes against the trend of sharp criticism of Opinion 2/13 by offering a constitutional perspective to explain the basis for the Court’s objections to the draft accession agreement. But the article also argues that accession must proceed to save the Union and identifies several ways to accomplish that goal. We invited a group of scholars to comment.

The Network on SSRN: Daniel Halberstam, "'It's the Autonomy, Stupid!' A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and a Way Forward"

Network member Daniel Halberstam (Michigan) has a new piece posted on SSRN, entitled "'It's the Autonomy, Stupid!' A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and a Way Forward".  This piece builds on the presentation that Daniel made at the Jean Monnet Center at NYU in January.  It will also soon appear in the German Law Journal and be the subject of a symposium on the Verfassungsblog.  The abstract can be found below and the full article can be downloaded here.

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Opinion 2/13 of the European Court of Justice (striking down the draft agreement on accession to the ECHR) has been widely derided as “unsubstantiated,” purely “self-interested,” and “playground politics.” This Article disagrees with that assessment. The Article provides the first comprehensive legal analysis and reconstruction of the Opinion’s many objections to show why the Court’s concerns are mostly warranted. At the same time, however, the Article explains why accession to the ECHR is not only important for human rights, but also vital to save the European Union itself. Finally, the Article points the way forward, arguing for changes (though not all those the Court demands) that must be, and can be, made to allow accession to proceed.

Panel Discussion at NYU Law School (Fri, Jan 30): Accession of the EU to the ECHR after Opinion 2/13

Last year ended with a major set-back for the accession of the EU to the ECHR. On December 18, 2014, the European Court of Justice delivered its long awaited Opinion 2/13 on the accession agreement, declaring it to be incompatible with the EU Treaties. Opinion 2/13 has been met with fierce criticism in the blogosphere (see, e.g., here, here, here, here, here, here, here, here, and here). It raises a range of questions relating to the autonomy of EU law, the ECJ's alleged monopoly for human rights protection in EU law matters, and of course the future of the accession process. Will Article 6(2) TEU remain an unfulfilled obligation?

To discuss these and other questions, the Jean Monnet Center at NYU Law School will hold a lunch-time discussion on Friday, January 30, 2015 in the lounge of 22 Washington Square North. Thomas Streinz (Hauser Global Scholar, NYU) will provide a short introduction, network member Daniel Halberstam (Michigan) will offer remarks., and network member Peter Lindseth (UConn, Senior Emile Noël Fellow at NYU this term) will chair.

Lunch will be served from 12:00 PM onwards, the presentation will begin at 12:30 PM and the discussion should officially end at 2:00 PM (but could of course be continued informally over coffee).

If you are in New York and interested in attending, please RSVP to jeanmonnet@nyu.edu.