In this issue;
Guest editorial: Making gender equality visible in judicial selections at the European Court of Justice
In this issue
We begin this issue with a Guest Editorial by Laure Clement-Wilz and Fernanda Nicola, who invite reflection on the criteria for judicial selection at the European Court of Justice. They propose integrating gender parity as a soft criterion in the judicial selection process, thereby contributing to broader discussions on diversity in judicial appointments.
This year’s I•CON Foreword, written by Nehal Bhuta, explores the foundations of social rights in nineteenth-century constitutionalism, tracing their evolution from early conceptualizations to the more sophisticated forms of the social state. Bhuta underscores the importance of revisiting this history, particularly in light of growing contemporary inequality and concentration of wealth.
The Articles section opens with Holning Lau’s analysis of jurisprudence from the Global South on the decriminalization of same-sex sexual activity. Lau highlights that this jurisprudence is defined by anticolonial approaches, a broader recognition of rights violations and a strong focus on constitutional morality and pluralism, contributing to global LGBTQ legal debates. Damian Cueni discusses the first step of basic rights adjudication, advocating for a moderate approach to defining the scope of rights, emphasizing its normative role in acknowledging political costs and bridging legal and political discourse. Yoomin Won reviews 373 state notifications on human rights derogations during the COVID-19 pandemic under three treaties, identifying variations in derogation duration, legal justifications, and regional practices. Won calls for reforms to strengthen international monitoring in crises.
The issue also features a Symposium, curated by Erin Delaney, Rosalind Dixon and David Kosař, examining the role of Chief Justices (CJs) in times of constitutional crisis, with a focus on their intellectual leadership and institutional influence. The collection is dedicated to Dr Julius Yam (1992-2024), co-author of the symposium article with Professor Cora Chan, who tragically passed away during its finalization. It opens with an article by Rehan Abeyratne and Surbhi Karwa, who argue that as India’s constitutional democracy has been subjected to severe strain under Prime Minister Narendra Modi, successive CJs have misused their authority to advance an illiberal agenda, leading to institutional crises that have made the Supreme Court more vulnerable to government control. Cora Chan and Julius Yam analyze how Hong Kong’s post-handover CJs have addressed constitutional and political challenges through public discourse, showing that, despite their differing styles, all three navigated a balance between liberal legal principles and Chinese sovereignty with pragmatic rhetoric. Daniel Bogea and Livia Guimarães examine how successive CJs of Brazil’s Supremo Tribunal Federal navigated Bolsonaro’s government under the “rotating” leadership model. They argue that incremental shifts in judicial, administrative, and representative powers helped the Court resist threats to democracy. Julio Rios-Figueroa and Andrea Pozas-Loyo use the Mexican case to demonstrate that “insider” CJs, who have had long judicial careers, have institutional backing and a stronger capacity to defend judicial autonomy, unlike “outsider” CJs. Victoria Miyandazi and Duncan Okubasu focus on hybrid regimes, such as Kenya, emphasizing how judicial effectiveness arises from the interplay of leadership, institutional independence, interdependence, and public support. Yaniv Rosnai and Shani Shnitzer explore Justice Esther Hayut’s tenure as President of Israel’s Supreme Court, arguing that she employed strategic judicial approaches to uphold the Court’s power and defend the rule of law against executive-legislative encroachment amid ongoing constitutional crises and democratic erosion. David Kosař and Katarina Sipulova discuss how CJs in Central Europe have resisted political attempts to undermine them by leveraging increased supranational protections of judicial independence. They also reflect on how similar strategies could be adapted in jurisdictions with weaker supranational safeguards. Finally, Theunis Roux and Sinetheba Mamela examine the unexpectedly independent tenure of South Africa’s CJ Mogoeng Mogoeng, despite initial concerns over his conservative views and political ties. They argue that the institutional authority of the CJ’s office enabled him to oppose corruption, while the Constitutional Court’s tradition of reasoned decision-making constrained his ability to impose personal religious biases.
