Recruiting European Judges in the Age of Judicial Self-- Government (original) (raw)
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Traditionally, European continental judiciaries have been organised along a bureaucratic, civil service model. Early recruitment was complemented by the strong hierarchical character of the judicial organisation. Therefore, in this type of judiciary guarantees of independence have been problematic because of the influence hierarchical superiors (or in some cases the government itself) had on promotions. Since the Second World War the need for change has been increasingly felt. The main aims have been to increase external independence, especially vis-à-vis the executive, and to protect lower ranking judges from negative influence by the senior judiciary, often considered to be too responsive to governmental wishes.
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A few years ago, judicial councils composed primarily of judges were viewed as a panacea for virtually all problems of court administration in Europe. The burgeoning literature on judicial councils has shown that this is not necessarily the case. This article builds on this literature, but it argues that judicial self-governance is much broader phenomenon than judicial councils and may also take different forms. Therefore, it is high time to look beyond judicial councils and to view judicial self-governance as a much more complex network of actors and bodies with different levels of participation of judges. To that end this article conceptualizes judicial self-governance and identifies crucial actors within the judiciary who may engage in judicial governance (such as judicial councils, judicial appointment commissions, promotion committees, court presidents and disciplinary panels). Subsequently, it shows that both the forms, rationales, and effects of judicial self-governance have ...
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This article assesses recent reforms of the appointment procedure for members of the Court of Justice and the General Court. We evaluate the effects of the establishment of the Article 255 TFEU Panel. Next to a discussion on the transparency of the Panel’s opinions, the criteria set and the role it plays in reappointments, we present case studies of the selection procedure in fourteen Member States, representing new and old, and small and large Member States. Our analysis shows that far from being a paper tiger, the Article 255 TFEU Panel has proven to have a significant impact: it has had a chilling effect on a number of national nominations but also indirectly influenced the selection processes in some Member States, thus limiting arbitrariness. However, opening up judicial appointments to scrutiny at both the EU and the national level has resulted in a subtle move into the direction of judicial self-government.
The recent reforms of the Polish Judiciary have sparked a lively debate in Europe on the importance of judicial independence. This Article deals with the new Polish system of selecting and appointing judges and critically assesses it in the light of European standards for judicial appointments. It then compares the new Polish system to the German system of selecting judges, which has been advanced as a point of reference for the reform by the Polish government. Finally, the Article reconsiders and challenges some of the established concepts of German constitutional law as to the selection of judges and judicial legitimacy.
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This paper discusses the different models of appointment applied for constitutional judges in Europe, taking into consideration also the appointment procedure of the two European regional courts. It offers an account and a comparative analysis of the three appointment models: the split, the collaborative and the parliamentary model, discussing their practical application and shortcomings. In particular, the paper deals with the question of how to avoid standstills in the different appointment procedures and with the publicity of these procedures. The author concludes with a proposal for the Hungarian Constitutional Court, arguing that the split model is the one that ensures better that the composition of the Court expresses a balance between the branches of government.
Paper presented at the First Italian-Hungarian Comparative Law Workshop held in at the Hungarian Academy of Sciences in Budapest, 2013
""This paper discusses the different models of appointment applied for constitutional judges in Europe, taking into consideration also the appointment procedure of the two European regional courts. It offers an account and a comparative analysis of the three appointment models: the split, the collaborative and the parliamentary model, discussing their practical application and shortcomings. In particular, the paper deals with the question of how to avoid standstills in the different appointment procedures and with the publicity of these procedures. The author concludes with a proposal for the Hungarian Constitutional Court, arguing that the split model is the one that ensures better that the composition of the Court expresses a balance between the branches of government.""