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Published online by Cambridge University Press: 15 September 2021
In multi-panelled higher jurisdictions, a larger, extended formation of judges tends to be established within the court. It bears various names: the grand chamber, the extended chamber, the expanded composition, the reunion of several chambers, a court sitting en banc, an extended section or a division of a court. In larger but not too large jurisdictions, the same role is adopted by the plenary. For ease of reference, I shall refer to all such extended judicial formations with the generic name ‘grand chamber’.
To bear the same name does not necessarily mean to perform the same function. As a Czech lawyer, I have always intuitively assumed that the role of such a body within an apex court is to unify the case law. In the Czech Republic, as well as in a number of other supreme continental jurisdictions for that matter, there tends to be only one reason for the presence of a grand chamber within a supreme court: to unify the diverging lines of case law and to set a clear line of precedent. However, that has never really been the job description, least of all the practice, of the Grand Chamber of the Court of Justice of the European Union (‘Court’). This begs the question: what may then be other structural reasons for the existence of such a body within an apex jurisdiction? What is the specific role, function, and ensuing justification for the Grand Chamber of the Court?
This article offers some personal reflections on that question. It is structured as follows: it begins with a short comparative overview of some of the grand chambers within European (national) courts, overseas in the common law world, as well as at the European Court of Human Rights, in order to tease out the functional rationale for various types of extended judicial compositions within those systems (Part I). Next, two types of such functional justifications for grand chambers in the form of ideal models are identified (Part II). Finally, those justifications are then considered in light of the legislative design and the current practice of the Grand Chamber of the Court, before concluding with two modest suggestions (Part III).
Advocate General at the Court of Justice of the European Union. All opinions expressed are strictly personal to the author.
1 Be it by a writ of certiorari, a leave to appeal, or whatever other form of selection of cases. See generally, JA Jolowicz, “The Role of the Supreme Court at the National and International Level’ in P Yessiou-Faltsi (ed), The Role of the Supreme Courts at the National and International Level (Sakkoulas Publications, 1998); or Bobek, M, ‘Quality or Quantity: Re-assessing the Role of Supreme Jurisdictions in Central Europe’ (2009) 57 American Journal of Comparative Law 33CrossRefGoogle Scholar.
2 The Supreme Court decided to sit for the first time ever as the full court in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. See Lee, J, ‘Against all Odds: Numbers Sitting in the UK Supreme Court and Really, Really Important Cases’ in Daly, P (ed), Apex Courts and the Common Law (University of Toronto Press, 2019), p 99Google Scholar.
4 Andrew Burrows, at present himself a member of the Supreme Court, notes that the first time when those criteria appeared in the public was in 2010 when published on the website of the then newly established Supreme Court. Burrows, A, ‘Numbers Sitting in the Supreme Court’ (2013) 129 Law Quarterly Review 305, p 307Google Scholar.
5 Which has apparently started already under the auspices of Lord Bingham of Cornhill in the late days of the Appellate Committee of the House of Lords (after 2000). Burrows, note 4 above, p 307.
6 Sometimes indeed a reason for critique. See, for example, Samuels, A, ‘Those Multiple Long Judgments’ (2005) 24 Civil Justice Quarterly 279Google Scholar.
7 Critically on the inherent subjectivism in the definition of an ‘important case’, see the (rather already telling as to its title) contribution by Lee, note 2 above.
8 By ‘supreme jurisdictions’ in this context I refer to the supreme courts as the heads of their respective areas of jurisdiction (civil, criminal, or administrative, with potential further subdivisions) and not national constitutional courts. The latter courts, which in most of the continental systems form a specialised, concentrated jurisdiction, tend to be structured somewhat differently. However, in those constitutional courts which would have a higher number of judges sitting, the function of a grand chamber may be exercised by the plenary.
9 Section 16(3) of Law No 150/2002 Collection of Laws, Code of Administrative Justice.
10 Section 17(1) of the Code of Administrative Justice.
11 For an excellent comparative study of all three jurisdictions on the issue, see O Kadlec, Role velkých senátů v rozhodování vrcholných soudů České republiky (Wolters Kluwer, 2019).
