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GERMAN LAW JOURNAL

R e v i ew o f D e v e l o p m e n t s i n G e r m an , E u r o p e a n an d I n t e r n a t i o n a l Ju r i s p r u d en c e

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TABLE OF CONTENTS PAGE I

Vol. 15 No. 07 Pages 1223-1320 01 December 2014

Table Of Contents

Articles

Miroslava Scholten & Marloes van Rijsbergen The Limits of Agencification in the European Union

1223-1256

Michal Bobek & David Kosař

Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe

1257-1292

http://www.germanlawjournal.com/

TABLE OF CONTENTS PAGE II

Table Of Contents – Continued

Developments

Arnfinn Bårdsen

The Norwegian Supreme Court and Strasbourg: The Case of Lillo-Stenberg and Sæther v. Norway

1293-1306

Stephen Bouwhuis

Reform of International Organizations

1307-1320

Articles

The Limits of Agencification in the European Union By Miroslava Scholten* and Marloes van Rijsbergen** Abstract Although not explicitly regulated by the EU treaties, EU agencies not only exist but also have increased in number and power. In addition, while EU agencies may exercise very similar functions to those of the Commission, Articles 290 and 291 of the Treaty on the Functioning of the European Union (TFEU) do not list agencies among the possible authors of non-legislative acts. The existing situation raises the questions of the extent to which the ongoing agencification in the EU is legitimate and what its limits are. This article addresses these questions in the light of the old and new Treaties and case law, including the just released ESMA-shortselling case. It shows that while the Lisbon Treaty made a few steps forward on the road of legitimizing EU agencies and delegating important powers to them, the scope of powers that EU agencies can have remains unclear. In this respect, the European Court of Justice’s lenient approach in the ESMA-shortselling case is unfortunate because it neither clarifies the issue nor pushes the Union Legislator and the Member States to address it. Consequently, in the absence of clear limits, further agencification is likely to persist at the risk of increasing the democratic legitimacy deficit and remaining accountability gaps. A. Introduction In recent decades, two trends have been characterizing the exercise and delimitation of public power: First, the growing scope of delegation of public authority to the executive branch, and second, cutting “the executive into smaller

* Miroslava Scholten is an Assistant Professor EU Law at the Utrecht Centre for Shared Regulation and Enforcement in Europe (RENFORCE) and Europa Institute, Faculty of Law, Economics and Governance, Utrecht University; [email protected].

** Marloes van Rijsbergen is a PhD Candidate at the Utrecht Centre for Shared Regulation and Enforcement in Europe (RENFORCE) and Europa Institute, Faculty of Law, Economics and Governance, Utrecht University; [email protected].

The authors would like to thank the European Banking Authority for organizing an insightful legal workshop on regulatory tools and the EU institutional architecture for the financial sector on 17 January 2014 at the EBA’s premises in London, which served as the impetus for this article.

We are grateful to Prof. Dr. Linda Senden, Mr. Rob van de Westelaken, and Mr. Merijn Chamon for their comments on the first draft of this article as well as the editorial board for their careful editing.

1 2 2 4 G e r m a n L a w J o u r n a l [Vol. 15 No. 07

pieces”1 or, in other words, dispersing the locus of the executive branch within and beyond the nation state border. The former trend can be explained mainly by globalization and technological developments, which leave legislatures with a challenging task of regulating a number of technical and internationalized issues. The lack of time and expertise necessitate the delegation of vast powers in quantitative and qualitative terms to the executive that can act on the spot and respond to the, at times, quickly changing realities in a prompt and effective manner. The latter trend seems to have mixed origin—functional necessities and political compromises—and can be roughly brought down to the “agencification phenomenon”2 because various sorts of agencies have become an important part of the executive branch. Most concerns relate to the independent regulatory type of agencies because of their rather misleading label “independent,” which arguably implies unaccountability.3 In a larger perspective, concerns about both trends stem from the fact that they have occurred without being accompanied by relevant constitutional changes, which in turn raises the question of the democratic legitimacy of the increasing amount of agencies regulating a vast range of sectors, from finance to health to transport and food safety. From a formal or procedural legitimacy perspective,4 agencies’ democratic legitimacy becomes problematic when they are created without an explicit, constitution-based authorization by the people. The social acceptance of agencies may be questioned if the creation of and delegation to agencies are not justified.5 The “legitimacy question” seems to be 1 Luc Verhey, Political Accountability: A Useful Concept in EU Inter-Institutional Relations?, in POLITICAL ACCOUNTABILITY AND EUROPEAN INTEGRATION 55, 67 (Luc Verhey et al. eds., 2009).

2 Agencification is used as a generic term implying the creation of agencies and delegation of powers to them.

3 See Miroslava Scholten, Independent, Hence Unaccountable? The Need for a Broader Debate on Accountability of the Executive, 4 REV. EUR. ADMIN. L. 5, 5–44 (2011) [hereinafter Scholten, Independent, Hence Unaccountable?].

4 See Amaryllis Verhoeven, Democratic Life in the European Union, According to its Constitution, in 49 GOOD GOVERNANCE AND THE EUROPEAN UNION: REFLECTIONS ON CONCEPTS, INSTITUTIONS AND SUBSTANCE 153, 155 (Deirdre Curtin & Ramses Wessel eds., 2005) (“We speak of formal legitimacy always when the decision making process can be formally/procedurally recognized as an expression of self-governance. A political system enjoys substantive legitimacy when it can boast wide social acceptance, i.e. the loyalty of its citizens.”). In a similar way, some scholars distinguish between procedural and substantive legitimacy. See Giandomenico Majone, REGULATING EUROPE 291–96 (1996).

5 This concerns, for instance, EU agencies. According to the Ramboll Evaluation of twenty-six EU agencies prepared for the Commission, EU agencies’ founding acts “did not sufficiently explain why new instruments had to be implemented through an agency, rather than something else.” “Alternatives to creating agencies were paid limited attention until impact assessments came into practice. The creation of agencies is now justified in a transparent way, although it is not yet fully evidence-based and still does not cover all relevant issues.” RAMBOLL MANAGEMENT-EUREVAL-MATRIX, EVALUATION OF THE EU DECENTRALISED AGENCIES IN 2009, FINAL REPORT VOL. I (Dec. 2009) [hereinafter RAMBOLL EVALUATION] (evaluating twenty-six decentralized agencies).

2014] Limits of Agencification in the European Union 1225 even more delicate in relation to EU agencies. EU agencies are created without a specific treaty provision, which would allow their creation, by the EU institutions whose democratic legitimacy and accountability have been debated for a long time.6 What scholars call the “agencification phenomenon” seems to have become a daily practice at the EU level, especially in the last decade where the number, de facto influence, and de jure powers of EU agencies have grown enormously. Since 2000 the number of EU agencies has tripled from ten to at least thirty-five agencies. More and more scholars have pointed out that the EU agencies’ impact on policy shaping and implementation is considerable, despite agencies lacking the power to make legally binding decisions.7 While allowing EU agencies to make legally-binding decisions in individual cases has been a matter of debate since 1994,8 the three most recently created EU financial regulators, European Banking Authority (EBA), European Securities and Markets Authority (EsSMA), and European Insurance and Occupational Pensions Authority (EIOPA), enjoy powers to issue legally binding measures and to enforce EU law by surpassing, in certain cases, relevant national authorities. A judicial challenge to these agencies’ legal authority has resulted in Case C-270/12, ESMA-shortselling, where the Court approved the delegation of powers to issue measures of general application and laid down what could be called a new delegation doctrine for the EU. At the same time, however, the Court leaves a number of questions open. These relate to the applicability of the remnants of the old Meroni-Romano non-delegation doctrine and to the legitimacy and limits of agencification in the EU. This article discusses the ongoing agencification and attempts to define its limits in light of the old and new judgments and Treaties. The article is divided into three parts: First, it outlines the ongoing trends and the Meroni-Romano limits of agencification in the EU (Section B). To this end, it defines EU agencies, discusses

6 See Luc Verhey & Monica Claes, Introduction: Political Accountability in a European Perspective, in POLITICAL ACCOUNTABILITY IN EUROPE: WHICH WAY FORWARD?: A TRADITIONAL CONCEPT OF PARLIAMENTARY DEMOCRACY IN AN EU CONTEXT 3, 3 (Luc Verhey et al. eds., 2008).

7 See Renaud Dehousse, Delegation of Powers in the European Union: The Need for a Multi-Principals Model, 31 W. EUR. POL. 789, 790, 799 (2008) (“The absence of formal authority does not necessarily mean that” EU agencies are “deprived of any influence.”). See also Checks and Balances of Soft Rule-Making in the EU, EUR. PARL. DOC. (PE 462.433) 8 (2012); Eduoardo Chiti, An Important Part of the EU’s Institutional Machinery: Features, Problems and Perspectives of European Agencies, 46 COMMON MKT. L. REV. 1395, 1405 (2009); Martin Shapiro, The Emergence of Global Administrative Law: “Deliberative,” “Independent” Technocracy v. Democratic Politics: Will the Globe Echo the EU?, 68 L. CONTEMP. PROBS. 341, 353 (2005); Ellen Vos, Agencies and the European Union, in AGENCIES IN EUROPEAN AND COMPARATIVE LAW, 113, 142 (Luc Verhey & Tom Zwart eds., 203) [hereinafter Vos, Agencies and the European Union]. 8 The first two EU agencies given powers to take legally binding decisions against third parties, the Community Plant Variety Office and the Office for Harmonization in the Internal Market, were created in 1994.


EU agencies’ typology, historical roots, and functions, and attempts to find their coordinates on the EU institutional map (B.I.2). Section B.II.2 hones in on the Meroni-Romano non-delegation doctrine, which arguably used to limit the delegation of powers in the EU. Next, the article illustrates the agencification trend in the area of financial market regulation (B.III). The possibility to entrust the new EU financial regulators with vast decision-making and supervisory powers has become a test to the existing Meroni-Romano non-delegation doctrine resulting in the just released ESMA-shortselling case, analyzed in Section C. Here, in addition to the facts of the case (C.I), the questions of what the Court did and did not say (C.II) and what the Court could have said (C.III) are addressed. The discussion of the significance and implications of the new ESMA-shortselling case for further agencification in the EU follows in Part D. B. The Agencification in the EU: Trends and Limits I. EU Agencies: An Introduction

There is a genuine consensus that the proliferation of EU agencies is one of the most important institutional developments at the EU level.9 Because they are considered to be an effective tool in implementing EU policies,10 the number of agencies has been growing rapidly, and there are now thirty-five EU agencies.11 The scope of delegation to EU agencies has grown not only in quantitative terms but also qualitatively, implying the growth of agencies’ powers. EU agencies, no longer merely information-gathering assistants of the Commission and national authorities, may enjoy decision-making and supervisory powers. This section introduces EU agencies by defining them and discussing historical roots and reasons for creation, their types and powers, and the position within the EU institutional constellation. 1. Defining EU Agencies Defining an “EU agency” is a challenging task due to the absence of an official definition and the existing variety of bodies that could be put under the umbrella of EU agencies. The term “agency” is used as an omnibus term substituted by such

9 Nearly every academic and policy document recognizes this development, calling it at times an “agency fever.” Tom Christensen & Per Lægreid, Rebalancing the State: Reregulation and the Reassertion of the Centre, in AUTONOMY AND REGULATION: COPING WITH AGENCIES IN THE MODERN STATE, 359, 366 (Tom Christensen & Per Lægreid eds., 2006).

10 See EUR. PARLIAMENT, COUNCIL OF THE EU & EUR. COMM’N, JOINT STATEMENT ON DECENTRALISED AGENCIES 1 (2012), http://ec.europa.eu/commission_2010-2014/sefcovic/documents/120719_agencies_joint_statement_en.pdf. 11 See MIROSLAVA SCHOLTEN, THE POLITICAL ACCOUNTABILITY OF EU AND US INDEPENDENT REGULATORY AGENCIES 53–54 (Fabian Amtenbrink & Ramses A. Wessel eds., 2014) [hereinafter SCHOLTEN, POLITICAL ACCOUNTABILITY].

2014] Limits of Agencification in the European Union 1227 terms as “institute,” “center,” “office,” or “authority” in the existing EU agencies’ official titles.12 Because of the difficulty of defining EU agencies, there is little consensus on how many EU agencies there actually are.13 The official web-page of EU agencies describes them as follows:

A number of specialised [sic] and decentralised [sic] EU agencies have been established to support the EU Member States and their citizens. These agencies are an answer to a desire for geographical devolution and the need to cope with new tasks of a legal, technical and/or scientific nature. They are bodies governed by European public law; they are distinct from the EU Institutions (Council, Parliament, Commission, etc.) and have their own legal personality.14

Furthermore, scholars have included additional characteristics of EU agencies, including the following: Agencies are created by secondary legislation, they enjoy a new organizational mode15 and financial autonomy, and they are created on the basis of the provision(s) of the EU or EC Treaties.16

12 The recently issued “Common Approach” on EU agencies proposes harmonization of agencies’ titles in the future using a standard term “European Union agency for . . . .” EUR. PARLIAMENT, supra note 10. 13 Reports on the number of EU agencies vary greatly: Various studies, evaluations, and EU official documents refer to different numbers of EU agencies. For instance, while the Commission’s brochure, EU AGENCIES, WHATEVER YOU DO, WE WORK FOR YOU (2007), http://cdt.europa.eu/CDT%20Publication%20Book/Agencies/agenciesFeb08_EN_low.pdf, offered an overview of twenty-nine EU agencies, the Meta-Study for the Commission (2008) evaluated twenty-six decentralized agencies. The COUNCIL OF THE EU, EVALUATION OF EUROPEAN UNION AGENCIES (2012), http://www.statewatch.org/news/2012/mar/eu-council-agencies-agreement-7727-12.pdf, summarizing the results of the institutional working group on agencies referred to thirty-one agencies. The official web-page of EU agencies lists thirty-five decentralized agencies, Agencies and Other EU Bodies, EUR. UNION, http://europa.eu/about-eu/agencies/index_en.htm (last visited Nov. 25, 2014).

14 SCHOLTEN, POLITICAL ACCOUNTABILITY, supra note 11, at 48.

15 Agencies share a similar organizational structure: a management board, executive director, and additional scientific committees reflecting their functional needs; exact names of such organs may differ. Some agencies that issue individual decisions also have boards of appeals.

16 See Chiti, supra note 7, at 1396; Stefan Griller & Andreas Orator, Everything Under Control? The “Way Forward” for European Agencies in the Footsteps of the Meroni Doctrine, 35 EUR. L. REV. 3, 7–10 (2010); Mark Thatcher & David Coen, Reshaping European Regulatory Space: An Evolutionary Analysis, 31 W. EUR. POL. 806, 814 (2008); Vos, Agencies and the European Union, supra note 7, at 118; Ellen Vos, Independence, Accountability and Transparency of European Regulatory Agencies, in REGULATION THROUGH AGENCIES IN THE EU: A NEW PARADIGM OF EUROPEAN GOVERNANCE 120, 122 (Damien Geradin et al. eds, 2005) [hereinafter Vos, Independence, Accountability, and Transparency].


Independence or autonomy17 is the most distinctive feature of EU agencies, which implies that they have “to be free of both political and industry interests. In the Community context this also refers to national interests.”18 The importance of making agencies independent is explained by the Commission as follows:

It is particularly important that [agencies] should have genuine autonomy in their internal organisation [sic] and functioning if their contribution is to be effective and credible. The independence of their technical and/or scientific assessments is, in fact, their real raison d’être. The main advantage of using the agencies is that their decisions are based on purely technical evaluations of very high quality and are not influenced by political or contingent considerations.19

It needs to be noted, however, that while all EU agencies generally can be considered autonomous bodies, each individual agency may enjoy more or less autonomy by design and in reality.20 The so-called independent EU agencies can also be characterized by the label “regulatory” understood in a broad sense:

17 Groenleer chooses to use the term “autonomous” instead of “independent” with regard to EU agencies because “an autonomous actor is granted a level of autonomy by other actors or will attempt to ascertain a degree of control over his or her own affairs, but this does not mean that he or she is completely free, without restrictions, independent.” Martijin Groenleer, THE AUTONOMY OF EUROPEAN UNION AGENCIES: A COMPARATIVE STUDY OF INSTITUTIONAL DEVELOPMENT 29 (2009). See also, Scholten, Independent, Hence Unaccountable?, supra note 3 (arguing that the term “independent” is misleading).

18 Vos, Independence, Accountability, and Transparency, supra note 16, at 123; see also Resolution of 21 Oct. 2008 on a Strategy for the Future Settlement of the Institutional Aspects of Regulatory Agencies, EUR. PARL. DOC. (INI 2008/2103) para. 28 (2008); RAMBOLL EVALUATION, supra note 5, at 11. 19 According to the Commission, independence is to be ensured in the following way:

[G]ranting of legal personality, budgetary autonomy, collective responsibility and own powers of the administrative board, the independence of the director, of the members of the scientific committees and of the boards of appeal, etc.” and “the director, the members of the scientific committees and of the boards of appeal shall also undertake to act independently of any external influence. To this end, they shall make a written declaration of commitment and a written declaration of interests every year.

Draft Interinstitutional Agreement on the Operating Framework for the European Regulatory Agencies, EUR. PARL. DOC. (COM 59) 5–6 (2005).

20 See Groenleer, supra note 17.

2014] Limits of Agencification in the European Union 1229

Regulatory activities do not necessary involve the adoption of legal acts. They may also involve measures of a more incentive nature, such as co-regulation, self-regulation, recommendations, referral to the scientific authority, networking and pooling good practice, evaluating the application and implementation of rules, etc. It therefore follows that a European “regulatory” agency does not necessarily have the power to enact binding legal norms.21

This distinguishes regulatory EU agencies from the executive type of agencies established by Council Regulation (EC) No 58/2003. These are the so-to-speak “assistant” agencies of the Commission, created by the Commission on a temporary basis wherever necessary to implement and manage certain programs. For instance, the Education, Audiovisual and Culture Executive Agency was created to control management aspects, such as drawing up calls for proposals, selecting projects, and signing project agreements of fifteen Community funded programs and actions in the fields of education and training, active citizenship, youth, audiovisual and culture.22 The Commission supervises these agencies and may dissolve them. As of this writing, six executive agencies exist.23 2. EU Agencies’ Historical Roots and Reasons for Creation EU agencies have become a tool to address various challenges of the integration process and technological change: “[T]o a large extent, the creation of European agencies must be seen as a response to . . . functional needs,”24 which seem to have come, roughly speaking, in three waves starting in the 1970s.25

21 Draft Interinstitutional Agreement on the Operating Framework for the European Regulatory Agencies, supra note 19, at 4.

22 See Education, Audiovisual and Culture Executive Agency, EUR. UNION, http://europa.eu/about-eu/agencies/executive_agencies/eacea/index_en.htm (last visited Nov. 25, 2014).

23 These are: Education, Audiovisual and Culture Executive Agency (EACEA); European Research Council Executive Agency (ERC Executive Agency); Executive Agency for Competitiveness and Innovation (EACI); Executive Agency for Health and Consumers (EAHC); Research Executive Agency (REA); and Trans-European Transport Network Executive Agency (TEN-T EA). Agencies and Other EU Bodies, EUR. UNION, http://europa.eu/about-eu/agencies/index_en.htm (last visited Nov. 25, 2014).

24 Renaud Dehousse, Regulation by Networks in the European Community: The Role of European Agencies, 4 J. EUR. PUB. POL’Y 246, 255 (1997).

25 See Vos, Agencies and the European Union, supra note 7, at 114–15.


The first wave of EU agencies came in 1975 when the first two agencies, namely the European Centre for the Development of Vocational Training (Cedefop) and the European Foundation for the Improvement of Living and Working Conditions (Eurofound), were created “to establish, inter alia, action programmes [sic] on social and environmental policy.”26 With EU regulations expanding in number and in technical detail after the EU faced another round of integration—after the Single European Act and the Maastricht Treaty—it became necessary to create bodies that could provide technical expertise and support policy- and decision-making tasks of the Commission. “Delegating technical work to independent agencies would expand the EU’s regulatory capacity while allowing the Commission to concentrate on its core competences, namely policy-making and long-term strategic planning.”27 Thus, by the end of the 1990s, during the so-to-speak second wave, eleven new agencies appeared.28 Finally, the Twenty-First Century witnessed further agency proliferation during the third wave, which seems to be partly a response to the so-called transparency deficit that fell upon the comitology system. EU agencies were thought to enhance the transparency of EU decision-making directly by “bringing the Union closer to its citizen,” 29 and indirectly by placing agencies all over the Union and, for example, inviting various interest groups to participate in agencies’ decision-making. As of this writing, at least thirty-five EU agencies exist.30 26 Richard H. Lauwaars, Auxiliary Organs and Agencies in the E.E.C., 16 COMMON MKT. L. REV. 365, 368 (1979). 27 Daniel Kelemen, The Politics of “Eurocratic” Structure and the New European Agencies, 25 W. EUR. POL. 93, 101 (2002). 28 The European Environment Agency (1990); The European Training Foundation (1990); The European Agency for the Evaluation of Medicinal Products (1993; today The European Medicines Agency); The European Monitoring Centre for Drugs and Drug Addiction (1993); The Community Plant Variety Office (1994); The Office for Harmonization of the Internal Market (1994); The European Agency for Safety and Health at Work (1994); The Translation Centre for the Bodies of the European Union (1995); The European Police Office (1995); The European Monitoring Centre on Racism and Xenophobia (1997, today The European Union Agency for Fundamental Rights); and The European Police College (2000).

29 Jens-Peter Schneider, A Common Framework for Decentralized EU Agencies and the Meroni Doctrine, 61 ADMIN. L. REV. 29, 33 (2009) (“The spread of agencies beyond Brussels and Luxembourg adds to the visibility of the Union and of course - although not mentioned by the Commission - to options for political bargaining.”).

30 See SCHOLTEN, POLITICAL ACCOUNTABILITY, supra note 11, at 53–54. These include: Agency for the Cooperation of Energy Regulators (ACER); Body of European Regulators for Electronic Communications (BEREC); Community Plant Variety Office (CPVO); European Agency for Safety and Health at Work (EU-OSHA); European Agency for the Management of Operational Cooperation at the External Borders (Frontex); European Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (IT Agency); European Asylum Support Office (EASO); European Aviation Safety Agency (EASA); European Banking Authority (EBA); European Centre for Disease Prevention and Control (ECDC); European Centre for the Development of Vocational Training (Cedefop); European Chemicals Agency (ECHA); European Environment Agency (EEA); European Fisheries Control Agency (EFCA); European Food Safety Authority (EFSA); European Foundation for the Improvement of Living and Working Conditions (Eurofound); European GNSS Agency (GSA); European Institute for Gender Equality (EIGE); European Insurance and Occupational Pensions

2014] Limits of Agencification in the European Union 1231 At the same time, Kelemen and Tarrant suggest that “while there may be functional benefits to be gained from creating EU-level regulatory bodies,”31 their creation and designs are not determined only “by functional imperatives—indeed, sometimes such bodies may be designed to be ineffective. Rather than functional necessities, political considerations drive” the agencification process and “the fundamental choice of whether to create a centralized [sic], EU-level body or instead to establish a looser network of national regulatory authorities.”32 According to them, “since the beginning of the 1990s, it has become clear that Member State governments are unwilling to countenance any significant expansion of the Commission and instead prefer delegating new regulatory tasks to bodies outside the Commission hierarchy.”33 In this light, agencies represent an attempt “to solve the traditional Community administrative deficit through instruments that may be politically acceptable both to the national governments and the supranational institution . . . without implying a direct reinforcement of the Commission.”34

Thus, a mixture of functional necessity with acceptability for relevant veto players involved in the creation of agencies offers a more nuanced explanation of the proliferation of EU agencies. 3. EU Agencies’ Powers Various classifications exist in relation to EU agencies’ functions. Chiti distinguishes between agencies with production and dissemination of information functions, advisory functions, and assistant and administrative decision-making functions.35 Lavrijssen and Ottow view EU agencies as “European supervisory authorities” because they are “involved in supervising and regulating markets or market parties, especially if they advise on the adoption of new European legislation and policies

Authority (EIOPA); European Maritime Safety Agency (EMSA); European Medicines Agency (EMA); European Monitoring Centre for Drugs and Drug Addiction (EMCDDA); European Network and Information Security Agency (ENISA); European Police College (Cepol); European Police Office (Europol); European Railway Agency (ERA); European Securities and Markets Authority (ESMA); European Training Foundation (ETF); European Union Agency for Fundamental Rights (FRA); Office for Harmonization in the Internal Market (OHIM); European Union’s Judicial Cooperation Unit (Eurojust); Translation Centre for the Bodies of the European Union (CdT); European Defence Agency (EDA); European Union Institute for Security Studies (EUISS); and European Union Satellite Centre (EUSC).

31 Daniel Kelemen & Andrew D. Tarrant, The Political Foundations of the Eurocracy, 34 W. EUR. POL. 922, 923 (2011).

32 Id.

33 Id. at 929. 34 Chiti, supra note 7, at 1398.

35 See Chiti, supra note 7, at 1395.


and monitor uniform application of EU law.”36 All in all, “EU agencies can be created to gather information, enhance cooperation, provide service, advise, take decisions which affect third parties, and supervise the implementation of EU law.”37 Some suggest that EU agencies do not seem “powerful enough” in the sense that most do not formally enjoy policy-making discretion,38 yet “influence does not equal formal powers.”39 An increasing number of scholars, however, point to the fact that de facto impact of EU agencies may not necessarily correspond to agencies’ de jure powers.40 Whose tasks do agencies exercise? In its various documents, “the Commission has presented itself as the principal that must evaluate the possibility of delegating a share of its powers to autonomous bodies, which will assist in completing its tasks and operating the internal market.”41 From this viewpoint, EU agencies are merely auxiliaries of the Commission.42 At the same time, EU agencies have been assigned tasks that have been previously exercised by national authorities, the Council, or its “fragmentary and opaque structures.”43 Thus, nearly every EU agency has an institutional or procedural forerunner.44 Furthermore, some

36 Saskia Lavrijssen & Annetje Ottow, Independent Supervisory Authorities: A Fragile Concept, 39 LEGAL ISSUES ECON. INTEGRATION 419, 423 (2012).

37 SCHOLTEN, POLITICAL ACCOUNTABILITY, supra note 11, at 58. 38 See, e.g., Ronald van Ooik, The Growing Importance of Agencies in the EU: Shifting Governance and the Institutional Balance, in GOOD GOVERNANCE AND THE EUROPEAN UNION: REFLECTIONS ON CONCEPTS, INSTITUTIONS AND SUBSTANCE 25, 152 (Deirdre Curtin & Ramses Wessel eds., 2005) (concluding that the importance of EU agencies should not be exaggerated at the moment, at least before they have been delegated “more intense responsibilities”). 39 Thomas Christiansen, Out of the Shadows: The General Secretariat of the Council of Ministers, 8 J. LEGIS. STUD. 80, 80 (2002). 40 See SCHOLTEN, POLITICAL ACCOUNTABILITY, supra note 11, at 3–4.

41 DEIRDRE CURTIN, EXECUTIVE POWER OF THE EUROPEAN UNION: LAW, PRACTICES, AND THE LIVING CONSTITUTION 145 (2009).

42 See Dehousse, supra note 7, at 792.

43 CURTIN, supra note 41, at 164. 44 For example, Technical Assistance Units preceded the European Training Foundation, the comitology system of two scientific committees preceded the EMEA, procedural mechanisms within the EP and within the Commission preceded the European Monitoring Centre for Drugs and Drug Addiction, and the Community programs of the CORINE program preceded the EEA as well as activities which were undertaken at an intergovernmental level. See, e.g., Alexander Kreher, Agencies in the European Community: A Step Towards Administrative Integration in Europe, 4 J. EUR. PUB. POL’Y 225, 233 (1997) (describing how, in two cases, the emergence of an agency took place alongside the decision to establish a new Community regime—Community plant variety protection and the Community trademark); Ellen Vos, Reforming the European Commission: What Role to Play for the EU Agencies?” 37 COMMON MKT. L. REV. 1113, 1113 (2000) [hereinafter Vos, Reforming the European Commission] (showing that

2014] Limits of Agencification in the European Union 1233 agencies, such as the recently created Agency for the Cooperation of Energy Regulators (2009), constitute “an institutionalisation [sic] of the previously existing informal regulatory networks.”45 Considering different levels where EU agencies’ functions originate, “a partial ‘fusion’ between the two orders of authorities,” national and European, has taken place.46 In the case of ESMA’s exclusive supervisory and enforcement powers in relation to registration, supervision, and sanctioning of credit rating agencies, one can speak of a transfer of almost all respective powers from the national to the EU level. 4. EU Agencies Within the EU Institutional Constellation The silence on EU agencies in the EU Treaties has raised the question of where these agencies’ coordinates lie on the EU institutional map, which is in turn important with respect to the questions of institutional balance and these agencies’ democratic legitimacy and accountability. The situation regarding EU executive agencies is clear. The Commission may create and abolish them and it is also the Commission that can be held responsible for them before the European Parliament—and hence before the people.47 The so-called EU independent regulatory agency is not directly under the Commission’s supervision. Because most of the existing agencies’ founding acts have been passed by the Council with the increasing involvement of the European Parliament48 and because these institutions may enjoy supervisory functions over EU agencies (see the founding acts of individual agencies), a direct line between the EU representative institutions and EU agencies could be established. This would in turn position agencies beneath the EU institutions. From the perspective of the origins of agency functions, EU agencies seem to be subordinate to the Commission and the Member States, whose powers may have been given to agencies have been created to replace various committees of the Commission and arguing that the visibility of agencies facilitates holding the EU structures to account).

