¹ See for example, A. Stone Sweet, The Judicial Construction of Europe (Oxford University Press 2004); K. Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford University Press 2001); or the seminal E. Stein, ‘Lawyers, Judges and the Making of a Transnational Constitution’, 75 American Journal of International Law (1981) p. 1.

² Most notably, see A. Vauchez, Brokering Europe – Euro-Lawyers and the Making of a Transnational Polity (Cambridge University Press 2015). More recently, see also T. Pavone, The Ghostwriters – Lawyers and the Politics behind the Judicial Construction of Europe (Cambridge University Press 2022).

³ See, however, M. Madsen et al. (eds.), Researching the European Court of Justice – New Methodologies and Law’s Embeddedness (Cambridge University Press 2022).

⁴ At p. 4.

⁵ At p. 5.

⁶ At p. 102.

⁷ Krenn equates his endeavour with researching ‘a black box’ (p. 7).

⁸ Practical guide for the handling of cases (my translation).

⁹ At p. 8.

¹⁰ See, most notably, C. Möllers, The Three Branches – A Comparative Model of Separation of Powers (Oxford University Press 2013).

¹¹ See, most notably, N. Luhmann, Law as a Social System (Oxford University Press 2004).

¹² See, most notably, J. Habermas, Between Facts and Norms – Contribution to a Discourse Theory of Law and Democracy (MIT Press 1996).

¹³ At p. 29.

¹⁴ Krenn speaks of a ‘wholesale transformation’ (p. 40).

¹⁵ At p. 46.

¹⁶ A. Alemanno, ‘How Transparent is Transparent Enough? Balancing Access to Information against Privacy in European Judicial Selections’, in M. Bobek (ed.), Selecting Europe’s Judges – A Critical Review of the Appointment Procedures to the European Courts (Oxford University Press 2015) p. 204.

¹⁷ As a token of this trend, each member of the Court now has to make a declaration of interests public, available on the Court’s website.

¹⁸ This is best illustrated by the press release No. 58/20, which the Court issued in reaction to the Weiss ruling of the German constitutional court, thereby derogating from its practice of not commenting on judgments of national courts. The multiple interviews given by President Lenaerts over the past few years to national newspapers (such as Knack, Les Echos, Le Monde, Financial Times or Politico) also embody this trend.

¹⁹ At p. 58.

²⁰ N. Luhmann, Legitimation durch Verfahren, 10th edn. (Suhrkamp 2017) p. 115.

²¹ Arts. 61 and 62 of the Rules of Procedure. They cover, among others, requests for additional documents or information, questions to be answered, invitations to concentrate pleadings.

²² Art. 24 of the Court’s Statute.

²³ Art. 101 of the Rules of Procedure.

²⁴ As documented in the judicial statistics published by the Court of Justice. See https://curia.europa.eu/jcms/jcms/Jo2_7032/en/, visited 22 January 2024.

²⁵ At p. 85-86. At the top of this informal hierarchy, over the 2003-2021 period, Krenn places Koen Lenaerts, Lars Bay Larsen, Marko Ilesic, Allan Rosas, Thomas von Danwitz and Sacha Prechal (on the basis on their average number of Grand Chamber cases assigned each year).

²⁶ It would be interesting to know whether similar dynamics can be observed among Advocate Generals, where the First Advocate General enjoys a power of assignment comparable to that of the President of the Court.

²⁷ At p. 155.

²⁸ At p. 103-104.

²⁹ On the critical side, see, most prominently, D. Grimm, ‘The Democratic Costs of Constitutionalisation: The European Case’, 21 European Law Journal (2015) p. 460; R. Hirschl, Towards Juristocracy (Harvard University Press 2007).

³⁰ See, most recently, J. Guth and S. Elfving, Gender and the Court of Justice of the European Union (Routledge 2019); J. Guth, ‘The Court of Justice of the European Union, Gender, and Leadership’, in H. Müller and I. Tömmel, Women and Leadership in the European Union (Oxford University Press 2022) p. 273.

³¹ See for example J. Krommendijk and K. van der Pas, ‘To Intervene or Not to Intervene: Intervention before the Court of Justice of the European Union in Environmental and Migration Law’, 26 International Journal of Human Rights (2022) p. 1394.

³² Beyond the literature quoted by Krenn, see S. Turenne, ‘Advocate Generals’ Opinions or Separate Opinions? Judicial Engagement in the CJEU’, CYELS (2012) p. 723.

³³ Next to the literature quoted, see, for example, A. Arnull, ‘The Working Language of the CJEU: Time for A Change?’, ELR (2018) p. 904.

³⁴ To Krenn, such possibility for separate opinions would, on the one hand, harm the effectiveness of the Court’s rulings, and the uniform application of its law, and could, on the other, be instrumentalised by a member state to pressurise its judge in the context of their reappointment.

³⁵ See infra.

³⁶ Committee on Legal Affairs, Proposed amendments to Protocol No. 3 on the Statute of the Court of Justice of the European Union, 6 July 2023, see especially Amendment 1, available at https://www.patrick-breyer.de/wp-content/uploads/2023/07/CJEU-Statute-AMs.pdf, visited 22 January 2024.