GR
Finally, this issue includes one review essay and four book reviews, which discuss a variety of topics in various jurisdictions, including populism in Italy, the UK’s changing constitution, constitutional resilience in South Asia, national identity in Central Europe, and misogyny. Specifically, in his review essay, Antoni Abat i Ninet reviews Filtering Populist Claims to Fight Populism: The Italian Case in a Comparative Perspective, which argues that populism and constitutionalism cannot be reconciled, with the reasons lying in the exclusionary, holistic, and majoritarian nature of populism. Gavin Phillipson reviews Sceptical Perspectives on the Changing Constitution of the United Kingdom, arguing that it is alarming to suggest that what the British constitution needs is not more checks and balances but an executive branch with less constraints than at present. In her review of Constitutional Resilience in South Asia, Prerna Dhoop discusses whether constitutional patriotism comes into direct collision with the concept of constitutional morality. Katarzyna Krzyzanowska reviews The Jurisprudence of Particularism, analysing the challenges to European integration posed by, inter alia, top domestic courts. Finally, Rosalind Dixon reviews After Misogyny, highlighting that the real question is how we can ensure that attempts to constitutionalize care and our efforts to reward mothering do not simply end up enchaining women.
CCL
Guest Editorial: Making gender equality visible in judicial selections at the European Court of Justice
We invited Laure Clément-Wilz and Fernanda G. Nicola to contribute a Guest Editorial.
The debate over the selection of judges at the Court of Justice of the European Union (CJEU)—specifically, over the judges who judge the judges—has become an increasingly contested issue in EU law.[1] Scholars have highlighted the tensions surrounding judicial appointments, focusing on the role of the committee established by article 255 of the Treaty on the Functioning of the European Union (TFEU), commonly known as the 255 Committee, which was introduced with the Lisbon Treaty.[2] As an independent expert body, the 255 Committee is tasked with assessing the suitability of judges and advocates-general (AGs) nominated by each member state in the initial stage of the selection process.
Since its inception, the 255 Committee’s evolving institutional practices have drawn both praise and criticism. EU law scholars broadly agree on the improvement brought by this new procedural step in the selection procedure, but also on the need to enhance the 255 Committee’s accountability by increasing transparency at several procedural stages. For instance, the name of the candidate or candidates proposed by the member state could be systematically disclosed, as this is publicly available in some member states but not others. Additionally, greater transparency regarding the 255 Committee’s hearings and the reasons for rejecting candidates.
Recently, concerns have been raised regarding its assessment criteria, such as the twenty-years of high-level professional experience for candidates for the office of judge or advocate-general of the Court of Justice, and twelve or even fifteen years for candidates for the office of judge of the General Court), which has sparked lively discussions on EU Law Live Blog.[3]
Feminist legal scholars have long emphasized the persistent underrepresentation of women within the CJEU.[4] However, the majority of scholarship and debates led by EU law scholars on the recruitment process of judges and AGs omit gender considerations entirely. One notable exception is the research of Bilyana Petkova, who bridges feminist debates with the more technical discussions on judicial selection. Petkova underscores how the European Court of Human Right (ECtHR) recruitment process, more receptive to gender parity, could serve as a model for the CJEU, particularly in light of the European Union’s anticipated accession to the European Convention of Human Rights (ECHR).[5] Similarly, in previous publications in French,[6] and in our blog post,[7] we integrate both feminist and technical perspectives on role of the 255 Committee, shifting the focus of EU law scholars towards recognizing gender parity as a “soft criterion” in the selection process.
The 255 Committee assesses the candidate’s qualifications or “suitability”—a term that translates to adéquation in French—by aligning individual credentials with the demands of judicial posts at the CJEU. This broad framing grants the 255 Committee significant room for interpretation. Since its first report in 2011, the 255 Committee has maintained that it merely clarifies and articulates the criteria for judges and AGs set out in articles 253 and 254 TFEU. While its role clearly extends beyond mere clarification, we align with the view that this discretion remains within the boundaries of the Treaty.[8] The 255 Committee’s evaluation framework is designed to be flexible, assessing each candidate’s ethical standing, expertise, and experience in relation to the specific judicial role proposed by a member state. Article 255 TFEU establishes this adaptable approach to enhance transparency and tailor assessments to the requirements of each post. We argue that this interpretative flexibility also creates an opportunity to incorporate gender as a “soft criterion” in the assessment framework—an urgently needed improvement.
