Duke Law Scholarship Repository

Title

Dissent Aversion at the Court of Justice of the European Union

Author

Marsha C. Erb

Date of Award

2014

Document Type

Thesis

Degree Name

Master of Judicial Studies (LL.M.)

Institution

Duke University School of Law

Abstract

The Court of Justice of the European Union has jurisdiction over 28 politically, culturally and linguistically disparate member states in the interpretation and application of EU law. Throughout its 60-year history, the Court has banned publication of the separate opinions of its judges and their voting records favouring instead brief unsigned unanimous decisions achieved by majority vote. The CJEU defends its practice in the interests of protecting judicial independence and its own authority and legitimacy. The Court’s critics call for greater transparency by publishing dissenting opinions along the lines of the United States Supreme Court. The CJEU is one of the world’s most influential courts as well as a trusted EU institution with everything to lose if it lost authority and legitimacy. Introducing dissenting opinions exposing the CJEU to the challenges of non-compliance with its rulings and its judges to endemic corruption would put its independence, authority and legitimacy at serious risk. Non-compliance and corruption have not been previously linked to the issue of how the Court would be affected in a new judicial environment of this kind. There has been no comprehensive analysis about how EU member state corruption, recently described as ‘breathtaking’ in scope, would affect the Court’s judicial independence. Equally absent is scholarly discourse about fragmented opinions in the context of the nascent issue of member state non-compliance with CJEU judgments. Until multi-disciplinary research and in depth analysis identify a safe path for the Court to follow free from destructive elements, a different route to greater transparency needs to be pursued. At the present time, no such research and analysis exists.

Citation

Erb, Marsha C., Dissent Aversion at the Court of Justice of the European Union (2014) (unpublished LL.M. thesis, Duke University School of Law)
Available at: https://scholarship.law.duke.edu/mjs/8