³⁷ In February 2022, the Court streamed, for the first time in its history, the delivery of its judgements on the rule of law conditionality mechanism (C-156/21 and C-157/21). On this evolution see P. Lombardi, ‘Nerdflix – EU Courts Start Livestreaming’, Politico, 22 April 2022, https://www.politico.eu/article/eus-top-court-embraces-digital-age-with-streaming-service/, visited 22 January 2024. See also M. Kianicka, ‘Streaming of Hearings – a Tough Call from the Court of Justice’, EULawLive, 17 April 2020.

³⁸ At p. 142.

³⁹ The exact functions of the Advocate General in the judicial process remain subject to academic discussion, and primary law is admittedly quite open on the matter. My view, however, is that his/her role is primarily of a reflexive and structural nature. As a critical thinker, the Advocate General is to inspire case law, ensure its consistency and, when necessary, challenge it. For seminal work on the Advocate General, see L. Clément-Wilz, La fonction de l’avocat général près la Cour de Justice (Bruylant 2011).

⁴⁰ At p. 145.

⁴¹ A prominent example is that of Judge Bay Larsen and his activism in the area of financial and monetary law. Judge Bay Larsen has indeed acted as rapporteur in most of the recent important cases concerning the powers and competences of the European Central Bank. See, most notably the Gauweiler (C-62/14), Weiss (C-493/17), Banka Slovenije (C-45/21) and Crédit Lyonnais (C-389/21P) cases.

⁴² For a plea in favour of specialised chambers, see M. Jacobs et al., ‘Subject Matter Specialization of European Union Jurisdiction in the Preliminary Ruling Procedure’, 20 German Law Journal (2019) p. 1214.

⁴³ Seminally, see, for example, A. Arnull, ‘Private Applicants and the Action for Annulment under Article 173 of the EC Treaty’, 32 CML Rev. (1995) p. 7; D. Waelbroeck and A.-M. Verheyden, ‘Les conditions de recevabilité des recours en annulation contre les actes normatifs communautaires’, 31 Cahiers de droit europeen (1995) p. 399. More recently, with specific regard to environmental law, see M. Pagano, Overcoming Plaumann – Environmental NGOs and Access to Justice before the CJEU (PhD thesis, EUI 2022).

⁴⁴ On this trend, see L. Conant et al., ‘Mobilizing European Law’, 25 Journal of European Public Policy (2018) p. 1376; A. Hofmann and D. Naurin, ‘Explaining Interest Group Litigation in Europe: Evidence from the Comparative Interest Group Survey’, 34 Governance (2021) p. 1235.

⁴⁵ Krenn’s exclusive focus lies on the Court of Justice. The General Court and, more generally, the division of labour within the Court are aspects of the institution’s organisational law he chose not to consider.

⁴⁶ On this reform process, see D. Sarmiento, ‘The Reform of the General Court – An Exercise in Minimalist (but Radical) Institutional Reform’, CYELS (2017) p. 236.

⁴⁷ Request submitted by the Court of Justice pursuant to the second para. of Art. 281 TFEU, with a view to amending Protocol No. 3 on the Statute of the Court of Justice of the European Union (2022 Reform Proposal), https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-12/demande_transfert_ddp_tribunal_en.pdf, visited 22 January 2024.

⁴⁸ In December 2023, the Parliament and the Council reached a provisional agreement on the reform, which can be expected to be formally adopted before the June 2024 European elections.

⁴⁹ For first analyses, see D. Sarmiento, ‘On the Road to a Constitutional Court of the European Union’, Croatian Yearbook of European Law and Policy (2023) p. VII; D. Petric, ‘The Preliminary Ruling Procedure 2.0’, European Papers (2023) p. 25; S. Iglesias Sanchez, ‘Preliminary Rulings before the General Court – Crossing the Last Frontier of the Reform of the EU Judicial System’, EULawLive Weekend Edition, 17 December 2022.

⁵⁰ To identify possible areas of law which could be transferred to the General Court, the Court has mobilised four criteria: the sufficient identifiability and separability of the field considered; the technical nature of the area and the limited questions of principle it tends to raise; the existence of a developed body of case law organising the area; the number of preliminary references the area tends to generate. The implementation of this methodology, and the selection made by the Court, has been one of the main aspects of the reform commentators have focused on, some wondering why areas such as intellectual property or public procurement were left out (for example, Petric, supra n. 48, pp. 31-32).

⁵¹ See Court of Justice of the European Union, Report submitted pursuant to Art. 3(2) of Regulation 2015/2422 of the European Parliament and of the Council amending Protocol No. 3 on the Statute of the Court of Justice of the European Union, https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-01/en_2018-01-12_08-43-52_183.pdf, visited 22 January 2024.

⁵² On this theme, see A. Dyevre et al., ‘Raising the Bar – The Development of Docket Control on the Court of Justice’, 76 ZöR (2021) p. 523.

⁵³ An ambition supported by Krenn, see p. 141.

⁵⁴ On 9 May 2023, the JURI Committee devoted an entire hearing to the reform, and exchanged views with the Presidents of the Court of Justice, Koen Lenaerts, and of the General Court, Marc van der Woude, who had been invited on the occasion.

⁵⁵ Numerous amendments have been proposed on a wide diversity of matters, such as the publicity of parties’ submissions (as seen supra), the creation of a conciliation mechanism between the Court of Justice and national courts to avoid clashes, for example on ultra vires cases, or the development of an amicus curiae practice.

⁵⁶ See p. 156-157.