45 MARCO ZINZANI, MARKET INTEGRATION THROUGH ‘NETWORK GOVERNANCE:’ THE ROLE OF EUROPEAN AGENCIES AND NETWORKS OF REGULATORS 156 (2012); see generally David Levi-Faur, Regulatory Networks and Regulatory Agencification: Towards a Single European Regulatory Space, 18 J. EUR. PUB. POL’Y 810 (2011) (discussing how agencies replace networks). 46 Eduoardo Chiti, The Emergence of A Community Administration: The Case of European Agencies, 37 COMMON MKT. L. REV. 309, 342 (2000). 47 See Council Regulation (EC) No 58/2003 of 19 December 2002, 2003 O.J. (L 11) (laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programs).

48 See SCHOLTEN, POLITICAL ACCOUNTABILITY, supra note 11, at 394–463 (describing how, of the existing thirty-five EU independent regulatory agencies, seventeen agencies have been created with the European Parliament as co-legislator; these are mostly the agencies created in the third wave since 2000. The European Parliament gave its opinion to the Council in fifteen cases and did not participate in the creation of three agencies of the former second pillar).


agencies while gaining some measure of control over such agencies via, for example, agency management boards. Thus, as EU agencies “operate outside the Commission and Council”49 and are “a matter of secondary Community law,”50 EU agencies can be placed below the EU institutions and Member States. Widely discussed by academics,51 yet never addressed by the Court, is the question of whether EU agencies upset the institutional balance. The interrelations between the different EU institutions and their respect of each other’s boundaries have become known as the principle of institutional balance. This is defined by the Court of Justice of the European Union in the Chernobyl case as “a system for distributing powers among the different Community institutions, assigning to each institution its own role in the institutional structure of the Community and the accomplishment of the tasks entrusted to the Community.”52 While the principle of institutional balance does not explicitly derive from the Treaty, the Court did link it to Article 7 TEC,53 which is a part of Article 13 TEU54 today by stating that each institution shall act within the limits of the powers conferred on it in the Treaties. The creation of and delegation of power to EU agencies affects the EU institutional balance in at least two ways. First, the delegation of decision-making to agencies changes how the main institutions participate in making certain decisions. For example, in the past, when the Council could create an agency without the European Parliament’s legislative involvement, it could shield away the exercise of certain powers from the European Parliament. In turn, Parliament could have had more influence if the Commission—and not the agency—was the recipient of those powers. Second, the creation of agencies raises the question of who holds EU agencies to account and how. In the absence of a relevant Treaty provision and any general framework for agencies’ operation and accountability, the balance of controlling powers between the main institutions is not based on a treaty. The involvement of, for instance, the Council and the European Parliament differs

49 Paul Craig, The Community Political Order, 10 IND. J. GLOBAL LEGAL STUD. 79, 116 (2003).

50 Van Ooik, supra note 38, at 128. 51 See generally, Jean-Paul Jacqué, The Principle of Institutional Balance, 41 COMMON MKT. L. REV. 383 (2004); Vos, Reforming the European Commission, supra note 44. 52 European Parliament v. Council, CJEU Case C-70/88, 1990 E.C.R. I-2041, I-2072, para. 21.

53 Consolidated Version of the Treaty Establishing the European Community art. 7, Dec. 29, 2006, 2006 O.J. (C 321) 1, 12 [hereinafter TEC].

54 Consolidated Version of the Treaty on European Union art. 13, Mar. 30, 2010, 2010 O.J. (C 83) 1, 53 [hereinafter TEU].

2014] Limits of Agencification in the European Union 1235 considerably from agency to agency.55 In fact, excessive diversity dominates the political accountability of EU agencies.56 Excessive diversity is harmful to the political accountability and legitimacy of agencies and to the Union at large in several respects. From the accountability perspective, too much diversity disperses those institutions who hold agencies to account ("accountability forum“)57 and their responsibilities. This increases the chances of creating accountability deficits, shadows the existing shortages and excesses, and causes other accountability problems.58 For example, while an obligation to submit an annual report to the EU representative institution seems to be the general practice, the Community Plant Variety Office (CPVO) has no such obligation.59 The President of CPVO claims to not have any relationship with the European Parliament even though the agency is formally overseen by the Committee on Agriculture and Rural Development.60 Excessive diversity also hinders EU legitimacy because it does not justify why the differences should exist.61 This leads further to questions. For example, in accordance with which Treaty provision does the European Parliament have the power to question officials of entities other than those that are specifically provided for in the Treaty?62 Or, given that only directors of some agencies are subject to the hearings’ obligations,63 why

55 SCHOLTEN, POLITICAL ACCOUNTABILITY, supra note 11, at 391–463 (describing all individual agencies).

56 See, e.g., id. at 172–73. For instance, EU agencies’ directors can be appointed by twelve different procedures and can be removed in five different ways. Similar procedures may receive different legal labels in agencies’ founding acts, such as evaluation and review clauses. Moreover, founding acts may simply lack evaluation, review, and removal clauses. Also, reporting obligations vary greatly with respect to the institutions-recipients of agencies’ reports and specificity of such obligations. Furthermore, whereas EU agencies’ founding acts can prescribe three types of hearings obligations before the European Parliament and/or the Council, they are not generally applied. Only eighteen (out of thirty-five) founding acts prescribe appointment hearings for candidates to head EU agencies, sixteen (out of thirty-five) agencies’ directors may be invited to report on the performance of the agency, and in six (out of thirty-five) cases the founding acts provide a possibility to question an agency’s director before the extension of the term of office. Id.

57 See generally Mark Bovens, Analysing and Assessing Public Accountability: A Conceptual Framework, 13 EUR. L.J. 447 (2007).

58 Id. 59 Id.

60 Id. See also Rules of Procedure of the European Parliament, EUROPEAN PARLIAMENT, http://www.europarl.europa.eu/sides/getLastRules.do?language=EN&reference=ANN-07 (last visited Nov. 25, 2014) 61 Id.

62 See, e.g., Consolidated Version of the Treaty on the Functioning of the European Union art. 47, May 9, 2008, 2008 O.J. (C 115) 1, 57 [hereinafter TFEU] (relating to the Commission and the Council).

63 SCHOLTEN, POLITICAL ACCOUNTABILITY, supra note 11, at 74.


are all officials of the same rank or level—agency directors for example—not obligated to be subject to hearings before the European Parliament in the same way? Not only do the agencies’ founding regulations do not explain the existing diverse accountability obligations, but a number of agencies have also been created without good reason.64 The absence of explicit Treaty authorization for agency creation, the lack of clear reasons why agencies are necessary, and, at times, missing accountability obligations puts the legitimacy of EU agencies’ under pressure. II. The Meroni-Romano Non-Delegation Doctrine and the Former Limits of Delegation Is the delegation of powers to EU agencies lawful? So far this question has been addressed in light of the Meroni65 and Romano66 judgments.67 This section briefly analyzes these judgments and the non-delegation doctrine that they established. 1. The Meroni Non-Delegation Standard The Meroni non-delegation standard was established in 1958 within the framework of the European Coal and Steal Community (ECSC). In short, it allowed only for the delegation of executive powers. Such powers could not include policymaking discretion and had to correspond to the responsibilities that the delegating authority could exercise itself, including obligations like reporting that the delegating institutions might have been subject to by the Treaties.68 The Meroni case concerned the Italian steel company, Meroni, which refused to pay a sum of money to the Imported Ferrous Scrap Equalization Fund, a private company under Belgian law operating under the responsibility of the High Authority, the predecessor of the European Commission.69 The Fund’s task was to administer a special obligatory ferrous scrap equalization system created by the High Authority with a further goal of keeping ferrous scrap prices low.70 The steel company

64 See RAMBOLL EVALUATION, supra note 5, at i–ii.

65 Meroni & Co., Industrie Metallurgische S.p.A. v. High Authority of the Eur. Coal & Steel Cmty, CJEU Case C-9/56, 1958 E.C.R. 135.

66 Giuseppe Romano v. Institut National D’assurance Maladie-Invalidité, CJEU Case C-98/80, 1981 E.C.R. 1241.

67 But see Merijn Chamon, EU Agencies: Does the Meroni Doctrine Make Sense? 17 MAASTRICHT J. 281 (2010) (questioning the relevance of the Meroni judgment to the agencies).

68 See Meroni & Co., CJEU Case C-9/56 at 152. 69 See id. at 135.

70 See Griller & Orator, supra note 16, at 15–16.

2014] Limits of Agencification in the European Union 1237 challenged the legality of the bill it received and questioned the possibility for the High Authority to delegate powers, because the Treaty did not explicitly provide for such delegation.71

While the Court concluded that the delegation at stake was illegal, it addressed the possibility of delegation at the EU level, because the Treaty did not provide explicitly for that.72 Regarding Article 53 of the ECSC Treaty, the Court stated that the delegation was not excluded, and that the institutions might use assistant bodies having a distinct legal personality.73 In Meroni, the power of the High Authority “to authorize or itself make the financial arrangement mentioned in Article 53 of the Treaty” gave it the right “to entrust certain powers to such bodies subject to conditions to be determined by it and subject to its supervision.”74 However, such delegation was allowed only if it was “necessary for the performance of the tasks set out in” respective articles and “compatible with” the Treaty.75 Furthermore, the Court ruled that the delegating authority “could not confer upon the Authority receiving the delegation powers different from those which the delegating authority itself received under the Treaty.”76 In Meroni, the Court found that if the delegating authority would have exercised the delegated powers itself, when issuing decisions, it would have been bound by certain principles established by the Treaty, such as the principles to state reasons and to publish an annual report.77 But as the agencies at stake received those powers arguably without any further guidance on how they should implement the delegated tasks, they were not bound by relevant Treaty obligations, and hence received more extensive powers than the delegating authority enjoyed itself, which violated the Treaty.78 While Meroni showed that delegation was possible in principle, the Court made it clear that not all kinds of powers were delegable.79 The consequences of delegation differ depending on the nature of powers that are delegated.80 Here, two categories of powers were distinguished: “[C]learly defined executive powers the exercise of

71 See Meroni & Co., CJEU Case C-9/56 at 151.

72 See id. at 151–52. 73 See id. at 151.

74 Id.

75 Id. 76 Id. at 150.

77 See id. at 149.

78 See id. at 150. 79 See id. at 152.

80 See id.


which can . . . be subject to strict review in the light of objective criteria determined by the delegating authority,” and powers that involve discretion, which can “make possible the execution of actual . . . policy.”81 The Court accepted the delegation of the first kind of powers.82 The Court concluded that the second kind hindered the balance of powers guaranteed by the Treaty.83 Although the Meroni ruling dates to the beginning of EU integration in the 1950s, in more recent judgments the Court of Justice of the European Union confirmed its relevance for delegation: “[T]he powers conferred on an institution include the right to delegate,”84 and that “when the Community legislature wishes to delegate its power to amend aspects of the legislative act at issue, it must ensure that that power is clearly defined and that the exercise of the power is subject to strict review in the light of objective criteria.”85 2. The Romano Non-Delegation Standard The Romano judgment is the other important judgment concerning delegation.86 The European Court of Justice established an additional non-delegation criterion: The Council could not delegate to agencies the power to adopt acts “having the force of law.”87 The agency at issue was the Administrative Commission, which was created by a Council Regulation to assist the Commission by, among other things, dealing “with all administrative questions and questions of interpretation arising from” its founding Regulation and subsequent Regulations in the area of application of social security schemes to employed persons and their families moving within the Community.88

81 See id. (emphasis added). 82 Id. (“A delegation of the first kind cannot appreciably alter the consequences involved in the exercise of the powers concerned, whereas a delegation of the second kind, since it replaces the choices of the delegator by the choices of the delegate, brings about an actual transfer of responsibility.”).

83 Id. at 151 (“[T]o delegate a discretionary power, by entrusting it to bodies other than those which the Treaty has established to effect and supervise the exercise of such power each within the limits of its own authority, would render that guarantee ineffective.”).

84 P Carmine Salvatore Tralli v Eur. Cent. Bank, CJEU Case C-301/02, 2005 E.C.R. I-4071, at para. 41.

85 Alliance for Natural Health v. Sec’y of State for Health, CJEU Joined Cases C-154/04 & C-155/04, 2005 E.C.R. I-6451, para. 90.

86 Giuseppe Romano, CJEU Case C-98/80. 87 Id. at para. 20.

88 Regulation (EEC) 1408/71, art. 81, 1971 O.J. 1, 444.

2014] Limits of Agencification in the European Union 1239 Mr. Romano was entitled to pensions in two Member States: Belgium and Italy.89 The question arose in relation to the amount of pensions he would receive in the two countries.90 The Belgian relevant institution decided to give him a reduced pension basing its decision on—among other things—a pension calculation scheme issued by the Administrative Commission.91 The Court held that the decision of the agency could have provided guidance but was not of such a nature as to bind national authorities to use certain methods of calculation.92 The Court’s decision was based on Articles 155, 173, and 177 of the EEC Treaty, which established that the power to issue legally binding decisions belongs only to the Commission and provided for judicial review of only the Commission and Council’s decisions.93 The delegation at question was unlawful because, under the EEC Treaty, no agencies were envisaged among the possible authors of legally binding decisions and no judicial review of agency decisions was possible.94 All in all, the Meroni-Romano doctrine seems to be best characterized by the word non-delegation. It imposes a rather strict limitation on the nature of delegated powers within the EU: The delegation of executive powers involving no discretion is allowed, but agencies cannot issue acts with the force of law. While the Meroni doctrine “has stood for approaching 50 years as a constitutional limit to delegation,”95 in practice, EU agencies have become the recipients of discretionary powers along with the power to issue legally binding decisions.96 The most far-reaching delegation happened in the aftermath of the 2008 financial crisis resulting in the creation of the three EU financial authorities with regulatory and—exclusive—supervisory powers.97 This delegation stands contrary to Romano, because its decisions would have to be respected by competent national authorities and 89 See Giuseppe Romano, CJEU Case C-98/80 at para. 3. 90 See id. at para. 1, 14.

91 See id. at para. 5, 7, 10.

92 See id. at para. 20. 93 See id.

94 See id. It has to be noted however that there is no consensus among scholars on the interpretation of the Romano judgment. Chamon gave an overview of the relevant scholarship. See Merijn Chamon, EU Agencies: between Meroni and Romano or the Devil and the Deep Blue Sea. 48 C. M. L. REV. 1055 (2011). 95 Andreas Orator, Empowering European Agencies: Perspectives and Limits of European Democratic Legitimacy, in PERSPECTIVES AND LIMITS OF DEMOCRACY 23, 34 (Harald Eberhard, Konrad Lachmayer, Gregor Ribarov & Gerhard Thallinger eds., 2007).

96 See SCHOLTEN, POLITICAL ACCOUNTABILITY, supra note 11, 3–4 n.14. 97 See Miroslava Scholten & Annetje Ottow, Institutional Design of Enforcement in the EU: the Case of Financial Markets, UTRECHT L. REV. (forthcoming Dec. 2014).


contrary to Meroni because it involves discretionary power. The following section focuses, therefore, explicitly on the origins and powers of one of the new European financial authorities, the European Securities and Market Authority. This delegation resulted in the ESMA-shortselling judgment analyzed in subsequent sections. III. Agencification in the Case of the EU Financial Markets: The Origins and Powers of ESMA The current architecture of financial market regulation has its origins in the so-called Lamfalussy process chaired by Baron Alexandre Lamfalussy, which resulted in the Final Report of the Committee of Wise Men on the Regulation of European Securities Markets.98 One of the major conclusions of the report was that the existing regulatory system at that time was too slow, too rigid, and too ambiguous.99

Therefore, “a higher degree of convergence and greater Community presence in the field of enforcement” was thought to be necessary.100 To this end, the Lamfalussy process introduced a new four-level law-making model in the area of financial services: (1) Adopt framework principles in specific areas of substantive law by Directives or Regulations under the ordinary legislative procedures of Article 294 TFEU;101 (2) solidify framework principles by the European Commission by means of implementing measures adopted under Comitology procedures;102 (3) advise the Commission on the feasibility of measures proposed at level (2) by the level 3 committees—the Committee of European Securities Regulators (CESR), the Committee of European Banking Supervisors (CEBS), the Committee of European Insurance, and the Occupational Pensions Supervisors (CEIOPS);103 and (4) envisage timely and correct transposition of EU legislation into national law and taking action against Member States if transposition was not in compliance with European law.104 While the Lamfalussy system has enhanced cooperation between EU Member States, the 2008 financial crisis challenged its foundations and revealed the necessity for reform of the system by furthering integration. The de Larosière report,

98 See COMM. OF WISE MEN, FINAL REPORT ON THE REGULATION OF EUROPEAN SECURITIES MARKETS (2001), http://ec.europa.eu/internal_market/securities/docs/lamfalussy/wisemen/final-report-wise-men_en.pdf. 99 See Takis Tridimas, EU Financial Regulation: Federalization, Crisis Management, and Law Reform, in THE EVOLUTION OF EU LAW, 786 (Paul Craig & Gráinne de Búrca eds., 2011). 100 Id. at 783.

101 See COMM. OF WISE MEN, supra note 98, at 22–27.

102 See id. at 28–36. 103 See id. at 37–39.

104 See id. at 40–41.

2014] Limits of Agencification in the European Union 1241 issued by a group of experts mandated by the Commission under the chairmanship of Jacques de Larosière, demonstrated the weaknesses of the Lamfalussy architecture, including a lack of convergence and differences in enforcement laws and practices.105 The lack of binding regulatory powers of the level 3 committees was seen as a pressing problem in this regard, since stronger powers were considered to be necessary to address the inconsistencies and enforcement deficits at the national level.106 This in turn led to the transformation of the level 3 committees with non-binding powers into EU agencies with legally binding decision-making and supervisory powers.107 The new European Supervisory Structure comprises the European Systemic Risk Board (ESRB) and the European System of Financial Supervision (ESFS). The ESRB is a new independent body for macro-prudential supervision without legal personality and legally binding powers.108 However, it does enjoy soft law power through its warnings and recommendations.109 The ESFS consists of the three European Supervisory Authorities (ESAs): The European Securities and Markets Authority (ESMA), the European Banking Authority (EBA) as well as the European Insurance and Occupational Pensions Authority (EIOPA), a Steering Committee, and the national supervisory authorities.110

With respect to the ESMA, whose powers have been challenged in the to-be-discussed ESMA-shortselling case, it was created with the purpose “to protect the public interest by contributing to the short, medium and long-term stability and effectiveness of the financial system, for the Union economy, its citizens and businesses.”111 The ESMA is one of the strongest agencies in the EU because it enjoys regulatory, decision-making, and—exclusive—supervisory powers.

105 See DE LAROSIÈRE GROUP, THE HIGH-LEVEL GROUP ON FINANCIAL SUPERVISION IN THE EU, (2009), http://ec.europa.eu/internal_market/finances/docs/de_larosiere_report_en.pdf.

106 See Annetje Ottow, Europeanization of the Supervision of Competitive Markets, 18 EUR. PUB. L. 191 (2012).

107 See DE LAROSIÈRE GROUP, supra note 105, at 49.

108 See Communication from the Commission, European Financial Supervision, at 5, COM (2009) 252 final (May 27, 2009).

109 See Niamh Moloney, Reform or Revolution? The Financial crisis, EU Financial Markets law and the European Securities and Markets Authority, 60 INT’L & COMP. L. Q. 529 (2011).

110 Donato Masciandaro, Maria J. Nieto & Marc Quintyn, Will They Sing the Same Tune? Measuring Convergence in the New European System of Financial Supervisors (IMF Working Paper No. 09/142, 2009).

111 Regulation 1095/2010 of the European Parliament and of the Council of 24 November 2010 Establishing a European Supervisory Authority (European Securities and Markets Authority), Amending


The ESMA’s regulatory powers include assisting the European Commission in formulating and adopting a single rulebook applicable to all EU financial institutions.112 To this end, ESMA is entitled to propose drafts of binding and implementing technical standards in specific areas.113 It may also issue interpretative guidelines and recommendations.114 Both regulatory and implementing technical standards are adopted by the European Commission by means of Regulations or Decisions.115 Guidelines and recommendations are not legally binding on competent authorities and financial market participants, but they are not merely voluntary nor without legal effect.116 Following a comply or explain mechanism, the addressees are obliged to make every effort to comply.117 Furthermore, the ESMA’s founding Regulation provides for the procedural framework for a set of binding decision-making powers either vis-à-vis national authorities or directly vis-à-vis financial institutions.118 ESMA has the right to issue binding decisions in three fields of action which concern the breach of Union law,119 action in emergency situations,120 and settlement of disagreements between competent authorities in cross-border situations.121 The real empowerments to take such binding decisions can only be found in other legislation that refers to the ESMA Regulation. These powers allow ESMA to intervene in the relationship between national competent authorities, or in the relationship between competent

Decision No. 716/2009/EC and repealing Commission Decision 2009/77/EC, art. 1(5), 2010 O.J. (L. 331/12).

112 See NIAMH MOLONEY, THE EUROPEAN SECURITIES AND MARKETS AUTHORITY: A PERSPECTIVE FROM ONE YEAR ON 10 (2013).

113 These drafts and standards follow the procedural framework as established in Articles 10 to 14 and 15 of Regulation No 1095/2010.

114 See Regulation No 1095/2010 art. 16. 115 See id. arts. 10(4), 15(4).

116 See Eddy Wymeersch, The European Financial Supervisory Authorities or ESAs, in FINANCIAL REGULATION AND SUPERVISION. A POST-CRISIS ANALYSIS 276 (Eddy Wymeersch, Klaus J. Hopt & Guido Ferrarini eds., 2012). 117 See Regulation No 1095/2010 art. 16(3).

118 See id. arts. 17–19.

119 See id. art. 17. 120 Id. art. 18.

121 See id. art. 19.

2014] Limits of Agencification in the European Union 1243 authorities and market actors.122 In some instances, ESMA’s decisions may prevail over the previous decisions of national authorities.

Finally, while national supervisors remain predominantly responsible for day-to-day supervision of individual entities, ESMA has a range of supervisory coordination powers.123 These powers include the participation in and coordination of colleges of supervisors,124 the identification and management of systemic risk and the development of resolution structures, in cooperation with the ESRB,125 the promotion of a common supervisory culture,126 peer review,127 supervisory coordination,128 market assessment,129 and information-gathering.130 Moreover, Regulation 1060/2009131 has delegated very important exclusive supervisory powers over credit rating agencies to ESMA.132 These include the powers to examine and take copies of any relevant records and material, ask for oral explanation, summon and hear persons, require telephone and data traffic records, and interview persons.133 These powers are not available even to the European Parliament in its investigatory capacity. All in all, the regulatory, decision-making, and supervisory powers of ESMA are far-reaching, especially in comparison with the competences of all other EU agencies. The accumulation of its different tasks results in synergy effects that greatly

122 See Pierre Schammo, The European Securities and Markets Authority: Lifting the Veil on the Allocation of Powers, 48 C. M. L. REV. 1885 (2011).

123 See Communication from the Commission: European Financial Supervision, at 12, COM (2009) 252 final (May 27, 2009).

124 See Regulation No 1095/2010 art. 21.

125 See id. arts. 22–27. 126 See id. art. 29.


128 See id. art. 31. 129 See id. art. 32.


131 See Regulation 1060/2009 of the European Parliament and of the Council of 16 September 2009 on Credit Rating Agencies 2009 O.J. (L 302/1).

132 See id. 133 Article 23c of Regulation (EC) 1060/2009 was introduced by Regulation 513/2011 of the European Parliament and of the Council of 11 May 2011 Amending Regulation (EC) No 1060/2009 on Credit Rating Agencies 2011 O.J. (L 145/30).


strengthen the role of this EU agency vis-à-vis the national authorities.134 In light of the discussed Meroni-Romano non-delegation doctrine, it is in fact ESMA’s strong intervention powers in the case of short-selling that have led the UK to bring an action for annulment before the CJEU. This action has resulted in the judgment in case C-270/12 and arguably in a new delegation doctrine to be discussed below. C. The ESMA-Shortselling Case I. Facts

On May 13, 2012, the United Kingdom of Great Britain and Northern Ireland brought an action for annulment under Article 263 TFEU to the Court of Justice of the European Union. It sought the annulment of Article 28 of Regulation (EU) No 236/2012 of the European Parliament and of the Council of 14 March 2012 on short selling and certain aspects of credit default swaps. This article vests ESMA with certain powers to intervene under certain conditions—through legally binding acts—in Member State financial markets if there is a “threat to the orderly functioning and integrity of financial markets or to the stability of the whole or part of the financial system in the Union.” The ESMA is empowered by Article 28(1) of Regulation No 236/2012 to impose notification and disclosure requirements on natural and legal persons and to prohibit the entry into certain transactions or to subject such transactions to conditions. A measure adopted by ESMA under Article 28 prevails over any previous measure taken by a national supervisory authority. In its pleadings, the UK put forward four arguments regarding the Meroni and Romano restrictions, Articles 290-291 and 114 TFEU respectively.135 First, the UK argued a breach of the principles relating to the delegation of powers laid down in Meroni. It claimed that the ESMA’s determination as to whether the criteria set out in Article 28(2) are met entails “a very large measure of discretion.”136 According to the UK, under Article 28(1), ESMA has a wide range of choices as to which measure or measures to impose and as to any exceptions that may be specified. Those choices have very significant economic and financial policy implications.137 Besides, the UK stated that ESMA has extremely wide-

134 Merijn Chamon, The Influence of “Regulatory Agencies” on Pluralism in European Administrative Law, 5 REV. OF EUR. ADMIN. L. 61, 89 (2012).

135 Note that the UK did not call into question the establishment of ESMA, and hence its founding regulation, which in light of Article 263 TFEU can be challenged within two months of the publication of the regulation. This is not surprising, however, because the possibility of creating an agency on the basis of Article 95 TEC (114 TFEU) was challenged by the UK and was upheld by the Court in the ENISA judgment, United Kingdom v. Parliament and Council, CJEU Case C-217/04, 2006 E.C.R. I-03771.

136 U.K. and N. Ir. v. European Parliament and the Council of the European Union, CJEU Case C-270/12, para. 28 (Jan. 22, 2014), http://curia.europa.eu/ [[hereinafter ESMA-shortselling].