Historical data reveals persistent gender disparities among CJEU judges. Since the Court’s establishment in 1952, women’s representation has been minimal, with the first female judge joining only in the 1980s. A decade-by-decade review shows slow progress: in 1980, there was just one woman on the bench; the 1990s saw a slight increase with the creation of the Court of First Instance (which became the General Court), while the 2000s, 2010s, and 2020s have witnessed only incremental growth.[9] Despite these gains, women remain significantly underrepresented. Today, only five of the twenty-seven judges at the Court of Justice (CoJ) are women, and just three of the eleven AGs are female. The General Court (GC) fares slightly better, with women holding eighteen of fifty-four positions, yet true gender parity remains a distant goal.
Country-specific trends among the founding member states further underscore persistent gender disparities in CJEU appointments. Data from France and Italy, for instance, reveal stark contrasts in the nomination of women. France has not appointed any female judge since 1981. In 2019, the satirical newspaper Le Canard Enchaîné reported that, for the first time in nearly forty years, France had proposed a female candidate for the position of AG following an open call. However, the 255 Committee rejected her candidacy, citing insufficient expertise in EU law—highlighting the gap between formal commitments to openness and the practical outcomes of the selection process.
In Italy, women remain largely overlooked in judicial nominations. Scholars have long advocated for transparent selection processes to ensure highly qualified Italian candidates receive fair consideration.[10] A notable milestone was achieved in 2016 when, for the first time, the government appointed a woman judge to the GC through an open call for applications. However, Italy now appears to be reversing this progress. For the replacement of its two GC judges in 2025, the government has chosen to bypass an open call, undermining the principles of fairness and competence. Another historic milestone came in 2019 with the appointment of Lucia Serena Rossi, as Italy’s first female judge at the CoJ, albeit without an open call. Her six-year mandate ended in 2024,[11] and the newly appointed government declined to confirm her, instead appointing two men as judge and AG at the CJEU. Had an open selection process been upheld, it could have encouraged qualified female candidates to apply, reinforcing Italy’s commitment to gender parity in judicial appointments.
Given the low number of women at the CJEU, it is unsurprising that the more powerful roles within this institution have been limited. Neither the CoJ nor the GC has ever had a female president and the CoJ had only one female vice president since 2018. Rosario Silva de Lapuerta (Spain) served as vice president of the CoJ from 2018 to 2021, following nearly two decades as a judge at the Court (2003–21).
Achieving gender parity in judicial appointments requires rethinking the concept of suitability rather than relying on a narrow definition of meritocracy.[12] Suitability should be understood as a set of essential skills—such as a minimum level of expertise in EU law and, as stated by the 255 Committee in its reports, “the ability to acquire proficiency, within a reasonable time, in the working language of the European courts”[13]—while also prioritizing gender equality. The perceived dichotomy between merit-based and gender-inclusive selection remains problematic. As Lady Hale, former President of the UK Supreme Court, has observed, definitions of merit often reflect the characteristics of those already in power.[14] The 255 Committee interpretation of suitability should evolve to incorporate diversity criteria, including gender parity.
The European Parliament (EP) has played a crucial role in advocating for gender parity among AGs and judges at the CJEU. In the 2015 revision of the CJEU Statute, the EP, acting as a co-legislator, introduced a preliminary recital emphasizing the importance of ensuring gender balance within the GC. It urged member states to gradually nominate candidates with the aim of selecting one man and one woman after the doubling of judges at the GC. This first official signal from the European legislator directed to the member states and it was swiftly reflected in the subsequent nominations to the GC. More recently, the Committee on the Elimination of Discrimination Against Women stated in General Recommendation No. 40 that gender parity requires equal representation of men and women (50/50)[15]—a principle that has yet to be meaningfully integrated into the selection of CJEU judges by the member states.
