31 Oct The Inferior Quality of ECJ Decisions
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.
Roger, This is a wonderful post and a fascinating issue that you raise, which has been much discussed by comparative lawyers. I would disagree with you on one, but I think rather important point. You say that the problem with ECJ judgments is in their (low) quality; I would say that this just begs the question of how you define ‘quality’, i.e. what is it that you expect from a good judgment. I totally agree with you that ECJ judgments, as well as civil law judgments as a general matter, are shallow. They indeed usually have little to no reasoning for what they hold. My favorite example is the recent judgment of the Cour de cassation which held that same-sex marriage is not permitted in the French legal system. As you can see from the Court’s summary of appellant’s pleadings, they challenged the definition of marriage as between a man and a woman by invoking Arts. 8 and 14 (privacy and non-discrimination) of the European Convention on Human Rights. Whatever you can say of that argument, it is certainly not a frivolous one, and merits careful consideration and discussion. But how does the Court deal with it? It simply says,… Read more »
I want to further the discussion. There are many different ways that civil law and common law courts in each of their traditions write their decisions. I have read decisions from many common law countries in Asia as well as North America and Europe and other decisions from common law, civil law, mixed and sharia decisions over the years. Judges do things in different ways in different cultures. I think the European problem is specific to the difficulty of the task of building Europe. On a continent in which differences have extracted painful memories for so many, the idea of justice speaking with a voice that may be bland may be really quite a virtue. It is a voice that may be seen as a “European” voice rather than one or another nationality. As to French decisions, I am reminded of the difference between an American contract and a French contract. The American contract goes on for 100 pages to do the same thing that the French contract does in maybe 15-20. The French contract is anathema to the American lawyer and the American contract is anathema to the French lawyer. Then, someone drafts an American style contract and agrees… Read more »
Indeed, a wonderful post and a fascinating subject. I would just add for completeness that I feel the civil law tradition is not most favourably represented by the French example. I am led to understand that Italian and other courts work very similarly to their French counterparts, but I have considerable difficulty in applying some of the criticism here expressed to German courts. True, they do write in a very impersonal style – and occasionally in unbearably complex language, it being felt, perhaps, that plain German would be a slur on the dignity of the court. But German judgments tend to be relatively long (there are no Advocates General or Procureurs de la Republique), and especially in the Federal Constitutional Court of great academic quality. [Incidentally, that court is alone in Germany in allowing dissenting opinions – separate opinions of any other kind remain inadmissible, and the arrival of open dissent was not universally welcomed at the time.] Apart from this very minor comment, I would also suggest another reason for the, arguably peculiar, civil law style. As is well known, civil law jurisdictions do not operate a rule of stare decisis. Of course, the decisions of the higher courts… Read more »
I received an email from a prominent international trade scholar who noted that there has been one anonymous dissent in the WTO Appellate Body case of United States–Cotton (beginning at para. 631) and one anonymous concurrence in the WTO Appellate Body case of EU-Asbestos (beginning at para. 149).
I appreciate the correction and also appreciate him highlighting the practice of anonymous concurring and dissenting opinions.
Roger Alford
Just to add one small point – constitutional courts in civil law systems are different, as the German example certainly shows. They are also different in their make-up from regular courts, in that they are frequently staffed by professors and are not a part of the regular court hierarchy. As for the greater respect for the judicial office that one finds in common law systems when compared to civil law systems, I’ve been taught by my professor of legal history, the venerable A.W. Brian Simpson (he would not like to be called that!), that the reason for this phenomenon is essentially historical. In medieval England, a judge was a substitute for the King. All English common law courts originated in the King’s court, the curia regis, and sat in Westminster Hall in the King’s own palace in London. Indeed, in common law killing a judge was not considered to be murder, but treason, as the judge personified the King. This authority of the judges was later simply transposed to other common law countries. In continental Europe, on the other hand, especially with the advent of the modern state, a judge is to a large extent considered to be a bureaucrat,… Read more »
I agree with Tobias and Marko. The style of the highest courts in the civil law tradition varies enormously. It is my impression that the French are, by far, the worst. Their decisions are the shortest. They never cite prior decisions. They never cite authors. By contrast, German courts cite both, Italian courts cite prior decisions, and their judgments are typically longer. But this is indeed not to say that these courts do not make the law. In France, for example, the law of torts or of conflicts are almost entirely judge made.
As far as the ECJ’s style is concerned, a French lawyer would not consider it as modeled on the French Cour de cassation. From a French perspective, the ECJ takes far too long to get to the point and loses time justifying its solution. It also cites its previous decisions. No, really, that is just too much information.