12 Further, see Taruffo, M and Torre, M La, ‘Precedent in Italy’ in MacCormick, N and Summers, RS (eds), Interpreting Precedents – A Comparative Study (Ashgate, 1997), p 141Google Scholar; or also M Troper and Ch Grzegorczyk, ‘Precedent in France’ in ibid, p 103, noting at p 136 the (apparently not so rare) instances in which horizontal conflicts of precedents occur within the Cour de cassation due to overload of that court.
13 Which certainly does not preclude other international jurisdictions deciding in specific larger formations, but apparently not in such a structured and established way. See, for illustration, M Shahabundeen, Precedent in the World Court (Cambridge University Press, 1996), pp 141 ff.
14 Article 43(2) foresees a panel of five judges of the Grand Chamber deciding whether the request by a party to seize the Grand Chamber is warranted. The available statistics indicate that the success rate is rather low, with about only 5.16% of requests for the referral procedure to the Grand Chamber being successful between 1998 and 2011 (In: The General Practice Followed by the Panel of the Grand Chamber when Deciding on Requests for Referral in Accordance with Article 43 of the Convention, a Note by the ECtHR, p 4, https://www.echr.coe.int/Documents/Note_GC_ENG.pdf.) In his MSt Thesis entitled The Role of the Grand Chamber in the European Court of Human Rights, defended at the University of Oxford in Trinity Term 2018, O Kadlec computed that success rate to lie at 6.2% for the years 2004 to 2017 (unpublished manuscript, on file with the author).
15 See, in this regard, the categories set out in the Note on the General Practice, note 14 above, in particular under letters (b), (e), (f), and (g).
16 I am relying on Table 2 on p 35 of the research carried out by Kadlec, note 14 above, who, having computed the procedural origin of Grand Chamber cases between 2004 and 2017 noted that on average, the Grand Chamber decided 19 cases annually, out of which 12 of those came in the form of referral under Article 43 of the Convention, and only seven by the relinquishment of the jurisdiction under Article 30 of the Convention.
17 Kadlec, note 14 above, p 33, Table 1. With all the various formations deciding on merits (that is excluding all the decisions on admissibility) between 2004 and 2017 there were 1.124 cases annually, out of which there were on average 17 decisions of the Grand Chamber each year.
18 Rule 35 of the Federal Rules of Appellate Procedure states that a court of appeal might hear or rehear a case en banc if its (1) consideration is necessary to secure or maintain uniformity of the court's decisions; or (2) the proceeding involves a question of exceptional importance. See also Section 46(c) Judicial Procedure Act.
19 See in general on the philosophical paradoxes of judicial counting of heads, Waldron, J, ‘Five to Four: Why Do Bare Majorities Rule on Courts?’ (2014) 123 Yale Law Journal 1692Google Scholar.
20 In the US context, the partial en banc formations of the Federal Courts of Appeal have been criticised for exactly that in the past: majority rule in name only. See, for instance, Ginsburg, D H and Falk, D, ‘Court En Banc: 1981–1990’ (1990) 59 George Washington Law Review 1008Google Scholar, pp 1034 ff.
21 In a number of continental systems, the key for selection tends to be seniority: enlarged composition tasked with securing unity of case law would then be composed of the president of the court and (senior) presidents of chambers. Such a composition model might work very well if the only rationale is securing unity of the case law—presidents of chambers are likely to be able to effectively ‘transmit and implement’ the solution reached in the grand chamber to their respective chambers. At the same time, however, similar model of composition might be questioned in terms of its representativeness, and lead to certain top-down institutional conservatism.
22 While certainly not denying the fact that in practical terms, within the judicial institution at issue, even such a minoritarian decision is likely to be endowed with certain authority because it was reached by the most senior members of that institution (president of court and presidents of chambers). Thus, rather intriguingly, elements of personal authority are thereby inserted into that model as well.
23 The following section is a revisited version of an argument already presented in Bobek, M, ‘More Heads, More Reason? A Comparative Reflection on the Role of Grand Chambers at National and European Levels’ in Petrlík, D et al. (eds), Évolution des rapports entre les ordres juridiques de l'Union européenne, international et nationaux: Liber amicorum Jiří Malenovský (Larcier, 2020), p 523Google Scholar.