To address gender disparity at the CJEU, we propose integrating gender parity as a “soft criterion”in the judicial selection process. As a general principle of EU law, gender parity should be factored into the 255 Committee’s evaluation—explicitly in its report and through a soft statement on gender awareness in each candidate’s rejection report. This approach could also involve tracking member states’ records on nominating women to the CJEU by publishing a database detailing the number of female judges and AGs by country or by court, similar to the GQUAL data collection on women in international courts.[16]
Our deliberate emphasis on soft gender parity reflects the need to balance gender representation with essential qualifications. As the 255 Committee reports make clear the “assessment of candidates is an overall assessment” and this “does not favour any specific candidate profile.”[17] Since 2010, the 255 Committee’s opinions have been systematically followed by member states, fostering more transparent and merit-based national selection processes.[18] This prevents governments from manipulating gender parity to advance politically aligned candidates. Crucially, the Committee retains the power to reject any nominee—male or female—who lacks the ethical and professional standards required for the role.
By adopting our proposal, the Committee can take a decisive step toward a more inclusive and representative CJEU. Gender should no longer be an afterthought in judicial appointments but a fundamental part of the conversation about who judges the judges. Encouragingly, the 255 Committee itself has become more gender-balanced over time.[19] Persistent concerns about transparency—especially regarding new assessment criteria—are likely to spur procedural reforms, whether formal or informal. To bolster its legitimacy, the 255 Committee should seize this moment in its evolution to address gender disparity at the CJEU, ensuring that fairness, transparency, and gender equality become cornerstones of the selection process.
Laure Clément-Wilz
Université Paris-Est Créteil, Paris, France
Email : laure.clement-wilz@u-pec.fr
Fernanda G. Nicola
American University Washington College of Law, Washington, D.C., United States
Email: fnicola@wcl.american.edu
[1] See Jean-Victor Louis, La nomination des juges de la Cour de justice: Quelques observations à la suite d’une Conférence, 3 Cahiers de droit européen 560 (2013); Selecting Europe’s Judges: A Critical Review of the Appointment Procedures to European Courts (Michal Bobek ed., 2015) [hereinafter Selecting Europe’s Judges] (containing several chapters on the 255 Committee); Mitchel Lasser, Judicial Dis-Appointments and the Rise of Judicial Independence (2020).
[2] See Consolidated Version of the Treaty on the Functioning of the European Union art. 255(1), May 9, 2008, 2008 O.J. (C 115) 47 [hereinafter TFEU] (stating: “A panel shall be set up in order to give an opinion on candidates’ suitability to perform the duties of Judge and Advocate-General of the Court of Justice and the General Court before the governments of the Member States make the appointments referred to in Articles 253 and 254.”).
[3] See EU Law Live Symposium entitled The Selection of EU Judges and the 255 Committee (Nov. 21, 2024). The contributions included: Joseph Weiler, Who Will Judge the Judges Who Judge the Judges? The Curious Case of Gonçalo Manoel de Vilhena de Almeida Ribeiro, EU Law Live (Sept. 20, 2024), https://eulawlive.com/who-will-judge-the-judges-who-judge-the-judges-the-curious-case-of-goncalo-manoel-de-vilhena-de-almeida-ribeiro-by-joseph-h-h-weiler/ (by subscription).
[4] See Sally J. Kenney, Gender on the Agenda: How the European Court of Justice Has Transformed EU Law and Why It Matters, 8 Colum. J. Eur. L. 99 (2002); Iyiola Solanke, Independence and Diversity in the European Court of Justice, 15 Colum. J. Eur. L. 89 (2009); Jessica Guth & Sanna Elfving, Gender and Representation in the CJEU: Strategic Actors, Constraints, and Legitimacy, 13 Fem. Legal Stud. 75 (2021); Jo Shaw, Gender and the Court of Justice, in The European Court of Justice 87 (Gráinne de Búrca & Joseph Weiler eds., 2001); Delphine Dero-Bugny & Anemone Cartier-Bresson, Propos introductifs: Enjeux et méthodes des réformes, inLes réformes de la Cour de justice de l’Union européenne 3 (Delphine Dero-Bugny & Anemone Cartier-Bresson eds., 2020).
[5] Bilyana Petkova, Spillovers in Selecting Europe’s Judges: Will the Criterion of Gender Equality Make it to Luxembourg?, in Selecting Europe’s Judges, supra note 1, at 222.