137 Id. at para. 30.

2014] Limits of Agencification in the European Union 1245 ranging discretion when deciding how to take account of the factors set out in Article 28(3), which include inter alia the impact on liquidity and the level of uncertainty for market participants and are “highly subjective.”138

Second, the UK pleaded a breach of the principle established in Romano. It argued that Article 28 authorizes ESMA to adopt quasi-legislative measures of general application,139 because a prohibition on short sales affects the entire class of persons engaging in transactions in that instrument or category of instruments. It observed that at issue, therefore, was not an individual decision or a bundle of individual decisions—even if confined to a very limited range of stocks—but a “measure of general application having the force of law.”140

Third, the UK submitted that the delegation of powers to an EU agency as those provided for in Article 28 was incompatible with the Treaties, because Articles 290 and 291 TFEU circumscribed the circumstances in which certain powers could be given to the Commission.141 According to the UK, any prohibition on short sales under Article 28(1) was intended to bind the entire class of persons engaging in transactions in that instrument or category of instruments. It was therefore a measure of general application and could not be entrusted to an agency.142

Fourth, the UK questioned the legal basis (e.g., Article 114 TFEU) for Article 28 of Regulation No 236/2012 which authorizes ESMA to take decisions affecting natural or legal persons directly. According to the UK, Article 114 TFEU did not empower the EU legislature to take individual decisions that were not of general application or to delegate to the Commission or a Union agency the power to adopt such decisions.143 Furthermore, decisions directed at financial institutions overriding those made by competent national authorities could not be regarded as Article 114 TFEU harmonization measures.144


139 Id. at para. 56. 140 Id. at para. 57.


142 Id. at para. 70. 143 Id. at para. 89.



II. What the CJEU Did and Did Not Say

Advocate-General Jääskinen upheld only the last point of the UK in his opinion before the Court, noting that Article 352 TFEU (requiring unanimity in the Council and not qualified majority as in Article 114 TFEU) would be the correct legal basis of Article 28 of Regulation No 236/2012, and that it would have opened up an important channel for enhanced democratic input. However, the Grand Chamber of the Court dismissed all four arguments of the plaintiff. Regarding the first plea—concerning the alleged violation of the Meroni non-delegation criteria—the Court held that Article 28 of Regulation No 236/2012 did not confer any autonomous power on ESMA that went beyond the bounds of the regulatory framework established by ESMA’s founding Regulation. The exercise of the powers under Article 28 was—unlike the powers delegated to the bodies concerned in the Meroni case—circumscribed by various conditions and criteria that limit ESMA’s discretion. According to the Court, the powers available to ESMA under Article 28 were precisely delineated and amenable to judicial review in the light of the objectives established by the delegating authority. Furthermore, ESMA’s margin of discretion was circumscribed by both the consultation requirement and the temporary nature of the measures authorized. Those powers thus complied with the requirements laid down in Meroni and did not, therefore, imply that ESMA was vested with a “very large measure of discretion” incompatible with the EU Treaty. The Court did not say, however, how far Meroni’s classification of powers would be applicable in the future if discretionary powers subject to certain restrictions were now allowed to be delegated.

With respect to the second plea, the violation of the Romano restriction to entrust agencies with a power to adopt acts “having the force of law,” the Court noted the change of the institutional framework established by the EEC and TFEU treaties, which seemed to imply that the Romano restriction became irrelevant. The Court inferred certain implied powers from Article 263 and 277 TFEU, which establish the judicial review of the agencies’ acts, to create agencies and delegate them powers to adopt measures of general application. While, in Romano, the Court referred to Article 155 EEC Treaty as one of the three Treaty provisions for overturning the legally-binding effect of the agency’s decision, it did not seem to follow a similar logic in the new case. Instead, the Court distinguished the powers of agencies from those of the Commission performed under Articles 290 and 291 TFEU.145

In addressing the third plea, the Court considered whether Articles 290 and 291 TFEU established a single legal framework under which certain delegated and executive powers may be attributed solely to the Commission, or whether other systems for the delegation of such powers to Union bodies, offices or agencies could have been contemplated. For the Court, the fact that the Treaty mentioned 145 Id. at paras. 77–78.

2014] Limits of Agencification in the European Union 1247 agencies in twenty-five provisions146 implied the open regime of Article 290 and 291 TFEU. In the Court’s view, ESMA’s decision-making powers in an area which required the deployment of specific technical and professional expertise did not correspond to any of the situations defined in Articles 290 and 291 TFEU. The Court did not say, however, how the powers of EU agencies differ from those of the Commission exercised under the mentioned articles. “For example, binding legal acts on the registration or refusal of a European Trade Mark adopted by the OHIM are clearly an act of executive nature and comparable with Commission decisions on the approval or refusal of an EU-wide approval of a novel food.”147 In this light, the distinction between these decisions is made on the basis of the identity of the institution exercising relevant power, rather than on the basis of the nature of the power. The question is whether this should be the case. The fourth plea concerned the appropriateness of the legal basis (Article 114 TFEU) for entrusting ESMA with decision-making powers of general application given to it by Article 28 Regulation No 236/2012.148 The Court used the following test: A legislative act adopted on that legal basis must, first, comprise measures for the approximation of the provisions laid down by law, regulation or administrative action in the Member States and, second, have as its object the establishment and functioning of the internal market.149 In the Court’s view, Article 28 of satisfied both requirements. At the same time, the Court ignored completely the argument brought up by AG Jääskinen about the appropriateness of choosing the legal basis from the democratic input perspective, to be discussed in the following section.

146 To be more specific, the Lisbon Treaty mentions EU agencies in a number of general provisions, such as Article 15 TFEU: “In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.” Similar references to agencies can be found in Articles 9 (on democratic equality), 42 and 45 (on European Defense Agency) TEU and Articles 15 (mentioned before), 16 (on data protection), 24 (on right to communication, indirectly referring to any ‘body’), 71 (on internal security), 123, 124, 127 and 130 (on monetary union), 228 (concerning the procedures of Ombudsman), 263, 265, 267 and 277 (on judicial review), 282 (on ECB), 287 (on the discharge by the Court of Auditors), 298 (on ‘open, efficient and independent’ European administration) and 325 (on anti-fraud) TFEU, and Protocols 3 (on the Court of Justice), 4 (on the ECB), 6 (on the location of the seats of institutions and agencies), 10 (concerning the European Defense Agency), and 36 (on transitional provisions). 147 Ellen Vos, European Agencies and the Composite EU Executive in EUROPEAN AGENCIES IN BETWEEN INSTITUTIONS AND MEMBER STATES 44 (Michelle Everson et al. eds., 2014). 148 The debate and the case law on Article 114 TFEU are outside the scope of the article, except for the argument on democratic input, to be discussed in Part IV. For the discussion of the appropriateness of Art. 114 TFEU as legal basis for delegation to ESMA, see also Merijn Chamon, The Empowerment of Agencies under the Meroni Doctrine and Art. 114 TFEU: Comment on United Kingdom v. Parliament and Council (Short-selling) and the Proposed Single Resolution Mechanism, 39 EUR. L. REV. 380, (2014) and Pieter van Cleynenbreugel, Meroni Circumvented? Art. 114 TFEU and EU Regulatory Agencies, 21 MAASTRICHT J. EUR. & COMP. L. 64 (2014).

149 U.K. and N. Ir., CJEU Case C-270/12 at para. 100.


III. What the CJEU Could Have Said

So far this part has discussed the ESMA-short selling judgment, the UK’s arguments, the Court’s holding, and the latter’s controversies. It has shown that the Court has been quite lenient in its interpretation of the existing Treaty provisions—perhaps too lenient—because it seems to lean more towards the legislature’s regulatory preferences, rather than balancing the legislative choices with one of the major core values governing EU integration, for example, democratic input. The Court does not consider Article 28 “in isolation” but regards it within the framework of a chain of regulatory responses of the EU legislator to the 2008 financial crisis and upholds it. While the procedure that Article 28 sets up may be indeed a necessary component of the general financial regulatory reform, the Court could also consider the general Treaty framework, which does not explicitly allow the creation of agencies and does not list them among the possible recipients of implementing powers. Here, a more “balanced” (in the sense of balancing between legislator’s regulatory references and higher values) answer of the Court could have been to follow AG Jääskinen’s opinion concerning the importance of the choice of legal basis for enhancing the legitimacy of agencies and of their decisions, for example, to make Article 352 TFEU the legal basis for creating agencies. This Article requires unanimity in the Council and requires the Commission to bring all related legislative proposals to the attention of national parliaments. The Treaties are not explicit as to when independent regulatory agencies can be created. Yet, agencies impact society by participating in the policy-shaping and implementation processes or adopting legally binding decisions affecting the citizens generally or individually. The authorization of an agency and its powers by all Member States would enhance the agency’s legitimacy, because the Union’s democratic legitimacy derives, to a great extent, from the Member States. For the sake of agencies’ legitimacy, such a decision would give two choices to the Member States: Either modify the Treaty by establishing a clear legal basis for creating agencies pursuant to a specified legislative procedure or be obliged to create and delegate to agencies only upon the agreement by all Member States together with the Parliament.

The Court deduces from Article 263 and 277 TFEU an implied power to empower agencies with powers to issue measures of general application. However, reviewability does not address the question of how much discretion such powers may entail. In this regard, the Court could have at least acknowledged the “hidden ways”150 in which the Treaty addresses the question of agencies’ creation and the scope of powers and discretion allowed to be delegated to them and could have stressed the necessity to address such issues. Such an approach could provide an

150 Herwig C.H. Hofmann & Alessandro Morini, Constitutional Aspects of the Pluralisation of the EU Executive Through “Agencification” 34 (Univ. of Lux. L., Working Paper No. 2012–01, 2012). The hidden ways imply no explicit authorization of creating agencies and delegating to them specific powers, but mention agencies here and there in some general provisions.

2014] Limits of Agencification in the European Union 1249 incentive for the EU political institutions and Member States to address the question of the nature and scope of delegable powers and discretion, encouraging the democratic deliberation and perhaps even decision-making process in relation to establishing of an appropriate creation and operation framework for agencies to take place.

When entrusting the Court with the task to ensure that, in the interpretation and application of the Treaties, the law be observed (Article 19 TEU), the Treaties require the Court to consider legal provisions challenged within the framework of relevant secondary and policy-specific legislation and in light of the higher norms and principles—such as democratic input and control—governing the EU integration. In ESMA-shortselling, the Court seems to have done the former, but not the latter. D. The New Treaties, Case-law Regime, and Agencification

The Court’s assessment in the ESMA-shortselling case is quite short, yet it has great significance. This is because the ESMA-shortselling case seems to lay down a new delegation doctrine in the EU. Furthermore, in light of the new Treaty and case law regime, there are at least two important implications for further agencification which need to be noted. These implications concern the issues of democratic legitimacy and accountability of EU agencies and the Union at large. I. The New Delegation Doctrine in the EU The Meroni-Romano non-delegation doctrine has arguably found its successor. So far, the applicability of the Meroni ruling to EU agencies has been questioned on the basis of the age of the case itself, a different type of agency at stake (private instead of public bodies), and a different treaty regime dating back to 1956.151 In ESMA-shortselling, the Court does indeed note the difference between the type of agencies152 and relies on the Lisbon Treaty, the first EU Treaty to mention agencies although it is not explicit regarding the possibility to create agencies and delegate specific powers to them. The Court concludes that the reviewability of agencies’ decisions (Article 263 and 277 TFEU) implies the possibility to create agencies with powers to issue acts of general application. It lays down the following delegation standard: The delegation of powers to issue legally binding measures, which are (1) precisely delineated, (2) subject to sufficiently (delineating) conditions and criteria limiting discretion, which may include a notification requirement and the temporary character of a measure; and (3) amenable to judicial review in the light of the objectives established by the delegating authority, is allowed.

151 See, e.g., Chamon, supra note 67.

152 U.K. and N. Ir, CJEU Case C-270/12 at para. 43.


The ESMA-shortselling case sets up a new delegation doctrine in the EU because this case is based on the Treaty provisions recognizing agencies’ existence and it overturns at least in part the Meroni-Romano non-delegation standard. Romano’s ban on delegating powers with “the effect of law” because the judicial review was precluded, no longer seems relevant because the Lisbon Treaty establishes the judicial review of agencies’ acts explicitly. Furthermore, even though the Court states that the delegation to ESMA is within the limits of Meroni, the latter’s continuing relevance in the future is unclear with respect to the three pillars of the Meroni doctrine. To begin, the Meroni’s non-delegation criteria included the requirement of delegating powers which the delegating authority enjoyed itself. In Meroni, it was the High Authority (the Commission) who delegated the power to agencies, not the legislator. Clearly, the Union Legislator does not enjoy all the powers which it delegates to EU agencies.153 Therefore, the term “conferral” seems more suitable to describe empowering agencies with public power. The Meroni doctrine can be, strictly speaking, characterized as applicable to the delegation of powers. In fact, the Court does use the term “delegation” when it discusses the Meroni judgement and the term “conferral” when it talks about ESMA’s powers, without further explanation on the implications of the difference. This leaves the reader with uncertainty on whether and if so how conferral and delegation differ and what implications the possible difference may have for the applicability of the Meroni restrictions in relation to EU agencies.

If there is indeed a distinction between delegation and conferral of powers, then this also has an implication for the other pillar of the Meroni doctrine, for example, the question of review. In Meroni, it was found that if the delegating authority would have exercised the delegated powers itself when issuing decisions, it would have been bound by certain principles established by the Treaty, such as the requirement to publish an annual report.154 Hence, the recipient of the delegated powers was not only the recipient of delegated powers but also of obligations that the delegating authority may be subject to. The question of what and how many obligations the agency should be subject to—including the question of who should hold it to account—remains unclear when the conferral of powers occurs. This is because the legislator has given somewhat “new” powers to agencies. These powers are not subject to certain reporting and other obligations under the Treaty, especially if agencies’ powers are nowhere defined in the Treaty and—according to the Court itself—are different from the powers exercised by the Commission under Articles 290 and 291 TFEU.155 The Treaty establishes only the possibility of judicial 153 See supra Part II. 1 (discussing the origins of agencies’ functions).

154 Meroni, CJEU Case 9/56 at 149.

155 It is, in fact, difficult to place the Court’s ruling within the new Treaty-based distinction of legislative implementation and delegation of powers, as well as different democratic controls which different powers entail.

2014] Limits of Agencification in the European Union 1251 review; the Treaty and the Court are, however, silent concerning other reviews, such as those of political accountability.

Finally, the Meroni non-delegation standard was based on the distinction between two types of powers: “Delegable” executive and “non-delegable” discretionary powers. In ESMA-shortselling, the Court allowed the Union Legislator to entrust agencies with powers of general application whose discretion is limited by various conditions. Purposely using the UK’s words on several occasions, the Court seemed to hint that a “very large measure of discretion” cannot be delegated.156 The Court, in essence, says that a measure of discretion is allowed to be given to an agency as long as it is not “very large” and is subject to the criteria mentioned above. Following this line of reasoning, Meroni’s classification of executive and discretionary powers becomes less relevant, if it is still relevant at all.

II. Implications of the New Treaty and Case-Law Regime for Further Agencification in the EU In light of the new Treaty and case-law regime there are at least two important implications for agencification in the EU. These concern the issues of democratic legitimacy and accountability of EU agencies and the Union at large. The (democratic) legitimacy of agencification in the EU has been a debatable issue, especially in the recent decade. The concerns have been the following. First, the EU Treaties have never explicitly authorized the creation of EU agencies. Consequently, no Treaty regulates the nature and scope of possible delegation of powers to them. Nevertheless, EU agencies’ numbers and de jure powers have been growing and the creation of agencies has, at times, lacked good reason.157

Second, even if one were to agree that the creation of agencies was an implied power of the Union Legislator, two concerns remain. On the one hand, the democratic credentials of the EU institutions and the EU in general are questionable, which is not helped by the fact that these institutions prolong the delegation chain further away from the people without the EU’s explicit authorization. On the other hand, the nature and scope of delegable powers are unclear. The Meroni restriction on delegating executive powers involving no discretion was argued not to be respected in practice.158

Third, the importance of the legal basis for creating agencies in light of democratic legitimacy has been debated. Similar to AG Jääskinen’s opinion in the ESMA-shortselling case, there exists the difference of opinion in relation to the necessity of 156 U.K. and N. Ir, CJEU Case C-270/12 at para. 54 (emphasis added). 157 RAMBOLL EVALUATION, supra note 5.

158 See, e.g., Chiti, supra note 7, at 1406.


involving all EU Member States in passing agencies’ founding Regulations to legitimize them. The agencies’ legitimacy is clearly enhanced if all Member States agree to their creation. Alternatively, another argument supported basing the founding act on the provision regulating the policy area at stake,159 rather than limiting the legal basis to the legislative procedure. Finally, Davies suggested that creating agencies by international conventions—as was the case with Europol—was the most democratically legitimate means of creation because conventions would require ratification by the national legislatures.160

To what extent do the Lisbon Treaty and the ESMA-shortselling case address existing legitimacy concerns? It seems that only the question of agencies’ formal legitimacy is addressed, and even it is addressed shallowly. Some now argue that EU agencies are legitimate because the Lisbon Treaty mentions them in twenty-five provisions. In addition, the delegation of powers involving not “a very large measure of discretion” to agencies now seems legitimate based on the ESMA-short selling’s interpretation of Articles 263 and 277 TFEU. At the same time, concern about extending the delegation line to agencies created by the Union institutions with questionable democratic credentials remains. The legitimacy of EU agencies is further impaired by the fact that the Union Legislator can cherry-pick legal bases for creating agencies,161 which includes the possibility of creating agencies without the agreement of all EU Member States. Moreover, the Court in ESMA-shortselling in no way pushes the Union Legislator and the Member States to clarify these issues or promote the democratic legitimacy of EU agencies. In the ESMA-shortselling case, the Court’s lenient approach allows the Member States to avoid “the thorny

159 Giandomenico Majone & Daniel Keleman, Managing Europeanization: The European Agencies, in THE INSTITUTIONS OF THE EUROPEAN UNION 197, 219–40 (John Peterson & Michael Shackleton eds., 2006) (“The legal basis for establishing an agency [is proposed to] be the same as that authorizing the corresponding policy rather than the general Article 308 EC. The logic of the proposal is clear—the agency is simply an instrument of policy implementation”).

160 Bleddyn Davies, Delegation and Accountability of Criminal Agencies after Lisbon: An Examination of Europol, in THE TREATY OF LISBON AND THE FUTURE OF EUROPEAN LAW AND POLICY 325, 331–33 (Martin Trybus & Luca Rubini eds., 2012).

161 Different legal bases imply the necessity of different legislative procedures to be used to pass relevant acts. This in turn implies the involvement of different EU institutions, which can be used and abused for various political purposes. For instance:

[I]n two cases (the EMEA and the Community Plant Variety Office), the Council changed the legal principle on which the Commission had originally based the proposal. Using Article 100A, EC Treaty, as proposed by the Commission for the EMEA, would have required the co-operation procedure and thus more EP influence, and, additionally, qualified majority voting in the Council.

Kreher, supra note 44, at 232.

2014] Limits of Agencification in the European Union 1253 question of whether this actually necessitates Treaty change,”162 which seems necessary, at least because Articles 290 and 291 TFEU “forget” to list agencies among the legitimate authors of non-legislative acts. Additionally, this is necessary because the balance of controlling powers among the EU main institutions is affected by the creation of agencies but not reflected in the Treaty. Another implication of the ESMA-shortselling case which this article notes concerns the issue of accountability of the EU executive. Alexander Hamilton noted over two centuries ago that:

[O]ne of the weightiest objections to a plurality in the Executive . . . is that it tends to conceal faults and destroy responsibility . . . . It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure . . . ought really to fall.163

The EU seems to run this risk because the locus of the executive power is highly dispersed. There is not only division between the EU and national executive institutions, but also at the EU level itself, where next to the Commission and in part the Council, approximately thirty-five independent regulatory agencies are additionally involved in the policy-shaping and implementing process. Furthermore, there are no clear accountability roles of the EU main institutions in relation to agencies, nor is there any Treaty or case law obligation to clarify such roles. In this respect, what seems to have been neglected by the Court when it viewed EU agencies as simply instruments of policy implementation is that the creation of agencies raises institutional questions, such as the already mentioned balance of controlling powers. This balance is not addressed in the Treaty because the Treaty does not explicitly provide for the creation of agencies, yet the balance of controlling powers is still affected by the creation of agencies. As shown above, approximately thirty-five EU agencies operate in their own individualized accountability regimes, where the EU main institutions have very different controlling powers in relation to individual EU agencies, if having such powers at all. The differences exist without necessarily having good reasons for them. Not only does the existing situation shadow accountability gaps,164 but it also hinders the clarity and comprehensibility of the system, if the word “system” is appropriate here at all. The absence of an obligation to justify why some agencies escape accountability obligations to which other similar agencies are subject, and why 162 Alex Barker, European Court Rejects UK challenge Against EU Short-Selling Ban, FINANCIAL TIMES (Jan. 22, 2014), www.ft.com/cms/s/0/68cbcb64-834c-11e3-aa65-00144feab7de.html#axzz2sRtvtjln. 163 THE FEDERALIST NO. 70 (Alexander Hamilton).

164 SCHOLTEN, POLITICAL ACCOUNTABILITY, supra note 11, at 177-178, 186.


some EU agencies have been created in the first place,165 affect agencies’ and the EU’s legitimacy.“[I]t is doubtful that the exercise of public authority may be perceived as legitimate if it is not understood.”166 Given the treaty gap on the issues of agencies’ creation, delegation and accountability, the Court could have been more demanding in this respect and introduce a more restrictive delegation standard in order to promote democratic legitimacy of the agencies and the EU. E. Conclusion This article has discussed the ongoing agencification trend in the EU in light of the old and new treaties and case law, including the just-released ESMA-shortselling judgment. While it suggested that the new ruling arguably establishes a new delegation doctrine, it also noted that the old concerns regarding the democratic legitimacy and accountability of EU agencies and the Union remain. It is true that the Lisbon Treaty mentions EU agencies in twenty-five general provisions, yet it leaves three crucial questions open: (1) Upon what conditions can an EU agency be created and on what legal basis?; (2) what kind of powers and how much discretion can be delegated to agencies?; and (3) who holds agencies accountable and how? The Court’s rather lenient behavior in the ESMA-shortselling case leaves no reason for the Union Legislator and the EU Member States to address these quite fundamental questions. The current approach of delegating more and more public authority (in quantitative and qualitative terms) to agencies without justifying these decisions and without establishing a proper accountability framework to withstand judicial scrutiny will negatively affect the EU’s ability to gain democratic legitimacy because the current approach is haphazard with respect to the necessity of agencification and its limits. Acceptance of governing authority rests, however, on understanding of the authority’s actions. If agencification seemed limited prior to the Lisbon Treaty under the Meroni-Romano restrictions, its limits have been diminished now.167 This is due to both the “hidden ways” in which the Lisbon Treaty regulates agencies and the vagueness of the Court in interpreting the existing Treaties’ gaps, such as the scope of powers and discretion that can be given to EU agencies. Given the absence of clear limits, further agencification is likely to persist at the risk of increasing the democratic 165 Id. at 70. 166 Peter Dyrberg, Accountability and Legitimacy: What is the Contribution of Transparency?, in ACCOUNTABILITY AND LEGITIMACY IN THE EUROPEAN UNION 81, 83 (Anthony Arnull & Daniel Wincott eds., 2002).

167 For the argument of the evolution of the “delegation debate” from the issue of “what kind of powers can be delegated to EU agencies” to the question of “what kind of discretion can be conferred on EU agencies,” see Miroslava Scholten & Marloes van Rijsbergen, The ESMA-Short Selling Case: Erecting a New Delegation Doctrine in the EU Upon the Meroni-Romano Remnants, 41 LEGAL ISSUES ECON. INTEGRATION 389, 389–406 (2014).

2014] Limits of Agencification in the European Union 1255 legitimacy deficit and accountability gaps, because these issues are not regulated explicitly by the Treaty or any other legally binding act.168 Is this arguably unlimited agencification in the EU a good or bad thing? It depends. From the regulatory legitimacy perspective, powerful regulators are thought to be necessary to attain policy goals effectively because they can respond to relevant changes and threats in a prompt and intelligible manner. Here, it is argued that agencies can gain the so-called regulatory legitimacy by their good deeds and achievements. Note, however, that after forty years of impact assessment in the United States and the subsequent development of the European regulatory state in existence for more than two decades, there is still no clear-cut evidence concerning the results of regulatory reforms and regulatory agencies’ performance. The few studies examining agencies’ performance, while helpful for building detailed country-specific knowledge, have led to mixed and inconclusive results.169 In other words, the underlying hypothesis of the theory of regulatory legitimacy must still be proven. From the democratic legitimacy perspective, the unlimited agencification is clearly problematic because the Union Legislator does not, and thanks to the Court of Justice of the EU, it need not, give proper account as to the reasons for agencification and its limits. Without relevant treaty changes, “the ultimate principals, the citizens”170 are not given the opportunity to give permission to delegate vast public authority to bodies not explicitly envisaged in the ‘contracts’ that they have with those who are in power. The proliferation of agencies results in a democratic legitimacy deficit, which has a special detrimental effect in the EU. This is because the democratic legitimacy and accountability of the EU agencies’ creators (the Council and the European Parliament) are the troublesome issues on their own due to the low turnouts on the elections to the European Parliament representing the EU citizen that does not arguably exist and the absence of any collective accountability of the Council. To be on the safe side in such circumstances, it is essential to restrict the EU Legislator’s ability to place decisive powers with questionable accountability even further from the people.

168 The recently issued “Common Approach” on EU agencies is a non-legally binding document which implies that future political negotiations remain the determinant factor when creating agencies, delegating powers to them, and organizing their accountability. The future negotiations will test the political will required to implement the intentions laid down in the “Common Approach” consistently. On the critical analysis of the Common Approach on EU agencies, see Miroslava Scholten, The Newly Released “Common Approach” on EU Agencies: Going Forward or Standing Still?, 19 COLUM. J. EUR. L. 1 (2012).

169 Martino Maggetti, Legitimacy and Accountability of Independent Regulatory Agencies: A Critical Review, 2 LIVING REVIEWS IN DEMOCRACY (2010).

170 Katrin Auel, Democratic Accountability and National Parliaments: Redefining the Impact of Parliamentary Scrutiny in EU Affairs, 13 EURO. L. J. 487, 504 (2007).

Articles

Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe By Michal Bobek* & David Kosař** A. Introduction Judicial independence appears on most laundry lists of all bodies or institutions engaged with the rule of law. It is considered an unqualified public good. As a result, all major players engaged in legal reform and building a rule of law have diverted significant resources to this issue. For instance, the United Nations created the office of Special Rapporteur on the Independence of Judges and Lawyers in 1994. The World Bank has been investing heavily in judicial reforms in Latin America and Asia. In Europe, the Council of Europe has been pushing for judicial independence and judicial reform throughout the continent. Additionally, the European Union included judicial independence among its core requirements for the accession countries. Both organizations, the European Union and the Council of Europe, then jointly encouraged legal and judicial reforms in Central and Eastern Europe (CEE). A number of non-governmental organizations have likewise paid considerable attention to this issue. The question of how to achieve judicial independence, particularly in CEE countries and other countries in transition, tends to be frequently reduced to just one aspect: The institutional reform. Furthermore, the institutional reform itself is typically limited to promoting one particular model of court administration: The Judicial Council model. The model has been suggested to be the universal and “right” solution that will eradicate the vices of previous models, particularly the administration of courts by a Ministry of Justice. The new Judicial Council model ought to enhance judicial independence, insulate the judiciary from political tumult, and improve the overall performance of judges.

* Michal Bobek is Professor of European law, College of Europe, Bruges, and research fellow, University of Oxford Institute of European and Comparative Law. Email: [email protected].

** David Kosař is Assistant Professor at the Law Faculty of Masaryk University, Brno. Email: [email protected]. The research carried out by the second author and leading to this article has received funding from the European Union’s Seventh Framework Programme (FP7/2007-2013) under grant agreement No. 303933. We are thankful to Daniela Piana, Roger Errera, participants of the 2nd ASIL Research Forum at the University of Georgia Law School, and participants of the 2nd Annual New Perspectives on Comparative Law Conference of the American Society of Comparative Law at the Robert H. McKinney School of Law for helpful comments on earlier versions of the paper.


The new model thus came with the promise of independent, better functioning judiciaries. The main argument of this paper is that for CEE countries in transition, the universally promoted “Euro-model” of the court administration in the form of a Judicial Council has not lived up to that promise. It has not delivered the goods it was supposed to deliver. In fact, in a number of countries in the region, the situation has been made worse following the establishment of a Judicial Council. In those countries, the new institution typically halted further reforms of the judiciary and soon negated the values in the name of which it has been put in place. This evolution seriously questions not only the further promotion of the Judicial Council model elsewhere in the world, but also the very international process of standards setting that put in place and promoted such a model. The argument of this paper proceeds as follows: Sections B and C critically examine how the international and European “soft standard,” which was later pushed onto the CEE transition countries, emerged. Who designed these standards and how? Section D offers a suggestion as to why, in the end, the Judicial Council model prevailed over all competing alternatives of court administration in Europe and also as to why international actors have promoted this model. Section E analyzes normative shortcomings of such “European” or “global” models in terms of democracy and legitimacy. Section F shows with which incentives and by which actors the Judicial Council model has been imposed onto most of the CEE countries in the course of their transitions. Sections G and H stand in contrast to each other: Section G outlines the outcomes that the Judicial Council model was supposed to deliver, while Section H looks at the outcomes that it in fact delivered and the reality of how it has been operating in the CEE states. Conclusions in Section I are humble. It is suggested that when transforming judiciaries, it is essential to focus first on personal renewal and small-scale function-related court reforms rather than on grand schemes of irreversible and constitutionally entrenched institutional designs. Making a post-totalitarian judiciary a self-administrative body before any genuine internal change and renewal has taken place may result—formally and constitutionally—in establishing institutionally independent judiciary without many individually independent judges in it.