24 OJ 2012 L 265, p 20.
25 Articles 27 and 34 of the Rules of Procedure respectively (OJ 2012 L 265, pp 13, 15).
26 Article 60(1) of the Rules of Procedure, which equally also mentions the second scenario for the assignment of a case to the Grand Chamber, already foreseen by the Statute: when a Member State or institution participating in the proceedings so requests under Article 16 of the Statute.
27 See also Prechal, S, ‘The Many Formations of the Court of Justice: 15 Years after Nice’ (2016) 39 Fordham International Law Journal 1273Google Scholar, at p 1286, mentioning that the GC may be called upon to provide guidance in cases of inconsistency of the case law of the Court, while setting out other mechanisms there are within the Court for guaranteeing the consistency of its case law.
28 See, for a recent example, judgment of 9 July 2020, Santen, C-673/18, EU:C:2020:531, para 53, which explicitly overruled a key element of judgment of 19 July 2012, Neurim Pharmaceuticals, C-130/11, EU:C:2012:489.
29 There is no fixed magical number in that regard. Intriguingly, up to that (tipping) point, the participation of more judges is likely to increase the quality of reasons offered, as is likely to be the case, for example, of a chamber composed of three or even five judges (within which genuine exchange is likely to produce a better reasoned decision than if a judge is sitting alone). That typically stops being the case in larger judicial bodies, where similar constructive exchange becomes less likely.
30 Leading to those ‘cryptic, Cartesian’ judgments. JHH Weiler, ‘Epilogue: The Judicial Après Nice’ in G de Búrca and JHH Weiler (eds), The European Court of Justice (Oxford University Press, 2001), p 225.
31 In this way, eventually arriving at what Stephen Weatherill pertinently called a ‘circumloquacious statement of the result, rather than a reason for arriving at it’ in his contribution in M Adams et al (eds), Judging Europe's Judges: The Legitimacy of the Case Law of the European Court of Justice (Hart, 2013), p 87.
32 See already, on the ‘majoritarian activism’ observed some time ago in the context of the free movement of goods. Maduro, M Poiares, We the Court: The European Court of Justice and the European Economic Constitution (Hart, 1998)Google Scholar.
33 For a comparative discussion with examples from Germany, Spain, the Czech Republic, Slovakia, or Slovenia, see the volume edited by the Ústavní soud (Constitutional Court, Czech Republic) entitled The Limits of the Constitutional Review of the Ordinary Courts’ Decisions in the Proceedings on the Constitutional Complaint (Linde, Prague, 2005). With regard to the reproached ‘overreach’ of the constitutional review, see for instance already Bundesministerium der Justiz, Entlastung des Bundesverfassungsgerichts: Bericht der Kommission (Moser, Bonn, 1998), pp 62–66.
34 Or, in terms of the fifth subparagraph of Article 16 of the Statute of the Court, cases of ‘exceptional importance’ that may be therefore referred to the full Court.
35 See, in particular, Accession of the European Union to the ECHR, Opinion 2/13 of 18 December 2014, EU:C:2014:2454; EU-Singapore Free Trade Agreement, Opinion 2/15 of 16 May 2017, EU:C:2017:376; EU-Canada Free Trade Agreement, Opinion 1/17 of 30 April 2019, EU:C:2019:341; Wightman and Others, Judgment of 10 December 2018, C-621/18, EU:C:2018:999.
36 For further detail see, for example, Prechal, note 27 above.
37 In 2019, the docket arrived at 966 new cases, with 641 of them being requests for preliminary rulings. In 2018, there were 849 new cases (568 preliminary rulings); in 2017, 739 new cases (533 preliminary rulings); in 2016, 692 new cases (470 preliminary rulings). In 2020, the number of new cases dropped to 735 new cases. However, that decline is temporal, due to the COVID-induced hibernation of most national courts for large parts of the year 2020, and thus unlikely to constitute a new trend.
38 Currently listed in Article 58a Statute of the Court of Justice.
39 In the true docket selection mechanisms, no written reasons are given for not selecting a case to proceed to a hearing on merits. It is only in this way that a selection of cases is effectively able to de-burden a court from having to repeat the same reasons again, and again, and again. See in detail note 1 above.
40 As already suggested in Bobek, M, ‘The Court of Justice of the European Union’ in Arnull, A and Chalmers, D (eds), The Oxford Handbook of European Union Law (Oxford University Press, 2015), pp 153, 156Google Scholar.