[6] Laure Clément-Wilz, La sélection des juges et des avocats généraux: Bilan du “comité 255,” in Les réformes de la Cour de justice de l’Union Européenne, supra note 4, at 65; Laure Clément-Wilz, La Cour de justice de l’Union européenne 48 (2020).
[7] See Laure Clément-Wilz & Fernanda G. Nicola, Rising Gender Disparity at the CJEU, Verfasungsblog (Nov. 11, 2024), https://verfassungsblog.de/gender-disparity-cjeu.
[8] François-Xavier Millet, On the Autonomous Concept of Suitability under Article 255 TFEU, EU Law Live (Sept. 26, 2024), https://eulawlive.com/op-ed-on-the-autonomous-eu-concept-of-suitability-under-article-255-tfeu/ (by subscription).
[9] One woman served as a CJEU judge from 1980 to 1989; two women were appointed between 1990 and 1999; fifteen between 2000 and 2009; eighteen between 2010 and 2019; and eleven have been appointed since 2020. See generally Former Members, Ct. of Justice of the Eur. Union, https://curia.europa.eu/jcms/jcms/Jo2_7014/en (last visited Mar. 19, 2025); General Court: Presentation of the Members, Ct. of Justice of the Eur. Union, https://curia.europa.eu/jcms/jcms/Jo2_7035/en (last visited Mar. 19, 2025); Court of Justice: Presentation of the Members, Ct. of Justice of the Eur. Union, https://curia.europa.eu/jcms/jcms/Jo2_7026/en (last visited Mar. 19, 2025).
[10] See Chiara Favilli, Il Regno Unito apre una selezione pubblica per la designazione del giudice del Tribunale dell’Unione europea: una buona prassi anche per l’Italia?, Eurojus.it Rivista (Dec. 2, 2015), https://rivista.eurojus.it/il-regno-unito-apre-una-selezione-pubblica-per-la-designazione-del-giudice-del-tribunale-dellunione-europea-una-buona-prassi-anche-per-litalia/.
[11] See Allocution de fin de mandat de la Juge Lucia Serena Rossi présentée à la Cour de Justice le 7 octobre 2024, Associazione Italiana Studiosi di Diritto dell’Unione Europea, www.aisdue.eu/allocution-de-fin-de-mandat-de-la-juge-lucia-serena-rossi-presentee-a-la-cour-de-justice-le-7-octobre-2024 (last visited Mar. 19, 2025).
[12] See Daniel Markovits, The Meritocracy Trap: How America’s Foundational Myth Feeds Inequality, Dismantles the Middle Class, and Devours the Elite (2019).
[13] 255 Committee, Seventh Activity Report of the Panel Provided for by Article 255 of the Treaty on the Functioning of the European Union 18 (2022), https://op.europa.eu/documents/5642886/10597137/2022.2597-QCAR22002ENN_002.pdf/.
[14] See Alan Paterson & Chris Paterson, We Need to Rethink How We Define Merit for Supreme Court Appointments, The Guardian (Mar. 26, 2012), www.theguardian.com/law/2012/mar/26/rethink-merit-supreme-court-appointments.
[15] Comm. on the Elimination of Discrimination Against Women, General Recommendation No. 40 on Equal and Inclusive Representation of Women in Decision-Making Systems, U.N. Doc. CEDAW C/GC/40 (Oct. 23, 2024).
[16] See Where Are the Women in International Decision-Making Spaces?: Composition of International Organizations and Tribunals, GQUAL, https://gqualcampaign.org/data/current-composition/ (last visited Mar. 19, 2025).
[17] See 255 Committee, supra note 13, at 18.
[18] Tomáš Dumbrovský, Bilyana Petkova, & Marijn Van Der Sluis, Judicial Appointments: The article 255 TFEU Advisory Panel and Selection Procedures in the Member States, 51 Common Mkt. L. Rev. 455 (2014).
[19] The fourth panel of the 255 Committee is composed of four women and three men, while previous Committee panels only had one or two female members. See Composition,255 Committee, https://comite255.europa.eu/en (last visited Mar. 19, 2025).
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