1

B. How Do European Standards of Court Administration Emerge? Where do European and global

2 standards regarding the “proper” way of administering

courts come from? Two questions are essential in this respect: Who drafts these standards

1 Contra John Ferejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, 72 S. CAL. L. REV. 353, 362 (1999) (referring to the U.S. judiciary as “[the] system of independent judges within a dependent judiciary”).

2 Throughout this paper, we look primarily at the European judicial standards. However, a number of suggestions and arguments made with respect to the European standards are also applicable with respect to worldwide or “global” standards, as far as such can genuinely exist, thus, warranting to use the adverb “global.” See, e.g., VIOLAINE AUTHEMAN & SANDRA ELENA, GLOBAL BEST PRACTICES: JUDICIAL COUNCILS: LESSONS LEARNED FROM EUROPE AND LATIN

AMERICA (2004); Linn Hammergren, Do Judicial Councils Further Judicial Reform? Lessons from Latin America (Carnegie Endowment for Int‘l Peace, Working Paper No. 28, 2002); Brent T. White, Rotten to the Core: Project

2014] Global Solutions, Local Damages: Judicial Councils in CEE 1259

and according to what processes? The answer to the former question is straightforward: It is typically judges themselves. The answer to the latter question is more complicated. The processes of creating European or “global” standards of court administration vary from one international organization to another. Furthermore, the processes tend to be quite opaque, with only limited access to information regarding their rules and design. At the United Nations level, it was the General Assembly that, in 1985, adopted the Basic Principles on the Independence of the Judiciary (“UN Basic Principles”).

3 Although the UN

Basic Principles addressed several aspects of court administration in the broader sense,4

they merely set the goals. The States were left to choose the means of how to meet those goals.

5 The 2002 Bangalore Principles of Judicial Conduct (“Bangalore Principles”)

6 took a

similar approach. These principles explicitly called for enhancing “institutional independence of the judiciary.”

7 However, they stopped short of advocating for a

particular model of court administration. They instead zeroed in on six general values that ought to be pursued: Independence, impartiality, integrity, propriety, equality, competence, and diligence.

8

The process that led to the drafting of the 2002 Bangalore Principles of Judicial Conduct clearly illuminates the shift towards a greater role of judges in defining standards of court administration. The Bangalore Principles’ origin dates back to the meeting of the Judicial Group on Strengthening Judicial Integrity in Bangalore, India in February 2001 (therefore, the Bangalore Principles). The meeting united eight chief justices from Asia and Africa. At the meeting, they drafted a code of judicial conduct that was supposed to complement the

Capture and the Failure of Judicial Reform in Mongolia, 4 E. ASIA L. REFORM 209 (2009). Seen from a different angle, it might be also suggested that European judicial standards are the most developed subset of a worldwide standardization trend.

3 Adopted at the Seventh UN Congress on the Prevention of Crime and the Treatment of Offenders held in Milan in 1985 and endorsed by G.A. Res. 40/32, U.N. Doc. A/RES/40/35 (Nov. 29, 1985) and G.A. Res. 40/146, U.N. Doc. A/RES/40/32 (Dec. 13, 1985).

4 Note that the term “court administration” has a broader meaning in Europe than in the United States. In Europe, it also includes selection, promotion, and discipline of judges.

5 See, e.g., U.N. Basic Principle No. 10 (“Any method of judicial selection shall safeguard against judicial appointments for improper motives.”); U.N. Basic Principle No. 13 (“Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.”); U.N. Basic Principle No. 17 (“A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure.”).

6 See Bangalore Principles of Judicial Conduct of 2002, Nov. 25–26, 2002, U.N. Doc. E/CN.4/2003/65 Annex (Jan. 10, 2003).

7 Id. at para. 1.5.

8 See id. at paras. 1.1–6.7.


UN Basic Principles “[i]n light of increasing reports of judicial corruption, and sensing a lack of guidance on measures of judicial accountability.”

9 The UN Special Rapporteur Param

Cumaraswamy subsequently adopted a partly revised version of this code.10

Thus, the UN ex post provided this private initiative with a “veil of legitimacy” in the form of institutional approval. However, the input from law professionals other than judges—for example, from government officials, scholars, and other stakeholders—in the drafting process was minimal. What is even more striking is that despite the clear motivation behind this code, there is not a single mention of the words “corruption” or “accountability” in the Bangalore Principles. Instead, the Bangalore Principles start with a bold paragraph, which, if taken in its fullness, would represent an antithesis to judicial accountability:

A judge shall exercise the judicial function independently on the basis of the judge's assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.

11

In contrast to the UN level, the process of standardization of court administration in Europe went much further and deeper. This process can be roughly divided into two periods. The first period spans from the 1950s until the early 1990s. The second period lasts from the early 1990s until today. Until the early 1990s, neither the European Union (EU) nor the Council of Europe (CoE) paid significant attention to the models of court administration. The turning point was the adoption of the EU Copenhagen criteria in 1993 and the ensuing EU accession process and its conditionality vis-à-vis the candidate countries.

12 Since then, the EU and the CoE considerably increased their resources devoted

to setting the standards of court administration. The synergic effect of the activities of these two international organizations in turn placed strong pressure on the CEE States

13 to

9 Lorne Neudorf, Promoting Independent Justice in a Changing World, 12 HUM. RTS. L. REV. 107, 112 (2012).

10 See Bangalore Principles, supra note 6.

11 Id. at para. 1.1.

12 See Cristina Parau, The Drive for Judicial Supremacy, in JUDICIAL INDEPENDENCE IN TRANSITION 619, 643 (Anja Seibert-Fohr ed., 2012).

13 But note that the pushing for one JC Euro-model is by now no longer limited to the CEE. For instance, the Parliamentary Assembly of the CoE has recently criticized Germany for not having a judicial council. See Eur. Parl. Ass., Allegations of Politically Motivated Abuses of the Criminal Justice System in Council of Europe Member States, para. 5.4.1, 32nd Sess., Res. 1685 (Sept. 30, 2009). For further details, see also Anja Seibert-Fohr, European Perspective on the Rule of Law and Independent Courts, 20 J. FÜR RECHTSPOLITIK 161, 166 (2012) (arguing that the


bring their models of court administration in sync with the promoted European Judicial Council model (JC model). On the one hand, the CoE gave a preference to the JC model of court administration as early as 1994.

14 On the other hand, at that period, a diversity of models across Europe was

still acknowledged. The CoE refrained from proposing to change the alternative systems of court administration that “in practice work[ed] well.”

15 However, over the years, both the

EU and the CoE have abandoned their initial flexibility and become staunch advocates of the JC model. During the 2004 enlargement wave that primarily involved former communist Central European and Baltic States,

16 the European Commission used the so-

called “pre-accession conditionality”17

to exert significant pressure on Estonia, Latvia, and Slovakia and to entice them to adopt the JC model. In Slovakia, the European Commission succeeded and the Judicial Council of the Slovak Republic came into being in 2002. Estonia adopted a somewhat modified Judicial Council “Euro-model” in the same year. Latvia resisted the pressure and did not create its judicial council until 2010.

18 The European

Commission went even further in the 2007 enlargement wave by basically requiring Romania and Bulgaria to adopt the JC model “as it is.”

19

The eventual creation of the Judicial Council “Euro-model” presents a puzzle. Neither the EU nor the CoE have ever laid down any normative underpinnings of this model. There has never been any process of review or discussion of the model similar to those that occur in adopting EU legislation or in drafting an international treaty. Both organizations simply internalized the recommendations of various judicial consultative bodies without really addressing or assessing their content.

problem of recent documents produced by the CoE is that they have gradually shifted the emphasis from obligations of results to obligations of means).

14 Recommendation No. R (94) 12 to Member States on the Independence, Efficiency and Role of Judges, 1994 Y.B. EUR. CONV. ON H.R. 453, Principle I(2)(c).

15 Id. at para. 16 (Explanatory Memorandum).

16 Namely, Poland, the Czech Republic, Slovakia, Hungary, Slovenia, Estonia, Latvia, and Lithuania. The other two countries that joined the EU in the 2004 enlargement were Malta and Cyprus.

17 See infra Section F.

18 Generally on the double or even multiple standards in the accession process, see, for example, DIMITRY

KOCHENOV, EU ENLARGEMENT AND THE FAILURE OF CONDITIONALITY 264–66, 271–90 (2008).

19 See, e.g., Daniel Smilov, EU Enlargement and the Constitutional Principle of Judicial Independence, in SPREADING

DEMOCRACY AND THE RULE OF LAW: THE IMPACT OF EU ENLARGEMENT ON THE RULE OF LAW, DEMOCRACY, AND

CONSTITUTIONALISM IN POST-COMMUNIST LEGAL ORDERS 313, 323–25 (Adam Czarnota, Martin Krygier & Wojciech Sadurski eds., 2006); Parau, supra note 12.


The intricate web of different consultative bodies that have played major roles in setting this standard is in itself difficult to disentangle.

20 Nonetheless, there is one thing that all of

these consultative bodies have in common: Judges have a significant and often even a decisive voice therein. For instance, the Consultative Council of European Judges (CCJE), an advisory body of the CoE on issues related to the independence, impartiality, and competence of judges, is composed exclusively of judges. Similarly, the Lisbon Network, the consultative body of the CoE in the field of judicial education, consists exclusively of judges—namely, judges who are directors or deputy directors of national judicial schools. The European Network for Councils for the Judiciary, an independent body that is politically and financially supported by the European Commission—which is particularly active in setting the standards of court administration—is open to representatives of other professions, but judges have a majority there too. Even in the Venice Commission, the CoE's advisory body on constitutional matters writ large, whose composition is most diverse, judges have an upper hand. In other words, judges control virtually all European bodies that deal with issues of court administration. Given the fact that judges themselves create the European standards of court administration, it is not surprising that these standards are based on the belief that the rule of law is best served by judicial autonomy.

21 This belief materializes in the vision of

a very robust institutional separation of the judiciary from the rest of legal and political institutions within the national state. C. What Was in the Package? The Core Requirements of the Euro-Model Officially, there is no formal document that defines any required “Euro-model” or even “global” model of court administration. Therefore, we must excavate the parameters of this model from various documents originating from diverse bodies of the United Nations, the European Union, and the Council of Europe, with further impetus coming from the World Bank and other international organizations. One may object that there is no single model of judicial council jointly advocated by these international and supranational bodies and that these organizations do not necessarily agree on the requirements of such a model. This may be true with respect to a “global” model. However, on the European level, a number of EU documents

22 and the institutional dialogue between the relevant bodies of

the EU and the CoE23

rebut this objection and reveal that there is mutual agreement on this issue.

20 See DANIELA PIANA, JUDICIAL ACCOUNTABILITIES IN NEW EUROPE: FROM RULE OF LAW TO QUALITY OF JUSTICE 49–88 (2010) (providing a comprehensive overview of these bodies).

21 See Parau, supra note 12, at 646–47.

22 See, e.g., Anja Seibert-Fohr, Judicial Independence in European Union Accessions: The Emergence of a European Basic Principle, 52 GERMAN Y.B. INT’L L. 405 (2009).

23 See PIANA, supra note 20.


There are five key requirements of the JC Euro-model that may be distilled from the plethora of documents produced by numerous organs and affiliated bodies of the EU and the CoE, namely: (1) A judicial council should have constitutional status;

24 (2) at least 50%

of the members of the judicial council must be judges and these judicial members must be selected by their peers, for example, by other judges;

25 (3) a judicial council ought to be

vested with decision making and not merely advisory powers;26

(4) a judicial council should have substantial competences in all matters concerning the career of a judge including selection, appointment, promotion, transfer, dismissal, and disciplining;

27 and (5) a judicial

council must be chaired either by the President or Chief Justice of the Highest Court or the neutral head of state.

28

This set of five criteria is by no means the definitive or exhaustive list of requirements and recommendations proposed by the EU and the CoE. Many documents produced by these two organizations demand more stringent criteria and additional requirements.

29 The

above-mentioned set is, rather, the highest common denominator of what is expected and what the EU and the CoE advocate for. It is clear from the “should” language of the documents that these criteria may not always be framed as “must” requirements. However, the language should not obfuscate the obligatory nature of these requirements for the so-called “new democracies” in Central and Eastern Europe. In fact, most of the EU and the CoE documents use the “should”

24 See EUR. NETWORK OF COUNCILS FOR THE JUDICIARY (ENCJ), Councils for the Judiciary Report 2010–2011 para. 1.4; CONSULTATIVE COUNCIL OF EUROPEAN JUDGES (CCJE), Opinion no. 10 (2007) para. 11 (Nov. 23, 2007). See also European Charter on the Statute for Judges para. 1.2 (July 8–10, 1998).

25 See ENCJ, supra note 24, at para. 2.1; CCJE supra note 24, at para. 18. See also European Charter on the Statute for Judges, supra note 24, at para. 1.3; General Assembly of the European Network Councils for the Judiciary, Self Governance for the Judiciary: Balancing Independence and Accountability, para. 4(b) (May 2008), http://www.encj.eu/images/stories/pdf/resolutionbudapestfinal.pdf [hereinafter Budapest Resolution]; Recommendation CM/Rec (2010) 12 of the Committee of Ministers to Member States on Judges: Independence, Efficiency, and Responsibilities, para. 27 (Nov. 17, 2010), https://wcd.coe.int/ViewDoc.jsp?id=1707137.

26 See ENCJ, supra note 24, at paras. 3.4, 3.13; CCJE, supra note 24, at paras. 48, 49, 60. See also European Charter on the Statute for Judges, supra note 24, at paras. 3.1, 4.1, 7.2; Recommendation CM/Rec (2010) 12, supra note 25, at para. 46.

27 See ENCJ, supra note 24, at para. 3.1; CCJE, supra note 24, at para. 42. See also European Charter on the Statute for Judges, supra note 24, at para. 1.3.

28 See ENCJ, supra note 24, at para. 4.1; CCJE, supra note 24, at para. 33.

29 For instance, some documents preclude the participation of the Minister of Justice in the judicial council or require judicial councils to have budgetary powers, oversee judicial training, process complaints from the users of courts, comment on bills affecting the judiciary, or propose new legislation. See, e.g., ENCJ, supra note 24, at paras. 3.5–3.9, 3.14–3.18; CCJE, supra note 24, at paras. 65–90.


language for two reasons: First, the “should” language carves out exceptions for the so-called “old democracies” in Europe, which are not willing to modify their current models of court administration. Second, the “should” language is employed in order to make these documents as inclusive as possible and also to speak to the bodies in some European states that represent different styles of court administration, such as the Court Service model

30 or

hybrid models of court administration.31

As is apparent from the five requirements listed, the “self-government” of judges represents a golden thread running through all five criteria.

32 Some documents make this

claim more explicit by stressing that the judicial council must “secure the independence of the judiciary ‘from every other power;’” that is, from the executive and the legislature—not from the judiciary—and “ensure effective self-governance.”

33

Interestingly, the JC Euro-model completely overlooks the threats from within the judiciary and does not stipulate any checks against the capture of this model by a narrow group of judicial leadership. More specifically, court presidents and vice presidents are not precluded from becoming members of the judicial council and no maximum ratio of these judicial officials among judicial members of the judicial council is generally set.

34 Similarly,

any rule ensuring the representation of all echelons of the judiciary in the judicial council is missing. This omission means that there are no check and balances between the judicial leadership and regular judges. Internal independence of an individual judge vis-à-vis the judicial leadership who may decide through the JC Euro-model on their careers is thus left unprotected.

30 The Court Service model is sometimes referred to as a “Northern European Model” of judicial council. See, e.g., WIM VOERMANS & PIM ALBERS, EUR. COUNCIL FOR THE EFFICIENCY OF JUSTICE, COUNCILS FOR THE JUDICIARY IN EU COUNTRIES

(2003). We reject this label as unhelpful and misleading. See also Nuno Garoupa & Tom Ginsburg, Guarding the Guardians: Judicial Councils and Judicial Independence, 57 AM. J. COMP. L. 103, 109, n. 20 (2009).

31 These different models are described immediately below in Section D.

32 It could be suggested that the term “self-government model” should be used instead of the “judicial council model.” In our opinion, however, the term “judicial council model” better captures the nature of the institutional design in question of which the judicial self-government is an important, but not the sole, component. Furthermore, the “judicial council model” is also the term under which the model has been promoted and marketed in the CEE.

33 ENCJ, supra note 24, at para. 1.4.

34 See CCJE, supra note 24, at para. 26. Contra ENCJ, supra note 24, at para. 2; European Charter on the Statute for Judges, supra note 24, at para. 1.3; Budapest Resolution, supra note 25, at para. 4(b); Recommendation CM/Rec (2010) 12, supra note 25, at para. 27. Similarly, the JC Euro-model does not set any limit on the number of senior judges of appellate and top courts.


D. What Was Not Included? Competing Models of Court Administration In order to see the specific features of the promoted JC Euro-model of court administration more clearly, it is helpful to juxtapose this model with its alternatives. This short detour should also save this paper from a common vice in the scholarship on judicial systems: Namely, that scholars tend to compare only countries with judicial councils and debates therein while ignoring countries without judicial councils and debates therein.

35 We will

start with the models of court administration that exist in Europe and then locate the JC model among these alternatives. Subsequently, we will also briefly look beyond Europe.

There are broadly speaking five models of court administration in use in Europe:

36 (1) The

Ministry of Justice model, (2) the judicial council model, (3) the courts service model, (4) hybrid models, and (5) the socialist model. The Ministry of Justice model is the longest-standing model. Under this framework, the Ministry of Justice plays a key role in both the appointment and promotion of judges and in the administration of courts and court management. This model is in place in Germany, Austria, the Czech Republic, and Finland, among others. Still, it is misleading to claim that judges themselves play no role in the appointment and promotion of judges or in the administration of courts and court management in this model and that the national Ministry of Justice controls all these processes unilaterally. In the ministerial model, it is also other bodies, such as the legislature, the President of a given country, judicial boards, and the ombudsman or professional organizations, which often play a significant role or at least have their influence as well. Moreover, a crucial role in these systems is in fact played by presidents of appellate and supreme courts, who are consulted regarding judicial promotion, appointments and other key issues. Some of the appointments or promotions cannot even be carried out without their consent. Thus, albeit called the “Ministry of Justice model,” it does not mean that the executive runs it all exclusively. The strong criticism one may encounter with respect to this model in a number of international documents and academic writings, and which the proponents of the judicial council model often criticize with fervor, is a parody of the Minister of Justice model that no longer exists in Europe.

37

35 A rare exception is the synthesis report on states without judicial councils, see LORD JUSTICE THOMAS, COUNCIL OF

EUROPE, COUNCILS FOR THE JUDICIARY PRELIMINARY REPORT: STATES WITHOUT A HIGH COUNCIL 4 (Mar. 19, 2007).

36 Different classifications are equally plausible. Our classification relies on Nicola Picardi, La Ministère de la Justice et les autres modèles d´administration de la justice en Europe, in L'INDIPENDENZA DELLA GIUSTIZIA, OGGI. JUDICIAL

INDEPENDENCE, TODAY: LIBER AMICORUM IN ONORE DI GIOVANNI E. LONGO (Philippe Abravanel et al. eds., 1999).

37 What many critics attacked in the CEE was in fact the “state administration of courts,” which was based on the socialist model—discussed immediately below in this section—rather than the current Ministry of Justice model.


The judicial council model is a model where an independent intermediary organization is positioned between the judiciary and the politically responsible administrators in the executive or the parliament. The judicial council is given significant powers primarily in appointing and promoting judges and/or in exercising disciplinary powers vis-à-vis judges. While judicial councils may also play a role in the areas of administration, court management and budgeting of the courts, these powers are only secondary to their competences relating to judges and personnel generally. Belgium, Bulgaria, France, Hungary (until 2011), Italy, Lithuania, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, and Spain can be said to belong to this group. As will be shown below, however, not all of these judicial councils meet the criteria of the JC “Euro-model.”

38

In contrast, in the court service model, the primary function of an independent intermediary organization is in the area of administration (supervision of judicial registry offices, case loads and case stocks, flow rates, the promotion of legal uniformity, quality care etc.), court management (housing, automation, recruitment, training, etc.), and budgeting the courts. In contrast to judicial councils, the court services have a limited role in the appointment and promotion of judges and do not exercise disciplinary powers vis-à-vis judges. These powers are sometimes vested in independent organs—such as judicial appointment commissions—that operate separately from the court service. Denmark, Ireland, Norway and Sweden are examples of countries that have adopted the court service model. By hybrid models, we mean any model that combines various components of the previous three models in such a way that it is significantly distinct from each of them. Hybrid models operate in England and Wales, Estonia, Hungary (since 2011), Iceland, Switzerland, and in European micro-states. These models are so specific that one cannot generalize about them in order to create one clear box. They include judicial appointment commissions that deal only with the selection of judges up to a certain tier of the judicial system, whereas the rest of the court administration is vested in another organ (England and Wales), countries where the judicial council coexists with another strong nationwide body responsible for court administration (Hungary since 2011), countries where the Minister of Justice shares power with judges of the Supreme Court (Cyprus), federal countries where the court administration varies from one state to another (Switzerland), and micro-states that have peculiar systems of court administration tailored to their specific needs (Lichtenstein and Luxembourg). Finally, the socialist model of court administration concentrated the power over judges and the judicial system generally in three institutions—the General Prosecutor (procurator), the Supreme Court and court presidents—which are themselves then

38 Moreover, the classification of several judicial councils is open to debate. For instance, one may reasonably claim that the Dutch judicial council is in fact closer to the Court Service model.


controlled by the Communist Party. Therefore, it is the Party controlling the courts through these institutions. Specific features of this model varied from one Communist country to another and changed with time. The following mechanisms were nonetheless quite common: The relocation and demotion of judges without a decision of the disciplinary court, arbitrary assignment of cases by court presidents, the reassignment at will of judges within their courts or deciding on salary bonuses of judges, and the Supreme Court could remove any case from the lower courts and decide it itself.

39 Apart from these mechanisms

available within the judiciary, judges were subject to frequent retention reviews, the Communist Party had a residual power to dismiss judges who did not exercise judicial office in line with the Party policies and the General Prosecutor had the right to ask for the review of any judicial decision, including those that had already become final. The pure socialist model of court administration no longer exists in Europe.

40 Still, it is important to

mention this model41

in the European context, as some of the post-communist countries in CEE have still not gotten rid of all features of the socialist model. Even more importantly, in a number of these countries, the legacy of the omnipotent Supreme Court and court presidents is lasting until today. A quick glance at the models of court administration in Europe suggests that great number of current EU Member States have opted for the judicial council model. This does not, however, mean that all of them would have indeed taken on board and introduced the promoted JC Euro-model outlined above and advocated by the EU and the CoE. The composition—competences as well as the power of judicial councils—vary considerably even among European countries that established some sort of judicial council and could thus be said to represent the judicial council model.

42 Many of these judicial councils do

not even meet the criteria of the Euro-model we identified above. For instance, French,

39 For descriptions of the office of the Procurator and its functions in English, see GORDON B. SMITH, THE SOVIET

PROCURACY AND THE SUPERVISION OF ADMINISTRATION (1978); G.G. MORGAN, SOVIET ADMINISTRATIVE LEGALITY: THE ROLE OF

ATTORNEY GENERAL’S OFFICE (1962). For a comparative East/West assessment, see MAURO CAPPELLETTI & J.A. JOLOWICZ, PUBLIC INTEREST PARTIES AND THE ACTIVE ROLE OF THE JUDGE IN CIVIL LITIGATION (1974).

40 Only the Belarusian model of court administration gets close. On the state of the Belarusian judiciary, see Alezander Vashkevich, Judicial Independence in the Republic of Belarus, in JUDICIAL INDEPENDENCE IN TRANSITION 1065, 1068–71, 1101–03, 1109–10, 1115–18 (Anja Seibert-Fohr ed., 2012). However, the socialist model is still alive outside Europe, in China for instance. See Peter H. Solomon, Authoritarian Legality and Informal Practices: Judges, Lawyers and the State in Russia and China, 43 COMMUNIST & POST-COMMUNIST STUD. 351 (2010); Xin He, Black Hole of Responsibility: The Adjudication Committee's Role in a Chinese Court, 46 L. & SOC’Y REV. 681 (2012); Ling Li, The “Production” of Corruption in China’s Courts: Judicial Politics and Decision Making in a One-Party State, 37 L. &

SOC. INQUIRY 848 (2012).

41 Alternatively, we may perceive the socialist model of the administration of courts as a perverse version of the classic Ministry of Justice model. Still, the merging of these two models into one would ignore important differences between them.

42 For a helpful taxonomy of judicial councils, see Garoupa & Ginsburg, supra note 30, at 122; LES CONSEILS

SUPERIEURS DE LA MAGISTRATURE EN EUROPE (Thierry S. Renoux ed., 1999).


Dutch and Portuguese judges are in the minority on the judicial councils in their countries. In Spain, judicial members of the judicial council are not selected by their peers. In Belgium, Poland, and Slovenia, judicial councils do not play any role in disciplining judges. Finally, the Hungarian Judicial Council met the requirements of the EU/CoE Judicial Council Model only until Orbán’s government passed the 2011 judicial reform that took many powers from the Hungarian High Council for the Judiciary (Magyar Köztársaság Bíróságai) and transferred them to the newly established National Judicial Office.

43

Therefore, the JC Euro-model is in fact only a subset of judicial councils that exist in Europe. The key feature that distinguishes the promoted Euro-model from its competing alternatives, including other types of judicial councils, is that it centralizes competences affecting virtually all matters of the career of judges at one place and grants control over this body to the judges. The Euro-model is built on the premise that judges are reliable, solid actors who know their duties and are able to administer it. It is therefore considered wise to insulate the judiciary from the political process. If we compare the Euro-model with the existing judicial councils in the EU Member States, it is evident that the Euro-model had been heavily inspired by the Italian judicial council rather than that of France, Spain, or Portugal. In the latter countries, the national Ministries of Justice have preserved some influence over judicial recruitment.

44 Given the

prominent position of Italians in the relevant Pan-European bodies, the preference for absolute judicial autonomy is not surprising. Finally, if we take a global perspective and look for a world-wide alternative to the JC model, there is an even greater variety of models of court administration. The JC model is widespread in Latin America, due in part to the pressure from international actors,

45 but

also due to the influence of Latin Europe exercised in these countries. The executive models can be found in Canada or Japan. Hard-core socialist models of court administration still exist in China, Cuba, North Korea, Vietnam, and in many former Soviet republics. In addition to the five models of court administration we can find in Europe, peculiar models exist in many countries in the Middle East, where religious institutions play a crucial role in judicial governance. In Africa, models of court administration are even

43 Thus, the Hungarian model of court administration after the 2011 judicial reforms belongs to the category of “hybrid models.”

44 See Parau, supra note 12, at 643–44; LES CONSEILS SUPERIEURS DE LA MAGISTRATURE EN EUROPE (Thierry S. Renoux ed., 1999); Jean-Francois Weber, Conseil supérieur de la magistrature (CSM), in LA JUSTICE EN FRANCE 219, 221–22 (Thierry S. Renoux ed., 2013).

45 See LINN HAMMERGREN, ENVISIONING REFORM: CONCEPTUAL AND PRACTICAL OBSTACLES TO IMPROVING JUDICIAL PERFORMANCE

IN LATIN AMERICA (2007); Javier Couso, Judicial Independence in Latin America: The Lessons of History in the Search for an Always Elusive Ideal, in INSTITUTIONS & PUBLIC LAW: COMPARATIVE APPROACHES (Tom Ginsburg & Robert A. Kagan eds., 2005).


more diverse, as they often combine colonial legacies with local specifics. From the European perspective, even the United States’ model of court administration that puts a great emphasis on the democratic process—in particular by electing judges

46—represents

a distinct model that does not have an equivalent in Europe. Despite this diversity, the “global” JC model also argues for complete judicial control over court administration.

