The fourth chapter deals with the ECJ’s present role in the EU’s political system and how its procedural and organisational law might need to be adapted to better reflect it. The chapter first explains how in recent years, notably through the Treaty of Lisbon, the ECJ’s mandate has been modified. It argues that the Court is no longer only concerned with ensuring the autonomy and effectiveness of EU law, but that it is also a democratic organ of the EU polity, whose decisions need to be responsive to EU citizens. To ensure democratic responsiveness, the chapter argues, the ECJ’s procedural and organisational law needs to be further developed. The chapter makes concrete proposals by applying the Treaty on European Union’s democratic principles to the ECJ’s procedural and organisational law. It discusses, among other things, the role of the European Parliament in selecting ECJ members the place of NGOs and civil society in ECJ proceedings, the interaction between the Advocate General and the judges, the composition of the ECJ’s chambers and the mechanism for case assignment and make suggestions how to better reflect the concern for the ECJ’s democratic responsiveness.

The third chapter describes how the the re-definition of the ECJ’s role from the 1960s onwards has affected its procedural and organisational law. It is well known that through decisions such as Van Gend en Loos and Costa v ENEL, the ECJ contributed to changing its mandate: from protecting the interests of the Member States to aiming to establish EU law as an autonomous and effective legal system. This chapter tells the story of how the Court’s procedure, organisation and decision-making was adpated to effectively exercise this new role. The chapter shows in detail the vast transformation the Court’s organisation and decision-making has undergone. It explains how the role of the ECJ judge was developed from state representative to neutral expert, how an inner circle of ECJ participants gradually formed that plays a central role for the acceptance and dissemination of the Court’s case law and which procedural mechanisms were devised to make ECJ decision-making more hierarchical in order to foster and maintain consistency in the Court’s case law.

In this book, I have argued that the ECJ’s procedural and organisational law has for a long time ideally fit the Court’s role in the EU’s political system but that this is no longer the case. The ECJ’s mandate has developed, and the Court’s model of decision-making should follow suit. The normative framework to develop this argument has been built on the works of three legal and political theorists: Christoph Möllers, Niklas Luhmann and Jürgen Habermas. While Möllers has helped to understand the ECJ’s original design, Luhmann’s and Habermas’ contrasting visions on the role of courts have allowed to conceptualise the main tension underlying the current ECJ procedural and organisational law. Luhmann speaks the technical language of administration and organisation. Life is complex. Things need to work. To reduce uncertainty and foster stability is what the legal system and courts are for. Jürgen Habermas offers a different perspective. He seeks to open the cold world of legal rules to a public and equal discourse on what is right and just. Justice is for Habermas much more than courts deciding like cases alike. Courts need to aim making decisions that everyone affected can potentially agree to.

The first chapter of the book develops a normative theory of court organisation and decision-making. It provides the normative framework to assess the development and state of the ECJ’s procedural and organisational law. The chapter argues that the procedure and organisation of a court should depend on its role in a political system. To develop this argument, it presents three ideal models of court decision-making: a liberal model, a rule of law model and a democratic model. The liberal model is associated with the theoretical work of Christoph Möllers. He sees the role of courts as protecting individual liberty. The litigants need to be at the centre of the judicial process. The rule of law model, which I associate with Niklas Luhmann’s theory of the judicial process, sees the role of courts not so much in the service of the individual; rather it sees the judicial process as instrumental for creating normative stability by inducing acceptance for court decisions as authoritative interpretations of the law. Finally, the democratic model, that I associate with the theory of adjudication by Jürgen Habermas, conceptualizes courts as democratic organs of a political community. They need to connect to the will of a political community and aim for a procedure that embeds a court’s work in the public sphere.

The introduction of the book has two purposes. First, it explains why a normative theory of ECJ procedural and organisational law is needed. It puts forward three reasons: first, procedural and organisational design involves making important choices on the role of courts in society; second, the dominant normative approach to assessing the ECJ’s work, namely the focus on its methods of interpretation, faces a number of conceptual problems; and third, ECJ judicial reform is of great practical relevance and requires normative anchoring. Secondly, the introduction explains the empirical strategies the book pursues to investigate the ECJ’s inner workings. In particular, it explains how requests for access to adminstrative documents and statistical analysis is used in the book to get a better understanding how the ECJ’s procedural and organisational rules are applied in practice. Finally, the introduction summarises the core of the book’s argument.

The second chapter investigates the original model underlying the ECJ’s procedural and organisational law by describing the mandate and the procedural and organisational setup of the ECJ’s predecessor, the Court of the European Coal and Steel Community. The chapter shows that the Coal and Steel Court squarely fit into the liberal model of court decision-making developed in the first chapter of the book. Its primary role was to protect the rights and interests of individual litigants, notably the Member States. Accordingly, the Coal and Steel Court was equipped with a procedural and organisational law borrowed from the International Court of Justice, steered towards the equal representation of the Member States in the proceedings. The chapter describes in detail how the idea of Member State representation coined the conception of judges as state representatives, a narrow understanding of who may participate in court proceedings and a design of the deliberations that aimed to give all judges equal influence.

The chapter deals with the assignment of cases to reporting judges and judicial formations at ECJ. EU lawyers generally consider the ECJ’s system of case assignment to be one of the most problematic features in the court’s decision-making process. They perceive a strong tension with the right to a fair trial. The aim of this chapter is to understand why the court maintains a system that has been under severe attack for a long time. By closely analysing the practice of case assignment between 2003 and 2019, charting assignment profiles of individual judges, the chapter argues that the ECJ’s assignment system is a key mechanism for the court’s institutional success. It has allowed the court to maintain a sense of common purpose, a strong and persistent idea of its mandate as a guardian of the effectiveness and primacy of EU law. The chapter identifies three key functions case assignment performs. First, supporting jurisprudential stability and continuity by creating an elite group of judges who writes the bulk of the most important ECJ decisions. Second, integrating new ECJ judges through gradually assigning them more difficult cases thereby structuring a learning process for becoming a full-fledged ECJ judge. And third, the ECJ’s system of case assignment has helped to maintain what is generally lost in courts of the ECJ’s size: a place where all twenty-seven ECJ judges and eleven Advocates General are informed on all incoming cases, jointly engage in systematizing the ECJ’s case law and framing the court’s agenda.