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Book Review: Tom Flynn on “The Mimetic Evolution of the Court of Justice of the EU” (Leonardo Pierdominici)

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Tom Flynn reviews Leonardo Pierdominici’s book on The Mimetic Evolution of the Court of Justice of the EU (Palgrave Macmillan, 2020).]

Tom Flynn, University of Essex

This fascinating book analyses the development of the CJEU from its earliest days to the present through the lens of mimetism: that is, how the Court has ‘evolve[d] by facing several organizational challenges and by solving them through a selective internalization of internal and external comparative lessons.’[1] On this analysis, we can imagine the Court as a particularly inventive, discriminating, and shapeshifting magpie: borrowing the forms, procedures, and ideas of judicial and legal institutions across Europe and around the world in order to establish, preserve, and enhance its autonomy (p. 5) and its authority (p. 5-6). The author emphasises the originality of this approach: whereas whole forests and trillions of ones and zeros have been sacrificed to analysis of the CJEU’s role in the evolution of EU law; and to the study of its nature as an agent of comparative law; institutional analysis of the Court itself is rather less common. Pierdominici therefore situates his work within what he calls the ‘current discovery, or re-discovery, of historical studies in EU law’ (p.18).

Having set this context, the work progresses through five fields of study: the historical genesis of the Court’s structure; the mode of appointment of its members; the transparency of its procedures; its techniques of docket control; and the style of its reasoning. Though these are (sometimes very) different areas of study, the author does well to establish not only their interrelationship, but their conceptual sequencing. The procession from structure to membership to workings to caseload to output is a logically-ordered one, and one which allows the book’s fundamental arguments to build slowly, before the final chapter restates and expands upon the book’s central contribution to the literature: that the Court has consciously deployed mimetism as a tool to maximise its autonomy and authority.

As regards the first of these, autonomy, Pierdominici’s point is well made. As we work our way through the different chapters, it is striking to see the sheer doggedness (or recalcitrance, depending on one’s view) of the Court in staking out its own territory, and in seeing off attempts to ‘interfere’ with its prerogatives. In the context of the Court’s genesis, the author recounts (with some fascinating archival material) the splicing together of different judicial traditions, where the administrative functions of the Conseil d’Etat were hybridised with features drawn from classical international law and from the German negotiators’ ambitions to create a powerful body along the lines of the US Supreme Court or the Bundesverfassungsgericht (p. 56-66). But it was the Dutch constitutional reform of the early 1950s, whereby the Netherlands went further than any of the other founding Member States in constitutionally recognising the authority of international law, that provided the CJEU with an opening to autonomously transplant such recognition to the other Member States through the development of the doctrines of direct effect and primacy. It is no accident, the author argues, that ‘eight of the first eleven referrals to the [Court] came precisely from the Netherlands’ (p. 77).

Pierdominici also discusses contrary situations, where the Court exercises its autonomy in choosing not to mimic constitutional developments elsewhere. The sections on the Court’s (lack of) openness and transparency in its deliberations, particularly as regards dissenting judgments, demonstrate the extent to which the CJEU is an outlier in modern European judicial practice (p. 155-168). Here, the selectivity of the Court’s mimesis is on display: the Luxembourgish magpie is content not to bring the shiny comparative developments to its nest, and to persist with its traditional monophony. Pierdominici appears satisfied with this: though he notes that separate opinions were ruled out when the court was ‘a new and feeble institution’, (p. 158) he accepts the now-standard claim that ‘the need for protection of the authority of the CJEU in a multilevel, dialogical judicial system … is the strongest reason against’ (p. 202) the publication of concurring and dissenting judgments. Here we disagree, and the relatively thin (and, again, autonomous) developments concerning access to Court documents of which the Pierdominici approves (p. 191–201) strike this reader as a clearly second-rate compensatory measure in terms of transparency.

In emphasising the Court’s autonomy, Pierdominici quotes Ole Due, the Court’s former President, who ‘described the process of EU judicial reform as being akin to “a party of old schoolboys”’ (p. 357). This is apt, but it is also disturbing, and it brings us to Pierdominici’s second aim of the Court’s selective mimesis: authority. Here, the book is a little less convincing. Early on, the author defines authority in passing as the extent to which the Court is able to ‘induce deference’ (p. 5) in other European constitutional actors, and, much later, recounts the conflict between the General Court and the Court of Justice over the absorption of the Civil Service Tribunal and the expansion of the GC (p. 360). On my reading, what emerges from these excerpts, and from the rich analysis in between, is a Court more concerned with the appearance of authority than with the kind of substantive moral or intellectual authority that would derive from, say, a more open system of (permanent) judicial appointments; a more honest grappling with (and publication of) dissent within the Court; a more selective system of docket control whereby the Court properly delegates quotidian matters to national courts and the General Court; and a less gnomic and more intelligible literary style in its judgments. On this latter point, Pierdominici follows Weiler in describing the Court’s writing style as ‘apodictic, cryptic, [and] Cartesian’ (p. 172). In this eighth decade of the Court’s existence, this is altogether too generous. Though Pierdominici is right to point out that the Court’s multinational, multi-institutional, and multilingual context forces it to try to fashion something coherent out of a ‘mass of material moulded by others’ hands’ (p. 332) (itself a lovely phrase), he is perhaps insufficiently critical of the Court’s failure to reconcile the competing demands of clarity and concision in its pronouncements. He writes that ‘[t]he Court is now an unmasked power, whose activities are openly and often critically debated, well under the spotlight of the media’, (p. 336) but declines to give a clear answer as to whether this has had an impact on the Court’s language. I would argue that it has not, or has not sufficiently, and that consequently it was altogether too easy for the Bundesverfassungsgericht (itself rarely a model of lucidity) to deride the Court’s proportionality analysis in Weiss[2] as ‘not comprehensible and thus objectively arbitrary’.[3]

Though we may disagree on the point of authority, the fact remains that this compelling book ought to find a wide readership, and will interest anyone who works within any field related to the study of the CJEU and its output. The chapters on the Court’s foundation and structuring, on the appointment of its members, and on its procedures of docket control, are particularly compelling, and have shed (for me) entirely new light on the institution, its history, and its workings.

Suggested Citation: Tom Flynn, Review of “The Mimetic Evolution of the Court of Justice of the EU”(Leonardo Pierdominici), Int’l J. Const. L. Blog, Apr 9, 2022, at: http://www.iconnectblog.com/2022/04/book-review-tom-flynn-on-the-mimetic-evolution-of-the-court-of-justice-of-the-eu-leonardo-pierdominici/


[1] Leonardo Pierdominici, The Mimetic Evolution of the Court of Justice of the EU (Palgrave Macmillan, 2020), 6.

[2] Case C–493/17 Weiss ECLI:EU:C:2018:1000.

[3] BVerfG, 5 May 2015, 2 BvR 859/15, [118].

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Published on April 9, 2022
Author:          Filed under: Analysis
 

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