47 The

only difference is that the “global” JC model is less developed and perhaps less outspoken than its European counterpart. E. One Size Fits All? A Critique of Global or Euro-Models Based on the previous three subsections, we can start pinpointing some of the deficits of the Euro-model—or even the “global” model—of court administration. Five points of critique will be raised in this section, largely from a normative point of view. Some of these points of critique will be elaborated further on in the ensuing sections of this paper from an empirical point of view. First and foremost, the major objection to the Euro-model of court administration is that it suffers from the lack of democratic legitimacy. It disempowers elected branches of the government and transfers virtually all personal competences over judicial career to the judiciary. To paraphrase Roberto Unger, one of the little secrets of the Euro-model is its discomfort with democracy.

48

Moreover, the lack of output—content—legitimacy of the JC Euro-model can certainly not be substituted by its input—process—derived legitimacy.

49 As has already been

suggested,50

the process of setting the standards of a Euro-model of court administration is opaque. It sidesteps democratic process and relies exclusively on a narrow group of judges and high-ranking officials of international and supranational bodies. The drafting process of

46 Note that most U.S. judges on the state level are elected and often face regular retention review. In addition, non-Art III federal judges—such as magistrate judges, bankruptcy judges or administrative judges—are usually appointed for the specified terms of office and face additional forms of accountability. Only the “Article III judges” (judges of district courts and circuit courts and Justices of the Supreme Court of the United States), the tiny minority of the U.S. judiciary, are appointed for life (by the U.S. Senate upon nomination of the President) and enjoy the full set of safeguards. In sum, the elected branches have a major say in the career of judges at all levels of the judicial hierarchy in the United States.

47 See supra Section B.

48 See ROBERTO UNGER, WHAT SHOULD LEGAL ANALYSIS BECOME 72–73 (1998); Jeremy Waldron, Dirty Little Secrets, 98 COLUM. L. REV. 510 (1998).

49 For the discussion of this traditional distinction, see FRITZ W. SCHARPF, GOVERNING IN EUROPE: EFFECTIVE AND

DEMOCRATIC? 6–30 (1999); Fritz W. Scharpf, Legitimacy in the Multilevel European Polity, 1 EUR. POL. SCI. REV. 173 (2009).



reports of these bodies lacks openness and transparency. Other stakeholders can rarely comment on or influence the wording of the proposed standards. Even if one were to assume that such standards were to be drafted by judges only, the lack of input legitimacy is further exacerbated by the problem of representation. This lack of representation has two dimensions: State-internal and trans-European. With respect to the former, it is questionable how far the judicial members of the current European or international consultative bodies really represent the national judiciaries as a whole and not rather the particular interests of a narrow group of court presidents and senior judges. One might even suggest, with a certain degree of simplification, that a narrow coterie of judicial officials meets few times a year in a closed session and once in a while announces a standard that defines the desired contours of their own power. With the respect to the latter, there is the trans-European representativeness problem within the consultative and advisory judicial bodies. How far and how strongly are the various judicial and legal cultures present within Europe indeed represented? More narrowly, why is it that the JC Euro-model so closely resembles the Italian model of judicial council? How was it possible that the Italian model found so widespread support among judges from other European states and became translated into a “Euro-model”? True, the Italian Consiglio superiore della magistratura (CSM) is considered a success in Italy and is one of the oldest judicial councils in Europe. Arguably, it might therefore enjoy a privileged status based on its seniority. Still, the Italian CSM has also been repeatedly criticized for corporativism, a lack of judicial accountability, and suboptimal efficiency.

51 Moreover,

there were other templates to choose from that range from a different model of judicial council such as the one at place in France to the Court Service model or the German Ministry of Justice model.

52 One must thus search for additional explanations. As one

commentator suggested, the success of CSM as a European model “is also the result of the international presence and activism of the Consiglio superiore della magistratura and its members (it is not by chance that the ENCJ was formally established at the General Assembly of 20–21 May 2004 in Rome, and that [its] first President was Italian).”

53

51 See CARLO GUARNIERI & PATRIZIA PEDERZOLI, THE POWER OF JUDGES: A COMPARATIVE STUDY OF COURTS AND DEMOCRACY 54–59, 174–77 (2002); M. L. Volcansek, Judicial Selection in Italy: A Civil Service Model with Partisan Results, in APPOINTING JUDGES IN AN AGE OF JUDICIAL POWER: CRITICAL PERSPECTIVES FROM AROUND THE WORLD 159 (Kate Malleson & Peter R. Russell eds., 2006).

52 See supra Section D.

53 See Simone Benvenuti, Presentation at the XXII World Congress of Political Science on ‘Challenges of Contemporary Governance’ (July 19–24, 2012): The French and the Italian High Councils for the Judiciary Observations Drawn from the Analysis of Their Staff and Activity (1947–2011). See infra Section H (explaining the strong influence of Italian and Latin-style judicial councils within the European structures and their ensuing ideological domination in elaborating common standards therein).


Second, the Euro-model ignores the worldwide rise of power of courts—which calls for greater accountability of judges—hardly for their increased insulation behind the veil of a fully self-administering judicial council. Furthermore, while l’esprit de corps and ethical standards may be higher in established democracies, it is not necessarily so in developing or transforming countries. Leaving the judiciary unchecked by external actors in the latter countries might easily lead to corruption and judicial accountability avoidance.

54

Third, even if we assume that the judiciary should even be granted further autonomy under such conditions, the Euro-model is not really able to deliver it with respect to individual judicial decision-making. It neglects the internal threats coming from within the judiciary. The Euro-model shields the judiciary from external influence, but it pays little attention to the improper pressure on individual judges exercised by senior judges and court presidents. It is important to remember that the judiciary is not “it” but “they.”

55 The

Euro-model empowers only a narrow group of judges who in turn may favor their allies and shape the judiciary according to their views.

56 They may even use their newly accrued

power to settle the score with their competitors, critics or opponents within the judiciary.57

This is a significant failure of the JC Euro-model, which is embedded in its institutional design. The omission of the JC Euro-model we identified above

58 ought to be recalled at

this stage: Court presidents and vice-presidents are generally not precluded from becoming members of the judicial council. There is typically no set maximum number of these judicial officials among members of the judicial council. Similarly, the JC Euro-model does not set any limit on the number of senior judges of appellate and top courts that can sit in the judicial council. Thus, the judicial council does not need to be representative of all echelons of the judicial hierarchy. This means that lower court judges may also elect appellate judges or court presidents as their representatives in the judicial council. As a result, court presidents may have a majority on the judicial council. The model previously advocated as “self-governance” of judges quickly becomes nothing else than unbounded administration by senior judicial officials. This is particularly troubling in the CEE region, where court presidents have strong powers within their courts—the meso-

54 On judicial accountability avoidance and other negative accountability phenomena, see David Kosař, The Least Accountable Branch, 11 INT’L J. CONST. L. 234, 259–60 (2013).

55 See Adrian Vermeule, The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy Of Division, 14 J. CONTEMP. LEGAL ISSUES 549 (2009).

56 See Béla Pokol, Judicial Power and Democratization in Eastern Europe, in EUROPEANISATIONS AND DEMOCRATISATION: THE SOUTHERN EUROPEAN EXPERIENCE AND THE PERSPECTIVE FOR THE NEW MEMBER STATES OF THE ENLARGED EUROPE 165, 182, 188 (2005).

57 See infra Section H (discussing the Slovak case study).

58 See THOMAS, supra note 35.


level.59

If they are allowed to combine their powers at the meso-level with additional powers at the meta-level (within the judicial council), they accumulate considerable power within the judicial system. One might even wonder, with tongue-in-cheek, whether the silence of the JC Euro-model regarding the selection of the representatives of the judiciary was not intentional. The Euro standards were created under the auspices of various consultative bodies of the EU and the CoE. In these bodies, national judiciaries are usually represented by the Supreme Court president or prominent appellate judges.

60 This narrow group of court presidents and

senior judges would hardly be inclined to share or even to yield their own extant powers. When they advocated the transfer of the competences from the Ministry of Justice to the judiciary, what they likely had in mind was in fact the transfer of this power to them acting as the judicial council. That might explain why the Euro-model leaves great latitude regarding the electoral laws of the judicial members of the judicial councils. Put differently, the silence of the JC Euro-model on the eligibility of court presidents to become members of the judicial council and on the ratio of senior judges on the judicial council is its critical component.

61 Without it, there might have been far less support for the JC Euro-model

among judicial officials in power. Fourth, it is confusing or even suspicious that international and supranational bodies in which representatives of established democracies still have a major say advocate for the model of court administration that most established democracies themselves have been either reluctant to introduce so far or outright rejected. Thus, the already outlined lack of democratic legitimacy was further multiplied. Not only was the way in which such recommendations have been adopted at the international/European forum and their content highly problematic, but in those established countries, where democratic control of the incoming international standards was possible, they were not taken on board. Thus, such standards could not have gained any further or substitute legitimacy through the national levels, by being embraced in established democracies and thus providing certain “leading by example” for the transforming countries. Fifth, the Euro-model is portrayed as an “off-the-shelf” product that will produce the promised results in any environment. It does not account for the specifics of each judicial

59 See PIANA, supra note 20, at 43–44; Solomon, supra note 40, at 354; Michal Bobek, The Administration of Courts in the Czech Republic: In Search of a Constitutional Balance, 16 EUR. PUB. L. 251, 253–54 (2010); Kosař, supra note 54. 60 See supra Section B.

61 See THOMAS, supra note 35. We will explain how this electoral law, or its deficiencies, can influence the functioning of the judicial council in Section H, where we discuss the Slovak case study. The mode of selection of judicial members had great consequences also on the operation of the Hungarian judicial council (before Orbán’s 2011 judicial reform). See Pokol, supra note 56, at 188–89.


system, its vices and virtues, the legal culture the relevant judiciary is embedded in and its historical legacies and path-dependency. In this sense, the Euro-model is unhistorical. However, in reply to such normative critique, a realist might suggest that in “going international” and projecting their own ideas and wishes onto the international forum, judges of the last few decades just started copying the behavior of national executives. The executive “escape” from the national parliamentary control towards the international or the European level is by now a well-known phenomenon in post-WWII Europe and beyond.

62 In Europe and in particular within the European Union, it just reached

quantitatively new dimensions. National governments, which are facing unpopular but necessary measures to be taken on the national level, which would be either harmful to their reputation or could not be even pushed through the national parliament, take these issues to the European or international level. There they find sympathetic colleagues from other national administrations, frequently facing similar set of problems in their respective countries. After reaching a mutually beneficial agreement and adopting a new treaty or a new EU measure, they return to the national constituency with the impenetrable argument “Brussels wills it” in case of a EU measure and with reference to “our international obligations” with respect to international treaties. Thus, is there anything surprising or strange with judges starting copying the same behavior as the national administrations? Both of them are at odds with democracy and accountability. This development, however, may not necessarily mean that judges would immediately become an “international priesthood” which would seek to “impose upon our free and independent citizens supra-national values that contradict their own.”

63 On the

international level, judges meet in public. The outcomes of the meetings are known and published. At the same time, there is indeed a qualitative leap: Judges became an internationally organized force.

64

62 Traditionally, governments do not have a strong record for willingly keeping the national parliaments informed about international affairs. Even if they inform national parliaments, the parliamentary control tends to be carried out only ex post and limited to the (non)ratification of treaties negotiated by the executive. Within the EU context, see NATIONAL PARLIAMENTS ON THEIR WAYS TO EUROPE: LOSERS OR LATECOMERS? (A. Maurer & W. Wessels eds., 2001); John Fitzmaurice, National Parliamentary Control of EU Policy in the Three New Member States, 19 W. EUR. POL. 88 (1996).

63 Antonin Scalia, Commentary, 40 ST. LOUIS U. L.J. 1119, 1122 (1996).

64 The buzzword of the last 10 years or so in Europe is “judicial networks.” See Monica Claes & Maartje de Visser, Are You Networked Yet? On Dialogues in European Judicial Networks, 8 UTRECHT L. REV. 100 (2012); ALEXIS LE

QUINIO, RECHERCHE SUR LA CIRCULATION DES SOLUTIONS JURIDIQUES: LE RECOURS AU DROIT COMPARÉ PAR LES JURIDICTIONS

CONSTITUTIONNELLES 179–87 (2011). See also Arjen W.H. Meij, Circles of Coherence: On Unity of Case-Law in the Context of Globalisation, 6 EUR. CONST. LAW REV. 84 (2010).


F. Promoting the Euro-Model in the New Europe The story of the importation of the judicial council Euro-model of court administration into the New Europe (e.g., the post-communist countries in Central and Eastern Europe) is one of indirect, diagonal law exportation through the pan-European level. The JC model has been exported through the European institutions and marketed as the “Euro-solution” for the judicial reform across the CEE. The puzzling question pertains to how it was possible that a model of a strong and insulated judicial council, which might be said to generate certainly less than optimal results in terms of judicial performance in the countries of its origin,

65 has been able to become the dominant model, and in fact the “Euro-model,”

pushed forward and advocated by the European institutions. There are several factors that were crucial in this marketing success: Structural as well as circumstantial. Structurally speaking, genuine reform and transformation is a lengthy and tiresome process.

66 It is therefore not much favored by national or international political

actors, who wish for visible and quick solutions. What tends to be preferred is the establishment of a new, grand institution over the reform of the old one(s). In terms of a judicial reform, a new national council of the judiciary as the symbol of a new era might be more visible politically and better internationally as a sign of “progress” than the tedious small-scale work on the ground, such as, for instance, issues of work management, auxiliary court staff, systems of random case assignment, publicly accessible online search engines of national case law, reasonable judicial performance evaluation, and so on. This is not to suggest that these two issues, macro- and micro-level reform, are not connected. Rather, what is suggested is that once the “grand design” in the form of a new umbrella institution of a judicial council has been created, the appropriate box on the international compliance sheet has been checked. This invariably meant, in terms of judicial reform in the CEE, that once a new judicial council based on the best Euro-standards was established, the “mission accomplished” flag was flung. Attention quickly moved to other policy areas and other institutions. However, as evidenced in a number of countries in the CEE, the real problems were just about to start.

65 See, e.g., sources cited supra note 51 (quoting the critical voices on the state and performance of the Italian CSM). The same model has delivered rather questionable results also in Latin America. See sources cited supra note 45.

66 The question is also when it is over, if ever. A legal transformation may be conceived of at different levels. In the narrow sense, it just means the shift from one regime to another, a mere change in the constitutional structure. In the broader sense, it means much more: Not just a constitutional shift, but also change in values, their enforcement and the real life of the new institutions. See, e.g., CSABA VARGA, TRANSITION TO RULE OF LAW: ON

THE DEMOCRATIC TRANSFORMATION IN HUNGARY 74 (1995). Varga quotes the former president of the Hungarian Constitutional Court, L Sólyom, who claimed that for him, the “transition” was, from the legal point of view, finished in October 1989. From then on, Hungary has been a law-governed state and there is no further stage to which to transit. Id.


Structural preference for institutional novelty to the detriment of genuine internal reform was met with ideal circumstantial conditions, both external and internal. Internally, those in favor of a partial or full self-administration of the judiciary by the fiat of a judicial council tended to be judges themselves, particularly senior judges. Their suggestions would often be supported by non-governmental organizations as well as parts of legal scholarship. To be sure, politicians and administrators tend not to welcome the idea of a self-administering judiciary. However, in systems of transition, their voices tend to be weakened, especially if external pressure is being put on them.

67 The pressure was

particularly strong in the EU pre-accession stage. Potential national political disagreement was considerably weakened by the EU conditionality, and the “alliance of interests” in favor of the establishment of robust judicial councils was the strongest. The national judicial, non-governmental, and academic demands were boosted by external support, both governmental and non-governmental. On the governmental level, both the CoE and the EU were, in terms of standards, suggesting the introduction of the judicial council Euro-model as the model for the transition countries in the CEE.

68 This overall and general “soft” suggestion as to the best

practice started becoming a de facto requirement with respect to the CEE candidate countries for EU membership. In 1993, in the so-called Copenhagen criteria,

69 the EU set a

number of conditions a candidate country must fulfill in order to become a new Member State of the EU. The first of the criteria required that the candidate country achieve stability of institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities.

70

The Copenhagen criteria were later fleshed out in Agenda 2000.

71 Therein, the European

Commission announced that it would report regularly to the European Council on progress made by each of the candidate CEE countries in preparations for membership and that it would submit its first Report at the end of 1998. Requirements as to the quality of the

67 Many scholars have been perplexed about why the CEE parliaments gave up their power so easily. See, e.g., Cristina Parau, The Dormancy of Parliaments: The Invisible Cause of Judiciary Empowerment in Central and Eastern Europe, 49 REPRESENTATION 267 (2013).


69 CONCLUSIONS OF THE PRESIDENCY, EUROPEAN COUNCIL IN COPENHAGEN 13 (June 21–22, 1993), http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/72921.pdf.

70 See, e.g., KOCHENOV, supra note 18; Kirstyn Inglis, EU Enlargement: Membership Conditions Applied to Future and Potential Member States, in THE EUROPEAN UNION AND ITS NEIGHBOURS: LEGAL APPRAISAL OF THE EU’S POLICIES OF

STABILISATION, PARTNERSHIP AND INTEGRATION (Steven Blockmans & Adam Lazowski eds., 2006).

71 Agenda 2000 - Vol. I: For a Stronger and Wider Union, COM (2000) 97 final (July 13, 1997); Vol. II: The Challenge of Enlargement, COM (2000) 97 final (July 15, 1997).


judicial system in the candidate countries were included under the heading “Democracy and the Rule of Law.” One of the clearly stated requirements included in the Commission’s regular monitoring reports was the “independence and self-government of the judiciary.”

72

The message sent from the European institutions in this respect was quite clear: If you wish to join the “Euro club,” you ought to introduce (at least some features of) self-government of the judiciary.

73 This external pressure and conditionality were further

amplified by a set of transnational actors, which could be aptly labeled as the international “rule-of-law industry.” These transnational actors would include a heterogeneous set of non-governmental organizations, development agencies, and international scholars who would invariably also push for the establishment of judicial self-administration in the form of a judicial council. A notable example from this set of actors with respect to the EU candidate countries in late 1990s and early 2000s would be the Open Society Institute. It compiled a series of comparative reports on the state of the judiciary in Central and Eastern Europe that, among other things, reprimanded those countries that would not have adopted court self-administration.

74

However, while it is open to debate which of the two factors, external or internal, played the key role in a given CEE country, it is clear that some domestic actors greeted the JC Euro-model with open arms. External pressure met with partial internal demand. Several scholars have even suggested that domestic judicial institutions, rather than supranational influences, have been the major factor in judicial policymaking and agenda setting in this region. For instance, Daniela Piana argues in her book about judicial governance in five post-communist countries in CEE (Bulgaria, the Czech Republic, Hungary, Poland, and Romania) that the actors (the Ministry of Justice or the Judicial Council) who emerged as

72 See, e.g., European Commission’s Regular Report On Czech Republic’s Progress Towards Accession, at 18–20, SEC (2001) 1746 final (Nov. 13, 2001); at 22–24, SEC (2002) 1402 final (Oct. 9, 2002).

73 For example, mostly in the period before the EU Accession. The two new Member States that joined the EU in 2007, Romania and Bulgaria, represent in this respect a special case of de facto extending the pre-accession conditionality to the period after the Accession. Although, the EU’s input has been crucial in these countries. Diana Bozhilova, Measuring Success and Failure of EU-Europeanization in the Eastern Enlargement: Judicial Reform in Bulgaria, 9 EUR. J. OF LEGAL REFORM 285 (2007). Parau, supra note 12, at 655, states:

Ironically, it was the Commission who imposed on Romania the formal institutions designed to autonomise the Romanian judiciary. Without such pressure it is highly unlikely that the SCM would have been given so much power and autonomy: ‘The 2004 reform would probably not have happened without pressure from the Commission and pressures associated with wanting to join the EU . . . or it might have taken longer, it might not have followed the same path . . . . The European Commission was strongly associated with it.’

74 Cf. OPEN SOCIETY INSTITUTE, MONITORING THE EU ACCESSION PROCESS: JUDICIAL INDEPENDENCE 112–13, 127–28 (Central European University Press 2001).


winners from the first transitional wave of reforms were better placed in the second pre-accession wave. They accordingly exploited the opportunities provided by the looming EU accession to entrench existing domestic allocations of powers.

75 These winners used their

leverage from the first transition wave to increase their own powers or to at least prevent the transferal of significant powers to other organs. Cristina Parau puts forth a different argument,

76 but she also posits that the supranational origin of the JC Euro-model does not

adequately explain the success of this design template. She argues that an equally important but far less observable cause for their success was the “dormancy” of the CEE parliaments. In particular, it was the puzzling lack of resistance by the majority of elected representatives to their own correlative disempowerment.

77

Against such supranational and domestic demand for a new institution for the judiciary, the Latin-styled Judicial Council model clearly emerged as the model for the CEE countries. The imposition of this model through the European institutions yet again confirms the fact that, as in the business, the product that sells in the end is not necessarily the best one in terms of quality, but the product that has the better marketing. In contrast to other models of judicial administration,

78 the advantage of the Latin-styled judicial council model

is that it presents an advanced structure with dedicated force to entertaining “foreign relations” within the national judicial council structures. The model is thus much better able to “reproduce” itself internationally. In the words of the previously introduced marketing parallel, there is an in-house (international) “sales department.” One may only contrast this with the (Germanic) Ministry of Justice model or the much more restrained and pragmatic quality-oriented court services model in Northern Europe, which does not dispose of means and tools for self-propagation on the international level. In other words, such models are arguably more concerned with internal quality and efficiency than with entertaining flamboyant external relations.

79

75 PIANA, supra note 20, at 162–63.

76 Parau, supra note 67. See also Cristina Parau, Explaining Judiciary Governance in Central and Eastern Europe: External Incentives, Transnational Elites and Parliament Inaction, (67) 2 EUROPE-ASIA STUDIES (forthcoming 2015).

77 In Slovakia, which is covered neither by Piana’s nor Parau’s research and which we discuss in more detail below (Section H), the internal factors prevailed as well. The major rationale for the introduction of the JC Euro-model in Slovakia was “anti-Mečiarism.” The period of “mečiarism” refers to years between 1992 and 1998, when Vladimír Mečiar was the Prime Minister of Slovakia. Mečiar was known for his autocratic style of government. In 1998, after the democratic centrist coalition won the general elections, it wanted to ensure that “Mečiar-style interferences” with the judiciary could not be repeated. In order to prevent these interferences, the centrist coalition founded a new institution, the Judicial Council of the Slovak Republic, which meets all the criteria of the Euro-model.

78 See supra section D.

79 See supra notes 51–52 and accompanying text.


Thus, in contrast to the complex variety of national models of administration of the judiciary extant across Europe, the Latin-style judicial council model provided an ideal off-the-rack and ready-made product available at the right place in the right time. Apart from this, the model was also alluring in its seemingly elegant simplicity: A clear-cut, new institution will be introduced, whose task is to redress the deficiencies of the previous model. Before entering into the discussion of the genuine life and sociological impact of judicial councils in CEE, a glance at the (normative) promise of what the model was supposed to deliver in the first place is nonetheless necessary. G. What Was the Euro-Model Supposed to Deliver? If we want to identify the goals the JC Euro-model was supposed to achieve, we must search through the documents of the Council of Europe and the European Union. Two caveats must be added at the very beginning. First, it goes without saying that goals set by the “founding fathers” and advocates of the JC Euro-model may somewhat differ from the actual effects of this model. Some sort of standard functional deviation is thus inevitable, certainly in the short- or mid-term. It is clear, however, that if the ensuing reality of a model denies its founding values and promises completely, one can hardly talk of any permissible deviation or modification. Second, in our search for the effects of the introduction of the Euro-model, we focus only on institutional and personal consequences for the judiciary and judges. We thus leave aside the potential impact of this model on various values external to the judiciary such as “the rule of law, the promotion of civil liberties, individual freedoms [and] basic human rights. . . .”

80 This is intentional: As

important and grandiose as these values are, they are also either contested terms and/or so vague that they are in practice impossible to measure to any reasonable degree.

81

We can therefore narrow down the question to be answered in this section as follows: Which values or characteristics of the judiciary were the introduction of the Euro-model supposed to enhance? There is one particular value which stands out in the policy documents produced under the auspices of the CoE and the EU: Judicial independence. In fact, virtually all of the documents of these two bodies claim that the JC model improves judicial independence.

82 Unfortunately, none of these documents spell out what they

mean by judicial independence. They usually acknowledge the difference between the independence of individual judges and the independence of the judiciary and claim that

80 See, e.g., ENCJ, supra note 24, at 2.

81 See, e.g., Tom Ginsburg, Pitfalls of Measuring the Rule of Law, 3 HAGUE J. RULE L. 269 (2011); Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept?, 21 L. & PHIL. 137 (2002) (regarding the rule of law). These challenges apply, mutatis mutandis, to other values mentioned in ENCJ, supra note 24.

82 See ENCJ, supra note 24, at para. 1.7; CCJE, supra note 24, at para. 8; Budapest Resolution, supra note 25, at para. 1; European Charter on the Statute for Judges, supra note 24, at para. 1.3; Recommendation CM/Rec (2010) 12, supra note 25, at para. 26.


judicial councils enhance both of these facets of judicial independence.83

It would appear, nonetheless, that the documents clearly prioritize the latter aspect, the autonomy of the judiciary.

84

Other potential values or goals of the JC model are mentioned far less frequently. As early as 1994, the CoE stressed the importance of the efficiency of judges.

85 Later on, both the

Council of Europe and the European Union contended that the JC model improves the efficiency of the judiciary.

86 In fact, speeding up judicial procedures and reducing

workloads became a mantra of the EU Accession Reports. Eventually, the quality of justice was added as a separate value, which the JC model is also supposed to deliver.

87

Surprisingly, much less attention has been paid, until very recently, to other generally acceptable values such as transparency, participation, and accountability. During the accession process, the European Commission was mostly preoccupied with judicial independence and the efficiency of the judiciary and side-lined transparency mechanisms.

88 So was the CoE.

89 Recently, both of these international organizations have

stressed the importance of transparency in their documents on judicial councils.90

They nonetheless tend to focus on the transparency of the judicial council itself and not on the transparency of the judiciary.

91 Participation has undergone similar development. The EU

and the CoE, after initial reluctance, relaxed their position on the composition of the judicial council and accepted the parity between judges and non-judges.

92

83 See CCJE, supra note 24, at para. 8; Recommendation CM/Rec (2010) 12, supra note 25, at para. 26.

84 See, e.g., ENCJ, supra note 24, at para. 2.2; CCJE, supra note 24, at paras. 12–13; Recommendation CM/Rec (2010) 12, supra note 25, at para. 4.

85 See Recommendation No. R (94), supra note 14.

86 See Budapest Resolution, supra note 25, at para. 1; ENCJ, supra note 24, at para. 1.7; CCJE, supra note 24, at para. 10; Recommendation CM/Rec (2010) 12, supra note 25, at para. 26.

87 See ENCJ, supra note 24, at para. 1.7; CCJE, supra note 24, at para. 10.

88 Compare in particular, the pre-Accession Reports with respect to the individual CEE countries, put together by the European Commission. See sources cited supra notes 71, 72.

89 See, e.g., Recommendation No. R (94), supra note 14; European Charter on the Statute for Judges, supra note 24 (observing that there is no mention to transparency at all).

90 See, e.g., ENCJ, supra note 24, at paras. 1.7, 7.2; Budapest Resolution, supra note 25.

91 See CCJE supra note 24, at Part VI; ENCJ, supra note 24, at para. 2.5.

92 Compare ENCJ, supra note 24, at para. 2.2, or Recommendation CM/Rec (2010) 12, supra note 25, at para. 27 (referring to the most recent documents that accept “only” 50% of judicial members in the judicial council), with CCJE, supra note 24, at para. 18 (referring to older documents that claim that “a substantial majority of the members should be judges”).


What is most striking, given the well-known problems of venality of CEE judiciaries and their low ethical standards, is how little attention the EU and the CoE paid to judicial accountability. The relevant policy documents that define the JC Euro-model do not mention this value at all; despite the fact that judicial accountability has gradually emerged as the second most important goal of judicial councils in scholarly literature, competing with judicial independence.