41 Sometimes even abundantly so. In detail, see my Opinion in Consorzio Italian Management and Catania Multiservizi, C-561/19, EU:C:2021:291, pts 139–149.
42 That is, the figures listed above in note 37. With regard to the new cases coming in the preceding judicial year because it naturally takes some time before, after a case is filed at the Court, all the necessary notifications, exchange of pleadings and translations take place so that that case can be allocated to a given judicial formation.
43 Prechal, note 27 above, p 1283, indicating that in the period between 2010 and 2014, the average number of cases decided by the GC rested at around 10% of all cases submitted to the Court, with the GC deciding on average 55 cases a year (but naturally with the overall number of cases decided annually being lower, starting with 496 in 2010 and rising to 624 in 2014).
44 With for instance the UK Supreme Court deciding on average around 80 to 90 cases on merits annually (see the Annual Reports of the jurisdiction at https://www.supremecourt.uk/about/planning-and-governance.html).
45 Contrast in this regard the above quoted figures concerning the Grand Chamber of the ECtHR, note 17 above, indicating that in the ECtHR, it is just 1.5% of cases (decided annually on merits, thus naturally excluding the high numbers of cases being lodged annually before that jurisdiction and being rejected at the stage of admissibility).
46 See Rasmussen, H, ‘Present and Future European Judicial Problems after Enlargement and the Post-2005 Ideological Revolt’ (2007) 44 Common Market Law Review 1661, pp 1670–1675CrossRefGoogle Scholar, voicing concerns that due to its increased role and the way it was composed, the GC after 2004 could have for its effect the marginalisation of some judges.
47 See the proposed Draft Amendments to the Statute of the Court of Justice of the European Union, Document of the Council of the European Union of 7 April 2011, 2011/0901(COD), JUR 8787/11, p 4.
48 Set out in detail in Article 27 Rules of Procedure of the Court.
49 See, for example, the recent line of cases, all delivered by the GC, and all concerning the scope of the Member States’ duty to protect the financial interests of the EU under Article 325 TFEU, in particular the question of whether a national rule that appears to impede the proper and full collection of value added tax, including the imposing of sanctions for fraud or other illegal activities affecting the financial interests of the EU, should be disregarded, giving rise to the judgments of 8 September 2015, Taricco and Others, C-105/14, EU:C:2015:555; of 5 December 2017, MAS and MB, C-42/17, EU:C:2017:936; of 2 May 2018, Scialdone, C-574/15, EU:C:2018:295; and of 5 June 2018, Kolev and Others, C-612/15, EU:C:2018:392. For the reasons I set out in my Opinion of 25 July 2018 in Dzivev, C-310/16, EU:C:2018:623, it is rather difficult to suggest that all these judgments, issued within three years and all of them in the GC, are entirely consistent.
50 Equally, while naturally the referring national court is encouraged, should it so wish, to make its views on the interpretative problem referred known in its order for reference, the practice of doing so cannot be said to be overwhelming. Further in this regard see for instance my Opinion in Joined Cases Germany and Hungary v Commission and Commission v Ville de Paris and Others, C-177/19 P to C-179/19 P, EU:C:2021:476, pts 108–109 and the examples cited therein.
51 ‘The usefulness of an Advocate General might initially have been taken for granted. After all, the Court being modelled after the Conseil d'Etat with its commissaires du gouvernement and for a good number of years acting both as first and last instance in all cases, it would have been easy to see the usefulness of Minenhunde. If all goes well, the Advocate General will have shown the Court a safe passage through a legal minefield, and if not – it was after all just a dog.’ N Wahl, Message de départ, booklet issued by the Court on the occasion of the departure of AG Wahl on 6 February 2019, p 9.
52 In detail, see Bobek, M and Adams-Prassl, J, ‘Conclusion’ in Bobek, M and Adams-Prassl, J, The EU Charter of Fundamental Rights in the Member States (Oxford, Hart, 2020), pp 560–561CrossRefGoogle Scholar.
53 For further detail, see my Opinions in Consorzio Italian Management and Catania Multiservizi, C-561/19, EU:C:2021:291, and Van Ameyde España, C-923/19, EU:C:2021:125.