Thank you Marko, thank you Gilles, certainly, the French are even more brief than the ECJ. I suspect that neither the non-French judges in that court, nor the various addressees of the court’s pronouncements, would take altogether kindly to an even more elliptic style than the one actually employed by the ECJ. I, too, have been told that the role of the English judge (and hence, the judge at common law) goes back to the reign of Henry II, and arguably even before that. As I understand it, King Henry sent out his judges to a) collect the local laws from all over the country, b) develop a common law, i.e. a law common to all the counties and other fiefdoms, and c) apply such law, as the King’s law, throughout the country. It would seem that the judges acted in the name of the King every step of the way, and even before they were sent out, when they were sitting centrally, in the King’s court, as Marko says. As the High Court of King’s Bench said in 1607, ‘the King is always present in Court in the judgment of law’. [I suspect, incidentally, that this is the reason… Read more »
The traditional distinction between common law/adversarial vs. civil law/inquisitorial legal systems has some bearing on the discussion. While the “quality of [justice] is not strained”, a functional approach suggests that the “quality” of a judgment requires adherence to both form and content within the applicable dispute resolution process. For a common law judge, the procedural and substantive requirements are met when the written reasons correctly analyse the facts and evidence and the judge has correctly applied or distingished legal precedent based upon the doctrine of stare decisis. Legal counsel, however, bears the primary responsibility; particularly in common law systems (e.g. Canada, the U.S.) where claims are framed by the pleadings and caselaw relied upon by legal counsel, Generally, a “quality” common law judgment is one that is affirmed upon appellate review and/or has been cited with approval in the same or other jurisdictions (cf.the Practice Statement HL Judicial Precedent [1966] 1 WLR 1234; [1966] 2 Lloyd’s Rep 151; 110 SJ 584 HL [1966] 1 WLR 1234 where the House of Lords declared that itself no longer formally bound by its own precedents and pronounced its intention “to depart from a previous decision when it appears right to do.”). Conversely, under… Read more »
Thank you, Antonin. That was quite helpful. I doubt, however, if the rule jura novit curia is nowadays completely absent from the common law. Witness this dictum by the Lord Justice General of Scotland, Lord Rodger (now a Lord of Appeal in Ordinary) in Galbraith v HM Advocate 2002 JC 1, para. 21: ‘As was all too apparent, however, both counsel found it much easier to tear down the somewhat fragile structure that our predecessors had erected than to suggest what we should raise up in its place. In the end the Solicitor General said that the matter was one of difficulty and that, if the suggestions of counsel did not find favour, we should simply have to do what we willed. Wafted on some Continental zephyr, the doctrine that the court knows the law had, apparently, reached our shores. So, duly admonished, we set about our task.’ Despite the flippant tone, his Lordship (speaking for a five-judge constitution of the High Court of Justiciary) seems to recognize that the doctrine had indeed arrived in Scotland (and, arguably, in England as well; the ‘shores’ are, after all, the same, the two jurisdictions lying on the same island). But an even… Read more »
Excellent points, Tobias. In a sense, the judicial gate-keeping function is on a continuum—Counsel frame the issues in the pleadings; while the judge hears arguments from both sides and, hopefully, renders a fair, reasoned and impartial decision on the merits. I generally agree that imputing or importing common law doctrines of obiter dicta or the relevance of the submissions of counsel are culturally inappropriate in the context of international precedent. You are no doubt referring to the inherent tension in national courts applying international law, including the elusive distinctions between international public policy and transnational public policy. In the context of the CISG, Professor Ferrari has criticized the applicability of binding precedent under the rubric of an emerging “supranational stare decisis“, stating: First, from a substantive point of view, stating that uniform case law should be treated as binding precedent does not take into account that a uniform body of cases does not per se guarantee the correctness of a substantive result….Second, from a methodological point of view, the suggestion to create a supranational stare decisis…must be criticized, since it does not take into account the rigid hierarchical structure of the various countries’ court systems….[Franco Ferrari, Ten Years of the… Read more »
Thank you again, those are valuable points. I should admit, though, that my last point was much less ambitious than that. The House in Al-Skeini regarded, or perhaps rather dis-regarded, certain statements by the European Court of Human Rights as obiter, and further noted that the European Court had had the benefit of submissions by eminent counsel in an arguably conflicting case. (The former case was Issa v Turkey, the latter Bankovic and Others v Belgium and Others)
That is what I thought was regrettable. It is of no immediate relevance to the authority of a statement by the ECtHR that the statement might have been obiter, and the quality of the submissions of counsel is utterly immaterial. Just because international courts rely on precedent in much the same way that English courts do does not mean that they do so under the English rules of precedent.
A simple point, certainly, but one that English judges seem to be rather too ready to forget.
Many years ago (1990), I took a course in EC law (as it was then known) and I heard one explanation of the ECJ’s style of decision making that hasn’t been mentioned: the need to protect such judicial independence as they have. Judges on the ECJ do not enjoy lifetime tenure; they are appointed by the member states for limited terms and can be re-appointed. So, if the national governments don’t like the way a particular judge votes, they could decline to re-appoint him. The use of unsigned opinions by the entire court eliminates this possibility since no one outside of the court knows how a particular judge voted to decide a case.