93 The relevant policy documents focus on (limited)

accountability of the judicial council instead of accountability of the judiciary and/or individual judges,

94 or make clear that “the accountability of the judiciary can in no way call

into question the independence of the judge when making judicial decisions.”95

The fact that not a single document of the consultative organs of the CoE or the EU produced over the years sets standards for how judicial councils and self-administrating judiciaries ought to address corruption of judges is also quite telling. All in all, the values promoted and goals set deeply reflect the way in which the standards were created—by (senior) judges and for (largely also senior) judges. Thus, great attention is being paid to institutional and power-enhancing elements, whereas somewhat meager attention has been paid to the less comfortable—but for the functional judiciary—extremely important “housekeeping” elements. In sum, the declared “general mission”

96 of the JC Euro-model has been to safeguard and

enhance judicial independence, which was primarily viewed in its macro- or institutional dimension. Besides judicial independence, the Euro-model was also supposed to, according to its “founding fathers,” deliver the following “goods”: (1) To increase the efficiency of the judicial system; (2) to enhance the quality of justice; (3) to depoliticize the judiciary; and, according to most recent documents, (4) to increase the transparency of the judicial system. H. What Did the Euro-Model In Fact Deliver? Stated in a nutshell, the constitutional independence of the judicial power in the form of a judicial council might work in the case of mature political environments, where decent ethical standards extant and embedded in the judiciary guarantee that the elected or appointed judges or administrators will put the common good before their own. However, the same constitutional insulation of the judicial power in countries in transition in the New Europe has been either awkward or has had outright disastrous consequences for

93 See Garoupa & Ginsburg, supra note 30, at 110.

94 See CCJE, supra note 24, at Part VI. But cf. ENCJ, supra note 24, at para. 2.2.

95 Budapest Resolution, supra note 25, at para. 10.

96 CCJE, supra note 24, at Part II Title.


judicial independence and for the general state and reform of judiciaries in these countries. Judicial self-administration in the form of a judicial council is based on the (generally understandable) assumption that the more senior members of the profession have more experience. They should thus be better administrators. The judicial councils are designed to bring the more senior members of the judiciary to the fore, either directly, making some senior judges ex lege members of the JC (chief justice, presidents of other supreme court, and so on), or indirectly, by election. However, in transitional societies, which experience value discontinuity, there is always an inherent discrepancy between experience and values. Those with experience will typically adhere to the old system and other values. Senior judges will be inherited from the communist regime. Given the lack of purges within the judiciary and the shortage of judges after the fall of communist regimes, the number of judges from the communist era is particularly high at the upper echelons of the CEE judiciaries. One may speak of an “inverse pyramid.” As Zdeněk Kühn put it, “the higher one goes in the structure of the judiciary, the higher the percentage of ex-communists.”

97

It is hard to imagine communist-era judges turning overnight into independent and responsible judicial managers, who are willing to put the good of the justice system before their own. However, if a national self-administrative body of the judiciary is established soon after the regime change, it is precisely the communist-era judges who, because of their standing and seniority, will be given the key positions in the new institutional setup. In the CEE countries that introduced the JC Euro-model,

98 this scenario kept repeating itself

in practice. Judicial councils and the self-administration of the judiciary came simply too early, before much or genuine structural reform and, above all, the natural renewal of judges could take place. Once established, the senior—often Communism-inherited—judicial cadres took over, either halting or sometimes reversing the reforms already carried

97 Zdeněk Kühn, The Democratization and Modernization of Post-Communist Judiciaries, in CENTRAL AND EASTERN

EUROPE AFTER TRANSITION 177, 181 (Alberto Febbrajo & Wojciech Sadurski eds., 2010).

98 Note that not all CEE countries adopted the JC Euro-model. For instance, the Czech Republic retained its Ministry of Justice model. Although, the Czech Republic is not alone. Some countries that introduced the judicial council model did not opt for the JC Euro-model. For instance, Poland never transferred virtually all powers regarding the career of judges to its National Council of the Judiciary (NCJ) and, moreover, in 2007 it banned court presidents from membership in the NCJ. See Adam Bodnar & Lukasz Bojarski, Judicial Independence in Poland, in JUDICIAL INDEPENDENCE IN TRANSITION 667, 669–79 (Anja Seibert-Fohr ed., 2012). Estonia also preferred the co-operative model of court administration where judicial councils share many powers with the Ministry of Justice. See Timo Ligi, Judicial Independence in Estonia, in JUDICIAL INDEPENDENCE IN TRANSITION 739, 741–55 (Anja Seibert-Fohr ed., 2012). In contrast, Slovakian, Romanian, Bulgarian and Hungarian (until Orban’s judicial reforms in 2011) judicial councils are examples of the JC Euro-model.


out. However, this time around, the political process cannot say much in this respect, because a constitutionally entrenched judicial council runs the show. The resulting picture is negative and differs solely in the degree. From somewhat silly, but in their nature harmless, façades of judicial independence, which still hide some promise of becoming functional and indeed independent system one day, to judicial councils turning into mafia-like structures of judges seeking personal gain and using the new institutional structure for power oppression. The fact that the Euro-model for the creation of the “right” form of a judicial council came with only the institutional skeleton and little or no internal judicial virtues was understandable and predictable to a certain degree. Law importation is typically limited to the importation of the structure—hardly to simultaneous importation of its internal culture and conventions.

99 What is being exported is the institutional exoskeleton, not the

flesh that in the end forms the genuine life of the institution. There was, however, a further problem with the skeleton itself: The institutional structure created and recommended

100 has in fact no genuine equal in the national states.

How could a model be so strongly recommended if it in fact had no genuine parallel in reality? The point to remember in this respect is the way in which the recommended Euro-model was created, described in the previous sections of this article; it was created by national judges meeting in various European and national fora and conjuring a model that they themselves would like. Such a model, apart from the obvious normative problems associated with its creation,

101 is also flawed from a functional point of view. The end

product is in fact a mélange of judicial wishes, but the model was never genuinely tested in a real legal environment. One may even ask why the CEE countries, most of which were heavily influenced by the German and Austrian legal tradition, were asked to opt for the Italian model of court administration. Had the choice been phrased as either the German/Austrian model or the Italian model instead of either the German/Austrian model or the “European” model, the answer of the CEE governments could have been different. With respect to the latter option, it has been fascinating to see how the key stakeholders (the community of professional networks of judges, top academic jurists, NGOs and legally trained politicians interlocked with the CoE and the EU organs) managed to label their model as “European,” despite the fact that such model solely existed in one EU Member State, and how the

99 See also MICHAL BOBEK, COMPARATIVE REASONING IN EUROPEAN SUPREME COURTS 255–72 (2013).

100 See in particular the judicial council model envisaged by ENCJ, supra note 24 and CCJE, supra note 24.

101 See supra Section E.


wishes of these stakeholders, typically put together in a sort of soft-law instrument, became the binding norm. To clarify, we do not claim that the Italian model of court administration is by nature problematic and does not work in Italy.

102 Maybe it is even the best model for Italy. We are

neutral regarding this claim. What we argue is that the Italian model, marketed as the “European” model in the CEE, has had deleterious effects in the CEE and should not have been transplanted to CEE countries. The reason is not only the time factor outlined above (i.e. that extensive self-administration of the judiciary before its international reform provides for a problem), but also the fact that certain “Italian” preconditions are not met in the CEE. For instance, in Italy judges are promoted on the basis of seniority. Therefore, there is no opportunity to use this mechanism selectively to promote the allies of the current establishment at the Consiglio superiore della magistratura and deny the promotion of their critics. Similarly, Italian court presidents do not have such vast powers as their CEE counterparts. In contrast to post-communist countries, Italy also has no tradition of rigging case assignment by court presidents and certain mechanisms such as discretionary salary bonuses for judges are not available there.

103 Finally, the homogeneity

and l’esprit de corps of the Italian judiciary is certainly higher than in CEE judiciaries. All of the abovementioned factors account for the emergence of façades of judicial independence with respect to the newly established judicial councils in transition countries in the CEE. Unfortunately, there might also be more pathological developments within such a new institution, in which senior judicial cadres coming from the communist period are given the chief say. This may even amount to “hijacking” the new institution by the communist-era judicial elites, and sealing it off behind a veil of judicial independence. The Slovak National Judicial Council might be a sad example in this respect.

104 In 2001,

Slovakia opted for the JC Euro-model following the fall of the autocratic Mečiar’s government. The Judicial Council of the Slovak Republic (JCSR) is a body with constitutional standing.

105 It is composed of eighteen members: Eight judges are elected from within the

judiciary, three members are elected by the Slovak Parliament, three members are appointed by the President of the Slovak Republic, and three members are appointed by

102 On the functioning of Italian judicial council, Consiglio superiore della magistratura, see DANIELA PIANA &

ANTOINE VAUCHEZ, IL CONSIGLIO SUPERIORE DELLA MAGISTRATURA (2012).

103 Id.

104 We do not intend to provide a deep level empirical study of the impact of the JCSR on the Slovak judiciary. However, we believe that the ensuing snapshot at what has been happening after the introduction of the JCSR clearly support the main arguments of our article.

105 Art. 141a of the Constitution of the Slovak Republic and related legislation, especially zákon č. 185/2002 Z. z., o Súdnej rade Slovenskej republiky (Law no. 185/2002 Coll., on the Judicial Council of the Slovak Republic).


the Government. The last (or, more precisely, the first) member of the JCSR, which is at the same time ex lege its chairman, is the President of the Slovak Supreme Court. In practice, professional judges were always in the majority in the JCSR. The “first” JCSR (2002–2007) was composed of twelve judges and six non-judges. The “second” JCSR (2008–2013) even consists of sixteen judges and two non-judges.

106 This development shows how important

it is to decide who selects judicial members of the judicial council and how the electoral law to the judicial council is designed.

107

Nonetheless, the importation of this new Euro-model has been unmatched by any visible rise in efficiency of the judiciary or the quality of justice. Depoliticization of the Slovak judiciary was also a rather wishful thinking. Every election of the JCSR’s chairman led to protracted constitutional litigation that attracted comments from all segments of the Slovak political scene. The new regime also allowed judges to become ministers without losing judicial office. Mr. Štefan Harabin exploited this option in 2006, when he became the Minister of Justice. In 2007, judges avowedly called for and accepted nominations to the JCSR from politicians. The election of the new president of the Supreme Court in 2008–2009 became a political theatre. However, the politicization of the judiciary reached its apex in 2010, when centrist parties won the parliamentary elections. The new government had little understanding of Harabin’s methods, and war broke out between the Minister of Justice, Mrs. Lucia Žitňanská, and Mr. Harabin. Not a single week passed without ferocious attacks waged by Harabin,

108 especially when Žitňanská announced her judicial reform that

was supposed to reduce the influence of the president of the Supreme Court and the JCSR on the Slovak judiciary. Harabin’s critics have been very vocal as well. All sides had another thing in common: They wanted to get as much support as possible from their political allies. Hence, the JCSR gradually brought the judiciary to the forefront of Slovak politics rather than insulating it from political tumult. Similarly, the JCSR did little to enhance the transparency of the Slovak judiciary.

109

Appointment as well as promotion of judges remained as opaque as under the Ministry of Justice model. It may have become even more nepotistic than before. The access to judicial decisions did not improve until the Ministry of Justice, not the JCSR, started to publish

106 Nominally at least 9 members must be judges; in practice, however, even the other institutions appoint judges as members of the JCSR.

107 See supra Section E and notes 58–61.

108 For instance, he referred to Žitňanská as a “liar.” See Günter Woratsch, Zpráva o stavu slovenské justice – fenomén Štefan Harabin, Pecs (Apr. 23, 2011).

109 See id.; see, e.g., Jana Dubovcová, Umožňuje súčasný stav súdnictva zneužívanie disciplinárneho konania voči sudcom, zneužívanie výberových konaní a dáva výkonnej moci oprávnenie zasiahnuť do súdnej moci?, in VÝZVY

SLOVENSKÉHO SÚDNICTVA A MOŽNOSTI ZLEPŠENIA EXISTUJÚCEHO STAVU 53–56 (Transparency International Slovensko ed., 2010); LUKASZ BOJARSKI & WERNER STEMKER KÖSTER, THE SLOVAK JUDICIARY: ITS CURRENT STATE AND CHALLENGES 94, 107–09 (2011).


online all decisions of district and regional courts in civil and commercial law cases in 2006, and passed a law that required online publication of all judgments of Slovak courts in 2011.

110 To the contrary, the JCSR hindered transparency. The JCSR has been accused of

per rollam voting,111

secretiveness, and holding its meetings in awkward locations that dissuaded the public and journalists from attending them. The introduction the JCSR had even more negative effects on the public confidence in the Slovak judiciary. To be fair, the situation was far from bright in 2002, when the JCSR began to operate. The results of the 2002 Transparency International poll speak for themselves: 60% of the respondents stated that corruption at courts and prokuratura existed and was widespread; 25% of the respondents stated that corruption at courts and prokuratura existed but they did not know how widespread it was; and only 1% stated that corruption at courts and prokuratura did not exist.

112 At that time, it was generally thought that the

judiciary reached a low point during Mečiar’s rule and that the situation could not get any worse. However, nine years after the JCSR began its functions, confidence in the judiciary reached its lowest ebb in Slovak history. The 2011 poll of the Institute for Public Affairs, which provided separate results for three categories of respondents—lay people, legal experts, and judges—shows the deleterious impact of the JC Euro-model. As to lay people, 35% of respondents trusted the Supreme Court of Slovakia and only 26% of respondents trusted the judiciary as a whole,

113 whereas 59% did not trust the Supreme Court and 70% did not

trust the judiciary.114

The judiciary ranked last among all public institutions. The view of experts was similar regarding the judiciary, but it differed significantly as to the Supreme Court. While 21% of experts trusted the judiciary, only 10% trusted the Supreme Court. The level of distrust vis-à-vis the judiciary was very high (79%), but the distrust of the Supreme Court reached an astonishing number (86%).

115 What is most shocking is the view

of judges themselves. Only 68% of respondent judges trusted the judiciary, whereas 32%

110 See Art. 82a of Law No. 757/2004 Z. z., as amended by Law No. 33/2011 Z. z. & Law No. 467/2011 Z. z.

111 Voting done by the so called “per rollam” (by letter) means that it is a voting without calling a meeting (e.g., by correspondence), which meant that nobody could attend the JCSR’s meetings.

112 Katarína Staroňová, Projekt “Súdný manažment” ako protikorupčný nástroj, in JEDENÁSŤ STATOČNÝCH: PRÍPADOVÉ

STUDIE PROTIKORUPČNÝCH NÁSTROJOV NA SLOVENSKU 215, 217 (Emília Sičáková-Beblavá & Miroslav Beblavý eds., 2008) (quoting the Transparency International Slovakia poll from 2004).

113 Note that the Constitutional Court of Slovakia is not considered to be a part of the system of general courts in Slovakia and thus it was not covered by this question.

114 INSTITUTE FOR PUBLIC AFFAIRS (IVO), SLOVENSKÁ JUSTÍCIA OČAMI VEREJNOSTI, ODBORNÍKOV A SUDCOV 1 (2011). Note that the remaining responses (up to 100%) was “I do not know.”

115 Id. at 2.


indicated that they did not trust the Slovak courts.116

The results of the poll regarding the Supreme Court are even more revealing. As many as 54% of judges in the survey responded that they did not trust the Supreme Court, while only 46% indicated that they trusted the Supreme Court.

117 This meant that judges themselves considered the Supreme

Court the least trustworthy institution in Slovakia. One thing has changed, however. Before the introduction of self-administration by the judiciary and the judicial council, one of the most frequently heard arguments was that any influence that the executive has over the judiciary would be misused in influencing the decision-making of the courts and individual judges. Judicial self-administration was thus presented as a way of protecting judicial independence and as preventing politicians from putting pressure on judges. However, even with self-administration and the shielding of judges from political pressures, instances of influencing judges and their individual decision-making still flourished and perhaps increased between 2002 and 2009. The only difference was that before it could at least be maintained that these things were carried out by the corrupt political elite, and because of system deficiencies. Now it was plainly the judges themselves who were to blame. Moreover, in 2009, with the election of Mr. Štefan Harabin to the presidency of the JCSR, the idea of judicial self-administration had lost any remaining credit in Slovak society. So did the idea that a judicial council of the Euro-model type could guarantee even a basic degree of judicial independence. Already the advent of Harabin to the head of the JCSR was quite telling: Harabin, after being appointed as the minister of justice in 2006, publicly announced steps which would be aimed at limiting the “undue power” of the self-administration of the judges. In 2008, when the position of President of the Supreme Court (and, by virtue of that position, also chairman of the JCSR) fell vacant, his policy changed. In early 2009, the Slovak government and parliament approved bills submitted by the minister of justice, Harabin. They carried out a series of amendments which broadened the scope of the self-administrative powers of the (already strong) JCSR, most significantly adding some budgetary and inspection powers. By this legislative change, the last remaining important competences of the ministry of justice were placed in the hands of the JCSR. In June 2009, as the Minister of Justice, Harabin sent a list of his preferred candidates to the JCSR, which pressured the electors. According to a 2011 Woratsch report, due to this pressure, several of his allies, many of them court presidents, became members of the JCSR.

118 Given this orchestrated support, Harabin was elected

unanimously by the JCSR to the position of the President of the Supreme Court and thereby, to the position of the chairman of the JCSR as well.

116 Id.

117 Id.

118 See Woratsch, supra note 108.


Since then, media allegations have included instances of corruption, nepotism and incompetence, abuse of the powers of the Supreme Court president and the misuse of the JCSR‘s disciplinary powers against Harabin’s critics.

119 Harabin was particularly eager to

silence his critics at the Supreme Court. He himself initiated twelve disciplinary motions against Supreme Court judges in 2009 and 2010. The JCSR chaired by Harabin triggered one more motion.

120 Several lower court judges who dared to criticize Harabin also faced

disciplinary trials, as a result of which they were often suspended and their salaries were significantly reduced during this interim period.

121

Harabin started to use other sticks too. Soon after he became the President of the Supreme Court, he reshuffled the composition of the Supreme Court chambers. He placed “recalcitrant” judges who did not agree with him in two chambers of the administrative division of the Supreme Court. He also made sure that these two chambers could decide on only certain categories of cases (such as detention cases, asylum, social security cases). All cases with a significant monetary aspect such as competition law or tax law cases went to other chambers. Harabin adopted the same approach to assigning individual cases. He bypassed the random case assignment by selective reassigning of cases, allegedly on efficiency grounds. Sometimes he changed the work schedule, which determines general rules for case assignment, as frequently as twenty-five times per year. It was reported that recalcitrant judges were given an extra workload, approximately sixty cases more than obedient judges. As an additional burden, these recalcitrant judges were forced to decide all detention cases that had to be decided within a statutory limit of seven days. These detention cases were initially supposed to be evenly distributed among all chambers.

122

Harabin also offered some carrots. He awarded generous salary bonuses to his allies and denied them to his critics.

123 According to a Supreme Court judge, the salary bonuses of

the Supreme Court judges in 2009 and 2010 varied from fifty euro per annum for recalcitrant judges to tens of thousands of euros for obedient judges.

124 The differences

119 See BOJARSKI & KÖSTER, supra note 109; Dubovcová, supra note 109, at 54–56; Woratsch, supra note 108.

120 Some of these cases are reported in BOJARSKI & KÖSTER, supra note 109, at 102–05.

121 Dubovcová, supra note 109, at 54–55.

122 The listed examples of Harabin´s judicial “administration” originate from Eva Mihočková, Šikanovanie v talári, PLUS 7 DNÍ (Dec. 12, 2011). See also Pavol Kubík & František Múčka, Ako úraduje Štefan I. Čistič: Pôsobenie nového šéfa Najvyššieho súdu SR varuje pred rozširovaním jeho kompetencií, TREND (Sept. 30, 2009); Pavol Kubík, Keď losuje Štefan Harabin: Na Najvyššom súde majú rozhodnutia predsedu občas väčšiu váhu ako paragrafy, TREND (Mar. 11, 2010).

123 For further details, see BOJARSKI & KÖSTER, supra note 109, at 111–12; Ľuboš Kostelanský & Vanda Vavrová, Harabinovi sudcovia zarobili viac ako premiér, PRAVDA (Aug. 12, 2010); Mihočková, supra note 122.

124 See Mihočková, supra note 122; See also Kubík & Múčka, supra note 122.


between the salary bonuses of obedient and recalcitrant judges widened exponentially. Further, all promotions became available only to “loyal” judges. In sum, the Slovak Judicial Council, created following the best practices of the Euro-model, has turned gradually into a “mafia-like” structure of intra-judicial oppression, run in the name of “judicial independence” by judges who started their judicial careers in the communist period. Whereas before, one might have nourished a somewhat idealistic hope that one day there would be enough political will to reform the administration of justice, the hopes for a new reform of a stillborn model, which meanwhile had acquired a constitutional status, are now close to zero. Similar negative examples from other countries in the New Europe that established strong judicial councils, such as Hungary,

125 Bulgaria,

126 or Romania,

127 keep telling the same story:

Granting extensive self-administration powers to the judiciary before genuine internal reform is dangerous. In a better scenario, the new institution will be a somewhat empty shell for a few years or decades to come. In a bad case scenario, which unfortunately appears more frequently, behavior and patterns start emerging which are very distant from anything the model was supposed to deliver: Individual judicial independence and impartiality is not only unprotected, it may be suppressed by judicial bosses. To speak of efficiency, quality, or transparency—other values apart from the judicial independence the system promised to deliver—would amount to idealism bordering on naivety. Conversely, there is the example of the Czech Republic. Castigated in a number of international reports,

128 the Czech Republic was considered, in terms of institutional

reform of the judiciary, the “black sheep” of the CEE region. By a historical accident rather than premeditated design, no judicial council was ever established in the Czech Republic, in spite of the EU pre-accession pressure. However, the post-communist Ministry of Justice model started evolving gradually over the years: More and more powers have been shared between the Ministry and court presidents.

129 Today, the Czech judiciary, in particular

through the court presidents, have a considerable say in the administration of courts. However, the power is shared between the Ministry and the presidents of courts. The system has thus been generating a different balance, which is perhaps more sound than

125 Pokol, supra note 56; Z. Fleck, Judicial Independence and its Environment in Hungary, in SYSTEMS OF JUSTICE IN

TRANSITION: CENTRAL EUROPEAN EXPERIENCES SINCE 1989, 12 (J. Přibáň, P. Roberts & J. Young eds., 2003).

126 See, e.g., Smilov, supra note 19, at 313.

127 Parau, supra note 12; Ramona Coman & Cristina Dallara, Judicial Independence in Romania, in JUDICIAL

INDEPENDENCE IN TRANSITION (Anja Seibert-Fohr ed., 2012).

128 See, e.g., OPEN SOCIETY INSTITUTE, supra note 74.

129 For detailed discussion, see Bobek, supra note 59.


judicial unilateralism and isolation in a judicial council: Mutual checks and balances between the executive, controlled by the Parliament, and senior members of the judiciary. In the face of the above outlined experience with judicial councils (questionable if not outright negative), what one may see today in the CEE are somewhat extreme political reactions and measures being taken against judicial councils and judicial bosses running them. A number of these measures are plainly inappropriate and extreme, being later censured by European institutions and/or the international community: The recent evolution in Hungary and the 2011 Hungarian constitutional reform is a case in point here.

130 Some of the measures taken by the new Hungarian constitutional majority

included radical reforms of the Hungarian judicial council and the judiciary as such.131

In spite of some of these measures being extreme, they should be read and understood in their context, which is not that dissimilar to other countries in the CEE. Politicians, lawyers, as well as the general public became increasingly frustrated with the judicial non-performance in the institutional context of judicial brotherhoods or even mafia-like structures declaring themselves to be untouchable due to their “constitutionally guaranteed” institutional independence. Extreme problems may unfortunately generate extreme reactions. But before censoring or praising either side, it is always essential to acquaint oneself with the genuine state of affairs on the ground. With respect to the judiciary and its non-reform, it would be useful for a number of international academics, who tend to publicly censure reform proposals on paper, to have a closer look at the genuine state of a number of judiciaries in the CEE. Perhaps they could go and try to get a case through one of those judicial systems. They could also acquaint themselves with persons in, and the style in which, the institutions they are about to fervently advocate for are in fact run. This is in no way a blind defense of problematic and often rather populist measures recently taken by a number of the CEE governments with respect to judges and the judiciary. It is rather a classical reminder that in any comparative study, understanding the context matters considerably. Finally, it should also be born in mind that with respect to already “hijacked” judicial councils in Slovakia as well as other CEE countries, time becomes of essence. Judicial councils in these countries were given considerable personal powers related to the promotion, salaries, and discipline of judges. Thus, potential dissenters within the judiciary

130 See, e.g., András Jakab, On the Legitimacy of a New Constitution - Remarks on the Occasion of the New Hungarian Basic Law of 2011, in CRISIS AND QUALITY OF DEMOCRACY IN EASTERN EUROPE 61 (MA Jovanović & Đorđe Pavićević eds., 2012); see also László Salamon, Debates Surrounding the Concepts of the New Constitution, 3 HUNGARIAN R. 1522 (2011).

131 Including the lowering of the compulsory retirement age for judges, which has been subsequently declared unconstitutional by the Hungarian Constitutional Court (Decision 33/2012. (VII. 17.)) AB, published also in the Magyar Közlöny 2012/95. The new law was also declared to be in violation of EU law. See Comm’n v. Hungary, CJEU Case C-286/12 (Nov. 6, 2012), ECLI:EU:C:2012:687.


are gradually weeded out (in disciplinary proceedings, by non-promotion, and various other tools of oppression), and, by definition, no potential dissenters are allowed to enter the judiciary. The councils, or rather to say the judicial bosses running them, control the appointment of new judges as well. Personal control is translated into a full “inbreeding” of the existent structures: Sub-optimal judges choose docile and sub-optimal judicial trainees as their “off-spring.” In even the least inventive scenario, judicial offices become de facto hereditary, with nepotistic family appointments of new judges becoming the rule. This evolution and this reality gives the final blow to suggestions that condemning judicial councils as an unsuitable institutional design for states in transition some ten or fifteen years after their establishment in these countries is premature and too rush. True, no institution is perfect in its beginnings. Its positive elements may show only with time, once the environment and the people in it have matured. However, such pious wishes are completely off point once the entire institution of the judicial council has not only been hijacked (which could be temporal), but the hijackers are also given the power to reproduce themselves, thus being able to impose themselves permanently and ensure their own continuation. One can always hope for positive changes in the future. However, due to flawed institutional design, these have been delayed for years; or more realistically, for decades. I. Conclusions The authors of this contribution are in favor of international standards and the European exchange of best practices. However, this paper and the case study concerning the spread of judicial councils in the New Europe, under the influence of European institutions outlined therein, unfortunately provided the textbook example of a case against international standards and best practices. The case study has shown that if unconstrained by a democratic process, negotiation and compromise-making with other branches of the government, the judiciary might be tempted to promote constitutionally separate, even insulated models of judicial administration. Such models evidence a strong favor for institutional independence of judges (or rather judicial leadership and the court presidents in particular), to the detriment of individual judicial independence and impartiality of judges. If politically unchecked, judicial wishes adopted on an international/European level are then put into various non-binding instruments, which are then de facto imposed onto even less politically stable systems. The effects might be problematic if not outright tragic. To be precise, there is no problem with judges meeting on the international level and making recommendations, devising best practices, and so on. Quite to the contrary, it is the people with expertise who should devise expert solutions. However, such outcomes must be made subject to democratic discussion and critical scrutiny by other actors on the international level itself; failing that, then on the national level. Democratic parliamentary


scrutiny might be available in only some environments, such as within the European Union, with directly elected European Parliament. At a minimum, executive scrutiny should be possible. In particular, national government representatives should be granted the voice in these matters so that they can critically examine the proposals adopted by judges in the transnational networks. Such critical review at different levels ought to be available under normal circumstances. The particular case of the exportation of the JC Euro-model to the New Europe in the EU pre-accession period demonstrated that sometimes, such scrutiny may get lost in the cracks of multi-layered international environments. In the old Member States, where such recommendations were indeed just recommendations—that is, international soft law—no one cared much. That was because this was something primarily concerned with reforms in the “East.”

132 Being well aware of strong political resistance, no one seriously thought of

imposing these standards on the old Member States. Such neglect might eventually backfire onto the old Member States, as international organizations now push them to adopt the same model.

133 In the new Member States, with political processes weakened,

there was not much serious democratic discussion that would not be quickly overridden by the all-powerful argument: “Europe wills it.” Thus, as this case study further demonstrated, the label “soft law” or “recommendations only” might be quite misleading with respect to a number of instruments adopted on the international level. As far as their capacity permits, other branches of government, national or supranational, would be well-advised to monitor soft law production very closely. The “soft” rules might become “hard” rules quite quickly. Finally, in view of the evidence emerging from the CEE countries, it is suggested that the Euro JC model is an unsuitable institutional design for countries in transition. Judicial councils should cease to be promoted as “the solution” to judicial reform in Europe and on the global scale. If adopting grand new institutions is not the best way forward for a judiciary in transition, what is? With respect to transition countries, we believe that cultural change and personal renewal must precede institutional changes. The “micro” independence, that is, the independence and impartiality of individual judges, must be established and guaranteed first, before any grand and irreversible steps towards more “macro” constitutional independence of the judicial power as such are taken. But this can in fact be achieved without a judicial council; or even, with tongue-in-cheek, especially if there is no judicial council, as a number of European countries demonstrate daily. Equally,

132 One can only speculate whether some “Western” judges, who have been active in various European organizations that gave birth to the JC model qua “European standard,” tried to implement this model in the “East” so that they could later use it as leverage in their home countries. See, e.g., STRENGTHEN THE JUDICIARY'S

INDEPENDENCE IN EUROPE! INTERNATIONAL RECOMMENDATIONS FOR AN INDEPENDENT JUDICIAL POWER (Peter-Alexis Albrecht & John Thomas eds., 2009) (containing contributions of several Western judges).

133 For instance, Germany has been recently criticized by the CoE for not having a judicial council. See sources cited supra note 13 and accompanying text.


with respect to individual judicial independence and performance, the “black sheep” of the CEE transition region, the Czech Republic, might be now and certainly will be in the nearest future much better off than Slovakia, the exemplary pupil of the JC Euro-model. Both countries, however, started from fairly similar settings with their negotiated break-up in 1993. Put differently, the JC model is unsuitable for countries in transition, where internal ethical culture and strong sense of judicial duty are still lacking. Yet the “do as you please” tactic may not be helpful either. What we suggest is, in the first years and decade or two of transition, to divert effort from large-scale institutional design to smaller scale reforms, particularly by putting emphasis on enhancing efficiency and transparency within the judiciary and on writ-small mechanisms. These steps may include, among other things, open and transparent procedures for appointment and promotion of judges within the existing system of judicial appointments; openness to middle and senior level judicial appointments to the candidates from outside the professional judiciary; education and formation of judges, including foreign languages and international experience; expanding auxiliary judicial staff in courts, thus unburdening judges from administrative duties; professionalism in case and court management; publication of all judicial decisions online; uploading biographies of judges on the website of the relevant court(s); providing real-time information about how each case file is handled; strictly random case assignment; and so on. Among all the avenues of smaller scale reforms mentioned, one clearly stands out in terms of importance: The issue of open, transparent and competitive access to the judicial profession. If a transition country is able to establish and maintain that, half the battle for judicial reform will have already been won. Unfortunately, the JC model as practiced in the CEE countries as well as in a number of Latin countries of its origin has precisely the opposite the tendency: Corporativism, mental closure, and even favoritism and nepotism in the selection of new judges, if done only by the judges themselves. The quality and performance of any judicial body selected in this way will always be highly questionable, to say the least. On a deeper level, it is apparent that our yardsticks for a successful judicial transformation are more rooted in the focus on the quintessential nature of judging: Independent and impartial decision-making in an individual case, delivered in a speedy way, and of a reasonable quality. For that, individual guarantees on a micro-level together with strong individual judges are essential. Unfortunately, what the Euro-model of judicial councils brings about in transition countries is strong institutional independence of the sum of judges; or rather, the complete lack of control over a few senior judicial officials, but little individual judicial independence and courage.

Developments

The Norwegian Supreme Court and Strasbourg: The Case of Lillo-Stenberg and Sæther v. Norway

By Arnfinn Bårdsen* A. Introduction This article attempts to give a brief overview as to the interplay between the Norwegian Supreme Court and the European Court of Human Rights in Strasbourg. I will do so partly on a general footing and partly connected to a couple of specific cases. In particular, I will comment on the 16 January 2014 judgment from the Strasbourg Court in the Case of Lillo-Stenberg and Sæther v. Norway.

1 This case involved an alleged violation of the right to

privacy according to Article 8 of the European Convention on Human Rights (ECHR), by publishing pictures from the wedding of a well-known couple—both performing artists—in a weekly magazine, without their consent. Allow me, however, first to mention that the Norwegian Supreme Court (Supreme Court) is a court of general jurisdiction—it deals with all types of cases, be they civil, criminal, or administrative in nature. The Supreme Court is also a constitutional court, under the duty to set a law aside in the particular case before it if the law—as applied in that case—is in conflict with the Constitution. The Norwegian Constitution, being 200 years old, is one of the oldest constitutions in the world still in function.

2 Originally it did not contain a full-fledged Bill of Rights. Thus, the

major developments in human rights law in Norway have up till now primarily been facilitated by international law, in particular by the ECHR. But, as part of its bicentennial anniversary in May 2014, the Constitution was amended, now including the classic civil and political rights that are prescribed for in the general human rights conventions, along with certain social, economical and cultural rights and the basic rights of the child. There can be no doubt that these new constitutional provisions ought to, and will be, interpreted and applied in light of their international origin. Moreover, the constitutional reform of 2014

* Arnfinn Bårdsen graduated from the University of Bergen in 1992. He was decorated Juris Doctor in 1999 and was an assistant and associate professor at the University of Bergen from 1993–2003, teaching constitutional law, international law, and procedural law. He was then Appeals Court judge and judge president from 2003–2008 and appointed as a justice to the Norwegian Supreme Court in 2008.

1 Lillo-Stenberg and Sæther v. Norway, ECHR App. No. 13258/09 (Jan. 16, 2014), http://hudoc.echr.coe.int/.

2 Kongeriket Norges Grunnlov [Grl], May, 17, 1814 (Nor.).


may facilitate a boost for a contemporary Norwegian constitutionalism. However, such questions are beyond the scope of this paper. B. The ECHR as Part of Domestic Norwegian Law Norway—like the other Nordic countries—belongs to the dualistic tradition, as opposed to the monistic. Consequently, international law—customary as well as treaty-based—is not as such the law of the land, unless it is incorporated into the domestic legal system by an act of Parliament. Accordingly, ratification of a human rights convention does not as such guarantee, at national level, individuals within the Norwegian jurisdiction the rights and freedoms established by that convention. In principle, the rights and freedoms have to be transposed into the domestic legislation in order to achieve full national effect. In line with this, Article 110c of the Norwegian Constitution (as amended in 1994) said that the detailed provisions as to the implementation of international human rights treaties should be prescribed for by ordinary parliamentary legislation. An imperative step was taken when the Norwegian Parliament adopted the Human Rights Act on 21 May 1999, thereby giving five named human rights conventions the position of Norwegian statutory law.

3 These are: (1) The European Convention on Human Rights

(1950); (2) the UN Covenant on Civil and Political Rights (1966); (3) the UN Covenant on Economic, Social and Cultural Rights (1966); (4) the UN Convention on the elimination of all forms of discrimination against women (1979); and (5) the UN Convention on the Rights of the Child (1989). These five conventions were chosen because of their practical impact, universal character, and, of course, political considerations. Article 3 of the Human Rights Act establishes that if there is a conflict between a provision in one of the enumerated conventions and any statutory provision adopted by Parliament or any other domestic legal rule, the treaty-provision shall prevail. Hence, the conventions acquired a sort of semi-constitutional status in Norwegian law. As part of the constitutional reform in May 2014, the Norwegian Parliament decided to replace the mentioned Article 110c of the Constitution, with a new Article 92, aiming at strengthening the position of convention-based human rights. This new provision states that every governmental body—including, of course, the Supreme Court—shall respect and secure all rights and freedoms stemming from any international human rights convention to which Norway is a party. Hence, the human rights conventions position as to being a part of domestic Norwegian law, and the supremacy of the rights and freedoms within those conventions, now have a clear-cut constitutional foundation.

3 Lov om styrking av menneskerettighetens stilling i norsk rett [Human Rights Act], May 21, 1999 (Nor.).

2014] Norwegian Supreme Court and Strasbourg 1295

Appeals to the Norwegian Supreme Court involving international human rights occur very often, particularly appeals regarding the ECHR. Such appeals are regularly granted leave to appeal by the Supreme Court Appeal Committee, unless they are clearly without merit. Normally this means that these cases are dealt with by a panel of five judges, based on an oral hearing. Human rights cases are even good candidates for qualifying for a grand chamber (eleven judges) or to be decided by the plenary court (in principle consisting of all twenty Supreme Court judges). The reason is that such appeals often raise issues of far-reaching legal or societal consequences, or they necessitate a balancing of rights and freedoms on one side and governmental needs and the wishes of the political majority on the other.

4 Sometimes there are even issues of national sovereignty at stake.

The Supreme Court, being a modern court of precedents, is aware of its chief position as to securing the rule of law and a loyal implementation of Norway’s obligations under international law. Thus, in a grand chamber judgment in 2009, the Supreme Court defined it as a key mission for the Court to deal with constitutional issues and cases involving Norway’s international obligations, in particular those stemming from the ECHR.

5

C. Strasbourg Case Law: Some General Observations Quite often there arises justifiable doubt as to how human rights conventions are to be understood and correctly applied. This may be so because, for example, many of the provisions are general and vague, or the application requires a balancing of different interests or values. In addition, we have the dynamic elements connected with interpretation and application of the different provisions. Case law from international supervisory bodies is an indispensable help in this regard. As to the ECHR—which is our primary concern here—I understand that we currently have approximately 20,000 judgments. This case law is—technically speaking—easily accessed through the European Court of Human Rights’ website—at the HUDOC database—which is free and has good facilities for conducting searches.

6 But, the volume of cases before the

Strasbourg court is overwhelming, causing a real challenge both for the European Court of Human Rights and for those applying the ECHR at the domestic level, inter alia the Supreme Courts and Constitutional Courts of each member state to the ECHR.

4 See, for example, the two cases reported in Rt. 2013 s. 1985 and Rt. 2012 s. 2039 regarding the extradition of minors. A translation into English can be found at the Norwegian Supreme Court’s website: http://www.domstol.no/en/Enkelt-domstol/-Norges-Hoyesterett/Summary-of-Recent-Supreme-Court-Decisions/Summary-2012/, case HR-2012-2398-P and HR-2012-2399-P.

5 Rt. 2009 s. 1118.

6 EUROPEAN COURT OF HUMAN RIGHTS, http://hudoc.echr.coe.int.


The ECHR itself has no provision regarding the impact of the Court´s case law on the interpretation and application of the ECHR. Looking at the Court´s own approach in practice, it becomes evident that the Court has not adopted a formal doctrine of binding precedent; however, the Court’s position has been that it must attach considerable weight to previous case law. The magical formula frequently used is the following: “While the Court is not formally bound to follow its previous judgments, it is in the interest of legal certainty, foreseeability and equality before the law that it should not depart without good reason from precedents laid down in previous cases.”

7 Regardless of how this is formulated

as a matter of principle, it is fair to say that case law is the most important source of interpretation and application of the ECHR, apart from the ECHR text itself. As to whether the case law in fact produces legal certainty, foreseeability, and equality, one should, in my opinion, keep in mind that not all judgments from the Court are crystal clear; rulings might be too vague or ambiguous to give any real guidance for domestic authorities, including the domestic courts. To this one must add, I believe, a certain lack of consistency among the forty-seven judges in the Court’s five sections, although the Court has established a bureau of internal experts—the Juristconsult’s office—that is continuously reviewing the Court’s case law, in order to prevent the Court from making any unintended deviation from established case law. My point here is not to criticize the Court. But there can be no doubt that any vagueness, ambiguity, or lack of consistency makes the application of the ECHR even more demanding and unpredictable at the national level. The Strasbourg Court is, of course, fully aware of these challenges, and seems to address them with greater effort than before. Case law serves not only as a vessel for certainty, foreseeability, and equality, but also as the tool used to keep the ECHR “alive,” allowing the European Court to ensure that the rights and freedoms are effective in practice, and that the ECHR mirrors present day needs. As is so often repeated by the Court itself, it is of crucial importance that the ECHR is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory: As a “living instrument,” the ECHR must be interpreted and applied in the light of the consensus and common values emerging from the practices of European States and specialized international instruments, as well as the evolution of norms and principles in international law through other developments.

8

For the national judge, it might be difficult to foresee the development of the law under the ECHR. This is especially so because there is typically a delay between the domestic court´s evaluation of the case and the judgment from the Strasbourg court. The case of Lillo-Stenberg and Sæther v. Norway may serve as an illustration. The Supreme Court gave

7 Jones and others v. United Kingdom, ECHR App. Nos. 34356/06 & 40528/06 (Jan. 14, 2014), para. 194, http://hudoc.echr.coe.int/.

8 See Opuz v. Turkey, ECHR App. No. 33401/02, para. 164 (Jun. 9, 2009), http://hudoc.echr.coe.int/.


its judgment in September 2008. The Strasbourg Court’s ruling came more than five years—and two clarifying grand chamber judgments—later, in January 2014. At this point, let me remind you that the European Court, for the first time ever, has taken the upper hand on its case load: At the end of 2013 the number of applications pending had decreased to 99,900, reduced by nearly 30,000 in that year alone. At the end of 2014 the figure will be approximately 75,000.

9 This is truly impressive; the current development

gives support to a certain hope that even the European Court of Human Rights will, in the future, not delay justice—as opposed to what has certainly been the case for quite some time now. The European Court of Human Rights has emphasized that the principle of subsidiarity forms the very basis of the Convention, stemming as it does from a joint reading of Articles 1 and 19.

10 Subsidiarity is apparently a principle of sequence; the Member States’ duty to

implement the ECHR is primary to the European Court’s review. But subsidiarity has a bearing on the scrutiny of review carried out by the European Court of Human Rights. It implies, inter alia that the Court will be cautious as to deviate from the facts found by the domestic courts, that the interpretation of domestic law is a matter for the national courts, and that the Court leaves the national authorities with a margin of appreciation as to the balancing of conflicting interests in the application of the ECHR. According to the Court’s well-established case law, this margin could vary, depending on the measures at hand, the actual right or freedom at stake and the level of European consensus on the matter. The margin is even a dynamic phenomenon, and will accordingly vary over time. The general character of the norms stemming from the ECHR has a bearing on subsidiarity, as it facilitates a certain leeway for the domestic courts: It is not entirely for the European Court of Human Rights to define the proper application of the ECHR. In the particular case before it, a domestic court must take national law and domestic legal traditions as a starting point and use that more specific body of law as a vessel for the implementation: Human rights are not a distinct area of the law, they permeate the legal system. D. The Impact of Strasbourg Case Law in Norway The Supreme Court’s current case law shows that human rights conventions shall, even when applied within the Norwegian legal system, be interpreted according to the methods used by the international supervisory organs. Thus, it is not only the convention texts that are integrated to Norwegian law, but also the methods of interpretation. This implies, inter alia, that, in general, case law from the international supervisory organs becomes an

9 Detailed statistics of the Court can be found at the Court’s website: http://www.echr.coe.int/Pages/home.aspx?p=reports&c=#n1347956867932_pointer.

10 See Austin v. United Kingdom, ECHR App. Nos. 39692/09, 40713/09, & 41008/09 (Mar. 15, 2012), http://hudoc.echr.coe.int/.


integral part of Norwegian law. This, of course, includes the massive body of case law produced by the European Court of Human Rights. The Norwegian courts are expected to make the same use of this case law as the European Court of Human Rights. Although there certainly are different kinds of nuances that could be added, this methodological starting point seems now undisputed. Two more general modifications must, however, be made as to the Supreme Court’s line of reasoning in regard to its relationship with the Strasbourg Court. First, as a starting point, the Supreme Court leaves the dynamic development of the conventions to the international supervisory bodies, inter alia the Strasbourg Court. Second, to the extent that the ECHR prescribes a margin of appreciation to the member states, the Supreme Court sees it as its task to make this margin operational. At this stage, I believe it is suitable to refer to some quite informative passages from a plenary judgment from 2000. Here, the Supreme Court stated:

Although the Norwegian courts apply the same principles of interpretation as the European Court of Human Rights when applying the ECHR, the task of developing the Convention lies first and foremost with the European Court. . . . The Norwegian courts do not have the same overview as the European Court of the legislation, interpretations of law and legal practice in other European countries. However, by balancing different interests or values based on the value priorities upon which Norwegian legislation and interpretations of law are based, the Norwegian courts interact with the European Court and contribute to influencing its practice. If the Norwegian courts were equally as dynamic as the European Court in their interpretation of the Convention, the Norwegian courts would risk going further than required by the Convention in individual cases. This could be unnecessary restraint on the Norwegian legislator, and could be detrimental to the balance between the legislative and judicial powers upon which the structure of state in Norway is built.

11

11 Rt. 2000 s. 996.


This statement has been referred to in several later judgments from the Supreme Court.12

I believe that it is still valid as a general description of the Supreme Court’s approach. However, it should be borne in mind that the Norwegian Supreme Court today—ten to fifteen years later—is even more at home with the law stemming from the ECHR, and that the Court’s view of itself as a constitutional court has been, and will be, developing. These two factors, coupled with the current accentuation of the principle of subsidiarity in the Strasbourg system, are likely to support a more partner-like relationship with the European Court of Human Rights. It is undisputed that the case law from the European Court of Human Rights during the last twenty years has become an integrated and important source of law in Norway. It has contributed both direction and momentum to domestic legal development, and has inspired what to my mind must be considered a fruitful vitalization of the Norwegian legal system. I cannot give any exact numbers, but I am sure that apart from the Supreme Court’s own case law, the Strasbourg case law is by far the most cited in the Supreme Court´s judgments and decisions. One may see the actual impact on the case law of the Supreme Court within a very wide range of subject matters—family law, the right to privacy, freedom of religion and freedom of expression, the protection of property, and fair trial guarantees, to mention the most important areas. Particularly striking are the examples from criminal procedure. As to judicial review, the scrutiny is far more intensive than before, regularly including even the test of proportionality. Even more important is, to my mind, that the very essence of the judicial craftsmanship has been developed and refined under this influence of the European law: The European integration brings the highest courts in Europe together in a common legal universe, enabling an interchange of experiences and practices that, in the longer run, cannot but inspire. On 25

April 2013, the Supreme Court made its ruling in what must be considered one of

the most important cases on human rights protection in Norway for many years.13

A and B were lovers for a short period back in 1998. A had a drinking problem and limited control over his temper. One night he attacked B, beating her and threatening her with a knife. He was arrested, and later convicted for the offense and banned from having any kind of contact with B. After serving the sentence he broke the restraining order on a number of occasions and subjected B to threatening and frightening persecution which resembled mental harassment and terror for an extended period of time. It was a classic

12 See, e.g., Rt. 2005 s. 833.

13 Rt. 2013 s. 588. A translation into English can be found at the Norwegian Supreme Court’s website: http://www.domstol.no/en/Enkelt-domstol/-Norges-Hoyesterett/Summary-of-Recent-Supreme-Court-Decisions/Summary-of-Supreme-Court-Decisions-2013/, case HR-2013-881-A.


case of hostile stalking, with devastating consequences for the health and life of B. In 2001 the situation for her got so bad that she decided to move—together with her four children—to another part of the country to go into hiding from A. Before the courts, B claimed that the police did not provide adequate and effective protection against A, and by this did not secure her rights according to Articles 3 or 8 of the ECHR. A core issue in the case was to what extent the authorities must act in order to protect individuals within their jurisdiction against attacks from other individuals. The Supreme Court concluded that the State had not fulfilled its obligation under the ECHR to protect B from persecution from A, and that the State therefore was liable to pay damages to B. The acts of the perpetrator undisputedly fell under Article 8 of the ECHR. The Supreme Court left the question as to whether the acts also fell under Article 3 open. As to liability, the Court attributed decisive importance to the fact that the police’s follow-up of the continued violations of the restraining order was highly inadequate, and also to the fact that two potentially very serious threats were not investigated in any detail. Thus, the State’s liability was based directly on the ECHR and on the conclusion that B was not afforded reasonable, adequate, and effective protection against what had to be considered a real, immediate, and serious risk that was actually known to the police. The Supreme Court’s approach in the case is well in line with contemporary international human rights law as to the scope of the State’s duty to protect and secure the rights and freedoms of everyone within that State’s jurisdiction, if need be even by taking active steps to prevent private individuals from violating each other’s rights. In particular, this approach fits well with the current international trend as to the need to effectively protect women and children against domestic violence.

14

E. The Case of Lillo-Stenberg and Sæther v. Norway I now turn to the case of Lillo-Stenberg and Sæther v. Norway from 16

January 2014.

15

Without a doubt, the contested violation of the right to privacy according to Article 8 of the ECHR is of a more romantic and glamorous nature than in the 2013 Supreme Court case regarding A and B discussed above. In Norway, Mr. Lillo-Stenberg is a well-known musician and artist. Mrs. Sæther is a prolific actress. They complained to the courts about press invasion of their privacy during their wedding on 20

August 2005. The wedding took place outdoors on an islet in the Oslo fjord

accessible to the public. Without the couple’s consent, the weekly magazine Se og Hør—

14 See Opuz v. Turkey, ECHR App. No. 33401/02 (June 9, 2009) at para. 164.

15 Lillo-Stenberg and Sæther v. Norway, ECHR App. No. 13258/09 (Jan. 16, 2014).


translated “Watch and Listen”—subsequently published a two page article about the wedding accompanied by six photographs. They showed the bride, her father, and the bridesmaids arriving at the islet in a small rowboat, the bride being brought to the groom by her father, and the bride and groom returning to the mainland on foot by crossing the water on stepping-stones. The article described the ceremony, the applicants, and some of the guests. It stated, inter alia, that the ceremony was touching; that several guests could not hold back their tears when the bride arrived at the islet and a male voice choir started singing a Norwegian song, whose title could be translated “To live is to love”; and that a party took place after the ceremony in the garden of a named guest house. It also stated that the applicants’ manager had informed the magazine that the applicants did not wish to comment on their wedding. The couple brought compensation proceedings against the magazine and won in the first two instances. However, on 2

September 2008, a three-judge majority of the Norwegian

Supreme Court found against the couple. I was one of these three judges, so in this sense I am a bit biased. The majority of the Supreme Court emphasized that the well-known couple had chosen to get married in a place that was generally accessible to the public, that the event was spectacular in the way it was arranged, that no photos of the actual wedding ceremony were published, that the photos were taken from a long distance, that there was no breach of confidence, and that the article was neither offensive nor negative. The two-judge minority in the Supreme Court found that the article had no public interest, and that taking and publishing pictures of the event without the couple’s consent was unlawful. Relying on Article 8 of the ECHR, the applicants complained to the European Court of Human Rights that their right to respect for private life had been breached by the Supreme Court’s judgment. In particular, the applicants alleged that the article in question “clearly had a purely entertainment value” and the article did not “contribute to a debate of general interest.” The applicants emphasized that the use of a zoom lens enabled the journalist and the photographer to take close-up photographs of the bridal couple and their guests that made it look as if they were actually at the event themselves, when in fact they were hidden from those who were being observed. The Norwegian Government submitted that the Supreme Court, in its judgment of 2

September 2008, had carried out a balancing test that was in full conformity with the criteria laid down in the Strasbourg Court’s case law, as summarized and clarified in the


recent Grand Chamber judgments Axel Springer AG v. Germany and Von Hannover v. Germany (No. 2).

16 The Government pointed out that in such a situation the Member

States should be afforded a wide margin of appreciation and that the Court should require strong reasons to substitute its view for that of the domestic courts. Such an approach would be fully in line with strengthening the principle of subsidiarity. In the Strasbourg Court’s judgment the Court’s general approach to Articles 8 and 10 of the ECHR is a blueprint of its approach in Van Hannover v. Germany (No. 2). Moreover, even as to the balance to be struck between private life under Article 8 and freedom of expression under Article 10, the Court referred to what it said in Von Hannover v. Germany (No. 2) and Axel Springer AG v. Germany as to the Contracting States’ margin of appreciation and the Court’s own role in the subsequent review. The relevant paragraphs of the latter judgment read as follows:

85. The Court reiterates that, under Article 10 of the Convention, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression guaranteed under that provision is necessary . . . . 86. However, this margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court . . . . In exercising its supervisory function, the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on . . . . 87. In cases such as the present one the Court considers that the outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher who has published the offending article or under Article 8 of the Convention by the person who was the subject of that article. Indeed, as a matter of principle these rights deserve

16 Axel Springer AG v. Germany, ECHR App. No. 39954/08 (Feb. 12, 2012), http://hudoc.echr.coe.int/; Van Hannover v. Germany (No. 2), ECHR App. Nos. 40660/08 & 60641/08 (Feb. 7, 2012), http://hudoc.echr.coe.int/.


equal respect . . . . Accordingly, the margin of appreciation should in principle be the same in both cases. 88. Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts . . . .

17

As to the operative criteria in this balancing, the Strasbourg Court again referred to the judgments in Von Hannover v. Germany (No. 2) and Axel Springer AG v. Germany, establishing these five key elements in the overall assessment:

(i) [C]ontribution to a debate of general interest; (ii) how well known is the person concerned and

what is the subject of the report?; (iii) prior conduct of the person concerned; (iv) method of obtaining the information and its

veracity/circumstances in which the photographs were taken; and

(v) content, form and consequences of the publication.

18

As to the first criterion, the Strasbourg Court pointed out that what constitutes a subject of general interest will depend on the circumstances of the case. The Court nevertheless emphasized that such an interest exists not only where the publication concerns political issues or crimes, but also where it concerns sporting issues or performing artists. The criterion regarding how well known the person is and the subject of the report is related to the criterion of general interest. In the present case, the applicants had no public community functions but they were well known performing artists, and accordingly public figures. The article and the photographs concerned their wedding. In this respect the Norwegian Supreme Court had stated:

A wedding is a very personal act. At the same time it also has a public side. A wedding is a public affirmation that two persons intend to live together, and has legal

17 Lillo-Stenberg and Sæther v. Norway, ECHR App. No. 13258/09 at para. 33 (quoting Axel Springer AG v. Germany, ECHR App. No. 39954/08 at paras. 85–88).

18 Id. at para. 34.


consequences in many different sectors of society. Thus information about a wedding does not in itself involve a violation of privacy if it is given in a neutral form and based on a reliable source.

19

Hence, although not stating that the article constituted a subject of general interest, the Supreme Court did emphasize that a wedding has a public side. The Strasbourg Court agreed. As to the method of obtaining the information, its veracity, the circumstances in which the photographs were taken, their content, their form, and the consequences of the publication, the Strasbourg Court refers in the judgment to the details in the reasoning from the majority in the Norwegian Supreme Court, inter alia, that neither the text nor the photographs in the disputed magazine article contained anything unfavorable to the applicants, and that there were no photographs of the actual marriage ceremony. Moreover, the wedding was organized in a very extraordinary way, for example with the arrival of the bride in an open boat and the presence of a men’s choir singing a hymn on the islet. Because the ceremony took place in an area that was accessible to the public, easily visible, and at a popular holiday location, it was likely to attract attention by third parties. Hence, the applicants were neither in a place nor in a situation where they could reasonably expect to be left alone without getting attention from others. The Strasbourg Court then concluded by stating:

44. In the opinion of the Court, both the majority and the minority of the Norwegian Supreme Court carefully balanced the right of freedom of expression with the right to respect for private life, and explicitly took into account the criteria set out in the Court’s case-law which existed at the relevant time. In addition, de facto, the Supreme Court assessed all the criteria identified and developed in the subsequent case-law . . . . The Court therefore finds reason to point out that, although opinions may differ on the outcome of a judgment, “where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts . . . .

19 Id. at para. 13 (quoting Rt. 2008 s. 533 para. 40).


45. In these circumstances, and having regard to the margin of appreciation enjoyed by the national courts when balancing competing interests, the Court concludes that the Supreme Court did not fail to comply with its obligations under Article 8 of the Convention . . . .

20

This deference to the evaluation and balancing carried out by the Supreme Courts, demonstrates subsidiarity in action. And the lesson to be learned from the Strasbourg Court´s approach in Lillo-Stenberg v. Norway is that the doctrines of the margin of appreciation and of subsidiarity have proven themselves operative in the troubled balancing of press freedom with private life, in line with what was already established in Von Hannover v. Germany (no. 2) and Axel Springer AG. v. Germany. However—and this is the essential issue—it seems to be a precondition that the Strasbourg Court is convinced that the national court actually has carried out a loyal and careful consideration under the ECHR, in accordance with—at least in substance—established Strasbourg case law. Hence, this is the challenge to the domestic courts: To seize this opportunity for judicial dialogue by writing judgments in a manner that convincingly demonstrates that such considerations have actually been carried out at the domestic level, thereby eliminating the need for a subsequent autonomous balancing at the international level.

20 Id. at paras. 44–45.

Articles

Reform of International Organizations By Stephen Bouwhuis* Abstract While the creation of a new international organization is often met with great fanfare, less focus is accorded to the systematic challenges that inhibit reform of international organizations. This article discusses these challenges as well as the enablers that may be useful in addressing them. Introduction The decades following the Second World War were a time of much optimism which was in part reflected in efforts to reshape the international order through the creation of new international organizations.1 Less focus was, however, placed on how to keep such organizations working, or indeed how to make them work effectively. Perhaps the only real exception is the United Nations, although even that literature is not particularly focused on the systematic challenges inhibiting reform or the enablers of reform. Indeed, international organizations have been permitted to trundle along, in some cases quite ineffectively, because of the legally cumbersome mechanisms for abolishing international organizations and the difficulties in achieving the necessary momentum for reform amongst States. Evidence of performance issues has emerged in various studies, such as those conducted by Roland Vaubel et al., which found that: Input quantities and costs were not related to the size of the work assigned to particular international organizations, and input quantities and costs were often determined by factors other than the work itself.2 Evidence has also emerged from studies conducted by aid agencies, such as the Multilateral Aid * Assistant Secretary, Attorney-General’s Department of Australia. I would like to thank Christopher Wilkinson, Emma Dunlop, Gabrielle Simm, Georgia Harley, Stephen Cutts, and Sonja Litz for comments on a previous version of the paper. The views expressed are those of the author and do not necessarily reflect those of current or past employers. Contact Details: [email protected].

1 Interestingly, the late 1990s actually saw a decrease in the number of international organizations after the growth in the absolute numbers of international organizations which followed the Second World War. See Jon Pevehouse, Timothy Nordstrom & Kevin Warnke, International Governmental Organizations, in THE POLITICS OF GLOBAL GOVERNANCE: INTERNATIONAL ORGANIZATIONS IN AN INTERDEPENDENT WORLD 9, 11 (Paul F. Diehl ed., 3rd ed. 2005).

2 Roland Vaubel, Axel Dreher & Uğurlu Soylu, Staff Growth in International Organizations: A Principal-agent Problem? An Empirical Analysis, 133 PUB. CHOICE 275, 276–77 (2007).


Review by the United Kingdom, which assessed a wide range of international organizations and placed them on a spectrum from “very good” to “poor.”3 Accordingly, this article analyzes a number of key challenges in reforming an international organization. These challenges are discussed under four headings: (A) The Difficulties in Generating Momentum; (B) The Lack of Well-Defined Performance Measures; (C) Entrenched Interests; and (D) Legally Cumbersome Mechanisms for Abolition of International Organizations. This article then examines (E) The Drivers of Reform; before concluding with general observations. A. The Difficulties in Generating Momentum Reform of an international organization is likely to be a long and painful task. The situation is very different than reform within the private sector, where a Chief Executive or a Board of Directors can decide that the profits do not warrant an organization continuing, or where there is a stock market to make that judgment. The immediate stakeholders of international organizations are governments and bureaucrats employed by them; parties who, like the general public, may be more focused on issues surrounding the creation of new organizations than the work of reforming existing organizations. Government decision-makers must also calculate whether the time and effort required to garner the support of other States for changes will outweigh other opportunities to which this time and effort could otherwise be dedicated.4 Additionally, because many governments operate rotation systems in their foreign ministries, it is unlikely that the official who begins the task of reforming the international organization is the same person who finishes the process. Hence, from a bureaucratic perspective, there may be a low incentive to start a process that is unlikely to be fruitful and for which someone else is likely to take the credit. Further, even if all States agree on reform and the form it should take, politics may cause some States to demand concessions in other areas and, absent such concessions, stall the reform. Additionally, some governments may not be interested in reform. Strong international organizations could serve as a platform for demanding action from States, which may be a concern to governments that feel they may be on the receiving end of such demands. For example, a government without a particularly strong human rights record may not be in favor of a well-functioning international human rights system that may be critical of its policies.

3 DEP’T. INT’L. DEV., MULTILATERAL AID REVIEW: ENSURING MAXIMUM VALUE FOR MONEY FOR UK AID THROUGH MULTILATERAL ORGANIZATIONS (2011), https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/67583/multilateral_aid_review.pdf.

4 See, e.g., Roland Vaubel, Principal-agent Problems in International Organizations, 1 REV. INT’L. ORGS. 125, 132 (2006).

2014] Reform of International Organizations 1309 Interestingly, there is evidence demonstrating that a key determiner of reform can be the presence of a dominant funder, with the motivation and influence to drive reform.5 This is largely due to the reality that where the membership is diffuse there is less political pressure to act, and acting is more difficult because there are more States to persuade of the need for action.6 As summed up by Joel Oestreich, “A large number of principals, or principals that differ substantially on their policy preferences, can be exploited by agents in order to follow preferred policies.”7 B. The Lack of Well-Defined Performance Measures Another factor inhibiting the reform of international organizations is a general lack of well-defined performance measures. John Mathiason speculates that this may partially reflect the level at which some international organizations target their interventions:

Whilst the problem of accountability for results is common to all organizations, private or public, it is particularly difficult for international organizations. This is largely because international organizations usually deliver their services indirectly, in contrast to national administration. And, like most national governments, international organizations have no “bottom line” like private sector organizations. There are no clear monetary indicators of results, like profit of loss, or changes in revenue flows. Instead, international organizations seek to influence or support beneficiary States and populations within them in their programmes. Here, international organizations also differ from national administrations. For the latter, services are delivered that can be measures [sic], in terms of number of customers served, number of miles of new roads, or extent to which diseases are eradicated.8

5 Vaubel, supra note 2, at 279 (noting the article does exclude international organizations which did not expand, which would have provided a more complete data set).

6 Vaubel, supra note 2, at 277. 7 Joel E. Oestreich, Introduction, in INTERNATIONAL ORGANIZATIONS AS SELF-DIRECTED ACTORS: A FRAMEWORK FOR ANALYSIS, 1, 7 (Joel Oestreich ed., 2012); see also Susan Park & Catherine Weaver, The Anatomy of Autonomy: The Case of the World Bank, in INTERNATIONAL ORGANIZATIONS AS SELF-DIRECTED ACTORS: A FRAMEWORK FOR ANALYSIS 91, 94–95 (Joel Oestreich ed., 2012).

8 John Mathiason, Who Controls the Machine, III: Accountability in the Results-Based Resolution, 24 PUB. ADMIN. & DEV. 61, 65 (2004).


However, international organizations today are often involved in measurable services. For example, the World Food Program can measure the food delivered as an output and the ability of households and communities to meet their food needs as an outcome. The Global Alliance for Vaccines and Immunization can measure vaccines delivered as an output and wider heath impacts, such as reduced mortality, as outcomes. Additionally, existing performance measures often lack rigor and are not linked to resource allocation.9 For example, in reviewing the application of results-based management at the United Nations, the United Nations’ Office of Internal Oversight Services concluded “that results-based management has been an administrative chore of little value to accountability and decision-making”10 and in particular that:

Although aspirational results are utilized to justify approval of budgets, the actual attainment or non-attainment of results is of no discernible consequence to substantive resource allocation or other decision-making. Financial and programmatic records do not compare. Reporting on results does not feed into the budgeting calendar.11

Despite such difficulties, States have increasingly pushed international organizations in this direction, as they also face tighter budgetary pressures and hence are demanding better results from their contributions. In particular, the United Kingdom has developed the Multilateral Aid Review,12 which provides a comparative assessment of the performance of international organizations against a number of detailed criteria, including:

(5) a results culture and a comprehensive results framework, an evaluation culture with independent evaluations whose recommendations are acted on and high quality human resources management

9 U.N. General Assembly, Review of results-based management at the United Nations: Rep. of the Office of Internal Oversight Services, paras. 33–34 U.N. Doc. A/63/268 (Sep. 22, 2008) (stating that results-based management requires clarity in the use of information in the a priori formulation and ex post facto assessment of programs); see also Trevor Findlay, Unleashing the Nuclear Watchdog: Strengthening and Reform of the IAEA 94 (2012) (analyzing reform efforts at the International Atomic Energy Agency and finding that “governments have not used performance data to evaluate proposed plans and budgets”).

10 See U.N. General Assembly, supra note 9, para. 46. 11 See U.N. General Assembly, supra note 9, at 2.

12 DEP’T. INT’L. DEV., supra note 3.

2014] Reform of International Organizations 1311

systems, with transparent and merit-based recruitment and promotion, and performance-based management systems; (6) clear and transparent resource allocation decisions, predictable long-term commitments, release of aid on schedule, flexibility to use a range of different aid instruments according to need, strong policies and processes for financial accountability and oversight, and a proactive approach to managing poorly performing projects, curtailing them where necessary and redeploying the funding elsewhere; (7) management and accountability systems with a strong focus on achieving value for money in programme spend, including challenging and supporting partners to take a hard look at value for money in their policy and programme choices; (9) a culture of openness and compliance with the standards set by the International Aid Transparency Initiative, IATI, a genuine voice for developing countries, and an effective right of redress for complaints; and (10) The likelihood that senior management and the governing body will strive for continued improvement/proactively use opportunities to initiate reform; a clear mandate and strategy, effective leadership and governance structures . . . .13

Indeed, the Government of the United Kingdom has gone further and linked the performance of international organizations to the level of funding which the United Kingdom is prepared to offer. In particular, the Government of the United Kingdom provides additional funding to organizations that it rates as good value and reduces or ends funding to international organizations that it rates poorly.14 Such an approach addresses the concerns raised by United Nations’ Office of Internal Oversight Services: That the collection of data on performance must also feed back into decisions on resource allocation in order to be meaningful.15 The government of the United Kingdom has also worked with other governments, such as Australia, the Netherlands, and Sweden, who have initiated their own

13 See DEP’T. INT’L. DEV., supra note 3, at app. 1 at 112–29. (noting that criteria were taken from the actual surveys provided to multilateral organizations as part of the 2011 Multilateral Aid Review). 14 DEP’T. INT’L. DEV., supra note 3.

15 U.N. General Assembly, supra note 9, at 2.


surveys.16 Indeed, the United Kingdom is working to develop shared assessments with other countries in order to “minimise burdens on multilateral organisations and maximise the incentives for organizations to reform.”17 As summarized by one witness before the Committee of Public Accounts in the United Kingdom:

It seems to me implausible that the system can work effectively if we do not have some kind of exit process. As we introduce new organisations and fund the most successful ones, we need some mechanism for shutting down ineffective organisations.18

The Government of the United Kingdom has been urged to go further and consider wider systematic issues of “coherence, gaps, and overlaps in roles.”19 Some international organizations have supported such efforts and have been working to develop their own metrics. A particularly notable example is the World Bank’s Corporate Scorecard, which contains a range of performance indicators such as “satisfactory completion of country strategies,” “client feedback on [World Bank] effectiveness and impact on results,” “managerial effectiveness,” and “resolved registered grievances.”20 Conversely, other organizations have at times been remarkably resistant to such measures.21 Indeed, even when international 16 See HOUSE OF COMMONS COMMITTEE OF PUBLIC ACCOUNTS, THE DEPARTMENT FOR INTERNATIONAL DEVELOPMENT: THE MULTILATERAL AID REVIEW Ev 2 (2013), http://www.publications.parliament.uk/pa/cm201213/cmselect/cmpubacc/660/660.pdf (noting that Australia, the Netherlands, and Sweden have all conducted their own review, and “[t]hey are all pursuing exactly the same idea, which is that we should be much more systematic about looking at multilaterals and deciding which are the most effective, and how we should channel it”).

17 See id. at 5 (explaining how “[t]he Department’s Review has encouraged other donor countries, such as Australia and Denmark, to conduct similar assessments”).

18 Id. at Ev 5; see also id. at Ev 9 (“We think it would be a good idea if more of these organisations were sunsetted . . . . [but] that works only if lots of the members are willing to leave, so we are a bit constrained in how far we can get that psychology into things.”). 19 COMPTROLLER AND AUDITOR GENERAL, DEPARTMENT FOR INTERNATIONAL DEVELOPMENT, THE MULTILATERAL AID REVIEW 8, para. 16 (2012), http://www.nao.org.uk/wp-content/uploads/2012/09/1213594.pdf; see also HOUSE OF COMMONS COMMITTEE OF PUBLIC ACCOUNTS, supra note 16, at 5 (“Before its next full Review in 2015, the Department should refine its framework to better reflect all types of multilateral organisation and it should map the roles of multilateral organisations, highlighting gaps, overlaps and linkages, to enable informed decisions on who can best deliver the Department’s objectives.”).

20 Corporate Scorecards, WORLD BANK GROUP 12–13 (2014), http://documents.worldbank.org/curated/en/2014/10/20275677/world-bank-group-world-bank-corporate-scorecard-october-2014. 21 For example, at the time the International Criminal Tribunal for Former Yugoslavia rejected as unnecessary a suggestion by the Office of Internal Oversight Services of the United Nations for the Tribunal to develop effective management information that systematically collates critical performance measures. See INTERNAL AUDIT DIV., OFFICE OF INTERNAL OVERSIGHT SERVICES, ICTY COMPLETION

2014] Reform of International Organizations 1313 organizations have adopted performance measures, they have not necessarily been standardized or prioritized.22 Further, those performance measures that do exist are often expressed in terms of activities and outputs, rather than outcomes.23 C. Entrenched Interests A number of other challenges arise due to the competing interests of staff within these organizations and those charged with governing them. In particular, change must also be analyzed in terms of who might gain or lose influence following reforms.24 Those who work in international organizations, and those who benefit from the work of international organizations, have an incentive to oversell their work. Perversely, the more inefficient an organization, the higher the motivation to support the organization because those benefitting from its existence know that if the particular work program of the organization that benefits them is abolished then it is unlikely to be replaced. This is particularly so if there is misdirected spending—spending that benefits those who are not meant to be benefited. Others may attempt to fend off reform measures that could restrict their freedom of action. Conversely, some employees may also see “reform” as an opportunity for expansion through the creation of new posts, or the elevation of existing ones, in order to assist new roles. The government employees charged with overseeing such organizations may also have an interest in the matter. Their own nationals are most likely employed by such organizations. Additionally, even government employees may feel some level of attachment to the organization that they oversee. For both employees in international organizations and those overseeing international organizations, there might also be a tendency to indirectly enhance their own importance by overselling the value of their work.

STRATEGY paras. 17–18 (2008) (stating that the registry did not have efficient data to make such management decisions at the time).

22 See, e.g., U.N. General Assembly, supra note 9, at para. 45 (“Results-based management at the United Nations has been an administrative chore of little value to accountability and decision-making . . . .”).

23 See id. (describing the measurements of achievement utilized by the United Nations Secretariat).

24 See Edward C. Luck, Reforming the United Nations: Lessons from a History of Progress, in THE POLITICS OF GLOBAL GOVERNANCE: INTERNATIONAL ORGANIZATIONS IN AN INTERDEPENDENT WORLD 445, 449–50 (Paul F. Diehl ed., Lynne Rienner Publishers 3d ed. 2005) (“To put it crudely, much of the reform debate, at its basest level, is a struggle over political turf, over who is perceived to gain or lose influence within the Organization if the proposed changes are enacted or implemented.”).


D. Cumbersome Mechanisms to Abolish While a press release announcing the creation of an international organization can be drafted in a matter of minutes, the establishment and any eventual abolition of an international organization usually takes years, often decades.25 The most common mechanism for creating an international organization is through an international treaty,26 which typically requires numerous international negotiating rounds to agree on the fundamental nature and shape of the organization. The new treaty then requires ratification by States and the newly established organization must then set up a physical office, establish staffing rules, and recruit its core personnel, who in turn engage in an international recruitment exercise to staff the organization. Abolishing an international organization involves many the same steps, but in reverse. The staff members involved in such a process typically lack the enthusiasm present when starting a new organization. Rather, the staff often despair at the loss of their aspirations for both the organization and their careers. They also face an uncertain return to the job market. Hence, staff retention is a common problem.27 In addition to the difficulties in retaining staff, problems are also likely to arise due to the legal nature of international organizations. In particular, most are organized

25 The processes involved in abolishing the International Criminal Tribunals for former Yugoslavia and Rwanda provide examples in this regard. See generally Dominic Raab, Evaluating the ICTY and its Completion Strategy: Efforts to Achieve Accountability for War Crimes and Their Tribunals 3 J. INT’L CRIM. L. 82 (2005); Laura Bingham, Strategy or Process-Closing the International Criminal Tribunals for the Former Yugoslavia and Rwanda 24 BERKLEY J. INT’L L. 687 (2012). The collapse of the International Tin Council also demonstrates this. See generally Llona Cheyne, Current Developments: International Law, International Tin Council 39 INT’L & COMP. L.Q. 945 (1990); Carsten Thomas Ebenroth, Shareholders’ Liability in International Organizations—the Settlement of the International Tin Council Case 4 LEIDEN J. INT’L L. 171 (1991); Romana Sadurska & Christine Chinkin, The Collapse of the International Tin Council: A Case of State Responsibility? 30 VA. J. INT’L L. 841 (1990).

26 See Rep. of the Int’l Law Comm’n, 63d Sess., April 26–June 3, July 4–Aug. 12, 2011, U.N. Doc. A/66/10; GAOR, 66th Sess., Supp. No. 10, at 52, 73 (2011) (defining an international organization as “an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality”). 27 See President Theodor Meron, Remarks to the U.N. Security Council (June 7, 2012), available at http://www.icty.org/x/file/Press/Statements%20and%20Speeches/President/120607_pdt_meron_un_sc_en.pdf (“Highly experienced and valued staff continue to leave the Tribunal in increasing numbers, and the Tribunal has made little progress in securing support for the different staff retention measures that it has presented to the United Nations over more than half a decade.”); see also Ruth Frolich, Introductory Note to the United Nations Security Council Resolution 1966: International Residual Mechanism for ICTY and ICTR, 50 INT’L LEGAL MATERIALS 323, 325 n.5 (2011) (“Both tribunals . . . are losing their staff rapidly. In fact, staff retention has turned out to be one of the biggest problems associated with the Completion Strategy, making it all the more difficult to meet its goals.”).

2014] Reform of International Organizations 1315 under treaties which do not explicitly provide for their own dissolution.28 In these circumstances, the organization could be abolished through an amendment to the founding treaty to provide for such a process, or through an agreement of its Member States.29 The latter could be expressed by a resolution of the governing body of the international organization.30 One would normally expect such a resolution to require the unanimous support of its membership.31 However, the League of Nations, which was abolished by a resolution of its governing body in which not every Member State participated in the vote, established a more flexible precedent.32 Alternatively, the constitutive instrument of a new organization could provide for the dissolution of a former organization, which is composed of a similar membership of States.33 Even without such an express provision, however, the functions of the former organization would be considered terminated if the subsequent organization consists of the same Member States and the functions of the latter organization are inconsistent with the former.34 A more practical means of effectively abolishing an international organization is to pass a resolution providing the organization with a

28 See C.F. AMERASINGHE, PRINCIPLES OF THE INSTITUTIONAL LAW OF INTERNATIONAL ORGANIZATIONS 466 (2d ed. 2005) (“The constitution of most organizations, including the UN and the majority of the specialized agencies of the UN, do not have provisions on dissolution, probably because they were intended to continue in existence indefinitely.”); HENRY G. SCHERMERS & NIELS M. BLOKKER, INTERNATIONAL INSTITUTIONAL LAW 1049, § 1629 (5th ed. 2011).

29 See also AMERASINGHE, supra note 28, at 467 (explaining that this second alternative means of dissolution is possible because “treaties, including multilateral treaties, can be terminated or changed by agreement of all the parties”); SCHERMERS & BLOKKER, supra note 28, at 1057, § 1641. 30 See AMERASINGHE, supra note 28, at 468 (“[T]here is good evidence that there is a general principle of international institutional law that an organization may be dissolved by the decision of its highest representative body (the general congress), when there are no provisions governing dissolution.”); see also SCHERMERS & BLOKKER, supra note 28, at 1053–54, § 1637.

31 See Vienna Convention on the Law of Treaties art. 54(b), May 23, 1969, 1155 U.N.T.S. 331 (“The termination of a treaty or the withdrawal of a party may take place: (a) In conformity with the provisions of the treaty; or (b) At any time by consent of all the parties after consultation with the other contracting States.”); see also SCHERMERS & BLOKKER, supra note 28, at 1051, § 1633.

32 See AMERASINGHE, supra note 28, at 468–69 (noting that the decision to dissolve was unanimous, but only thirty-five of the total forty-five members were present at the meeting, and the absent members did not protest to this decision later); SCHERMERS & BLOKKER, supra note 28, at 1051, § 1633.

33 See Vienna Convention art 30(2) (“When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.”); see also SCHERMERS & BLOKKER, supra note 28, at 1050, §1632. 34 See id. art. 59(1)(b) (“the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time”).


nonexistent budget.35 Although, in this case the organization would still legally exist, like the Trusteeship Council of the United Nations.36 E. Drivers of Reform In looking for means of reform, it is instructive to discern the drivers of good performance in international organizations more generally. In particular, insights can be gained from looking across the comparative data arising from studies such as the Multilateral Aid Review.37 One observation which arises from this analysis is that specialized organizations with a narrow focus tend to perform better.38 Hence, it appears that a direction for reform should be towards pruning the mandates of existing organizations and closely scrutinizing any attempts by existing organizations to broaden their functions. In particular, such proposals should be tested against an assessment as to whether: (a) The organization is performing a function that another organization could not perform more effectively; and (b) the organization is doing so through the most efficient means.

Essentially, an assessment is required as to whether an organization has a special role or set of capabilities that can add value beyond those organizations already in existence. This must be tested. Simply because an organization claims to be efficient at something does not mean that it is in reality. There may also be opportunities to consolidate organizations, either by merging organizations or by subsuming smaller organizations with larger ones. The latter would allow organizations to take advantage of economies of scale, such as common procedures and staff rules, provided that the mandate of the organization thereby created remains focused. There may also be structures that can be shared between international organizations. For example, international organizations typically have their own international administrative tribunal established to hear staff disputes.39 These are often quite costly to administer, particularly when considered against the low caseload of many of the smaller international organizations. This institutional architecture could be shared between international organizations. For example, the 35 See also SCHERMERS & BLOKKER, supra note 28, at 1057, §1641. 36 T.C. Res. 2200 (LXI), U.N. Doc. T/RES/2200 (LXI) (May 24, 1994).


38 This observation is based on the ratings for organizations such as the Global Alliance for Vaccines and Immunization and the International Committee of the Red Cross contrasted with those organizations with broader mandates such as the Commonwealth Secretariat or the United Nations Educational, Scientific and Cultural Organization. 39 For example, the United Nations maintains the United Nations Dispute Tribunal and the United Nations Appeals Tribunal, the World Bank maintains the World Bank Administrative Tribunal, and the International Monetary Fund maintains the Administrative Tribunal of the International Monetary Fund.

2014] Reform of International Organizations 1317 administrative tribunal of the International Labor Organization currently serves as the administrative tribunal for around sixty other organizations.40 Similarly, the ad hoc international criminal tribunals may be able to share functions. For instance, the residual functions of the ad hoc tribunal for Sierra Leone may be able to share with the International Residual Mechanism for Criminal Tribunals established for the former Yugoslavia and Rwanda. A compilation of the rosters of judges drawn from the different tribunals may also be possible, including the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea. In order to provide momentum for such change, some type of “extraordinary event” may be required to raise negotiations from “normal” processes, which “take place at a level of political importance that is too low to ensure success.”41 For example, Mathiason argues that a conference will not only focus attention on an issue, but also incentivize participants to generate an outcome in order to justify their attendance at the conference.42 Reforms can also be driven by pressure from governments and the community sector in much the same ways that organizations like the World Bank and the World Trade Organization have shifted their policies in response to public pressure.43 Additionally, changes to individual conduct could be driven by changing the incentive structures within such organizations. For example, international organizations could garnish the wages of officers found to have engaged in misconduct and pay those sums to persons affected by their actions. Reform could also be driven by the creation of a new international organization to supervise existing international organizations. However, creating another international organization in an attempt to address problems with existing international organizations compounds the problem. There are also pre-existing mechanisms, like the United Nations Secretariat or the Economic and Social Council of the United Nations, which could theoretically play such a role. However, despite their best efforts, these institutions provide only limited levels of

40 See Administrative Tribunal Membership, INT’L LABOUR ORG. (Sept. 22, 2011), http://www.ilo.org/public/english/tribunal/membership/index.htm (listing the organizations that have recognized the jurisdiction of the Administrative Tribunal). 41 JOHN MATHIASON, INVISIBLE GOVERNANCE: INTERNATIONAL SECRETARIATS IN GLOBAL POLITICS 96–97 (2007); see also Gabrielle Marceau, IGOs in Crisis? Or New Opportunities to Demonstrate Responsibility? 8 INT’L ORG. L. REV. 1, 1–13 (2011).

42 See id. at 96–97. 43 See, e.g., Alnoor Ebrahim & Steve Herz, Accountability in Complex Organizations: World Bank Responses to Civil Society (Harvard Bus. Sch., Working Paper No. 08–027, 2007), available at http://www.hbs.edu/research/pdf/08-027.pdf.


coordination and have themselves been the subject of numerous suggestions for reform.44 Alternatively, international organizations could be governed by a parliamentary entity, consisting of individuals elected from the different Member States of the international organization. In order to be effective, such an entity would require sufficient powers to examine officials of the international organization and to control its budget.45 The European Parliament is perhaps the only example of such an entity. However, there is unlikely sufficient interest in most international organizations to provide the momentum for such an entity, and it is difficult to see how such a voting process could be spread across the entire membership of international organizations like the United Nations. Additionally, to be sufficiently representative of different regions and peoples, such an entity would likely be large and unwieldy. Furthermore, there would be some question of whether the governments of Member States would be entirely comfortable with a body that could claim a level of political legitimacy through such elections,46 particularly if the governments participating are not themselves democratic. States could also drive reform themselves. However, given the present number of States and the existing difficulties in achieving international consensus on the world’s most pressing problems, it seems unlikely that States can reach a global agreement on the mechanisms through which such progress could be achieved. Rather, it seems more likely that progress will be achieved through groups of like-minded States interested in reform, with sufficient leverage over existing international organizations. These States can together develop better metrics and use them to drive reform. Individual States could also request officials from international organizations to appear before the committees of their various parliaments in order to justify their programs and expenditures. Indeed, parliamentary committees of Member States have at times called officials from international organizations to appear before them. Individual States have also been experimenting with more flexible arrangements to achieve these objectives. For example, governments have made greater use of trust funds, foundations, and other such structures. These structures, such as the

44 See, e.g., G.A. Res. 61/16, U.N. Doc. A/RES/61/16 (Jan. 9, 2007).

45 See also Vaubel, supra note 4, at 130–31.

46 This can also manifest in the decision of States to appoint a weak or ineffective leader to an international organization. See, e.g., JOHN HOLMES, THE POLITICS OF HUMANITY: THE REALITY OF RELIEF AID 15 (2013); KISHORE MAHBUBANI, THE GREAT CONVERGENCE: ASIA, THE WEST, AND THE LOGIC OF ONE WORLD 223–24 (2013); MARK MALLOCH BROWN, THE UNFINISHED GLOBAL REVOLUTION: THE LIMITS OF NATIONS AND THE PURSUIT OF A NEW POLITICS 53 (2011).

2014] Reform of International Organizations 1319 Bill and Melinda Gates Foundation, do not need to be established by Governments. As such they provide States will greater flexibility in achieving their objectives, without the resources, effort, and time required to establish and staff an international organization. F. Conclusion Reforming any organization will always be a difficult task and international organizations pose their own special challenges. The Multilateral Aid Review appears to have been effective in driving reform through its systematic assessment of the performance of multilateral organizations and its willingness to expressly link funding with outcomes. This linking enhances the incentives on international bureaucrats to reform with penalties for those that do not reform and opportunities to obtain further funding for those that do. These incentives will be compounded as the number of other nations also willing to link funding and outcomes grows. These incentives could be further enhanced if States are prepared to go the further step and wind up non-performing international organizations or those that have outlined their usefulness. In this regard, the United Kingdom’s House of Commons Committee of Public Accounts has noted that “[e]xiting significant sized poorly performing multilateral bodies would provide a strong incentive to other multilateral organisations to improve their performance, particularly if other countries followed suit.”47 Reform will go a long way to enhancing confidence in international organizations. This will in turn provide States with the confidence to entrust them with additional functions. Conversely a failure to reform will see international organizations relegated to the sidelines as States make use of other mechanisms to achieve their ends. The choice for international bureaucrats is clear.


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