I. A BIRD'S EYE VIEW OF SELECTED GRAND CHAMBERS
There appear to be two main reasons, relating to functionality, which provide justification to a supreme court to sit in a larger composition than usual, namely in a grand chamber. Those justifications relate to the type of jurisdiction in question, including the size, structure, and degree of specialisation, and the size of that supreme court's docket. More broadly, they are rooted in the type of judicial system and legal culture within which that court operates.
A. Enhancing legitimacy in important cases
On the one side of the spectrum, there are single panel supreme courts. Such courts, typically composed of seven or nine judges, are still able to sit all together as a full court. They do not create any grand chamber or an enlarged composition. They are themselves that composition. They sit by default in full court. Naturally, for such an arrangement to be operational, a court within such a system must have a procedure for selecting the cases it will hear every year on merits.Footnote 1 The archetype of such a court is the Supreme Court of the United States. Composed of nine justices, the cases heard on merits are decided by the full court composed of all nine justices. Similarly, the Australian High Court (seven judges) may represent another example in this category.
Interestingly, the supreme jurisdiction operating in the cradle of the common law system, namely the Supreme Court of the United Kingdom, cannot really be placed under the same heading. Currently composed of twelve judges, its default judicial composition is that of a panel of five judges. However, the court may sit in extended panels of seven or nine judges, or, indeed very exceptionally, as a full court.Footnote 2
The criteria for when a case might be assigned, internally within the court, to an extended formation are listed on the website of the Supreme Court. They include the following scenarios: (1) if the Court is being asked to depart, or may decide to depart from a previous decision; (2) a case of high constitutional importance; (3) a case of great public importance; (4) a case where a conflict between decisions in the House of Lords, Judicial Committee of the Privy Council, and/or the Supreme Court has to be reconciled; or (5) a case raising an important point in relation to the European Convention on Human Rights.Footnote 3
It is worth noting that the criteria are simply listed on a website, but nowhere written down in a statute or even in case law.Footnote 4 The website specifies what appears to be a convention followed within the Supreme Court and embraced already previously when composing the judicial panels for individual cases within the Appellate Committee of the House of Lords. The enhanced degree of collective judicial decision-making and deliberation,Footnote 5 plugged into a system which has traditionally been known for its strong judicial individualism,Footnote 6 is certainly interesting.
As to the justification for convening an extended composition of the Supreme Court, the stated criteria appear to combine two rationales: ensuring unity and coherence of the case law (including the potential for explicit departure and overruling), on the one hand, and cases of great importance, which appear to merit broader reflection, on the other.Footnote 7 That said, in quantitative terms, it appears that enhanced legitimacy for important cases (however defined and captured) clearly prevails.
B. Ensuring uniform case law
The rationale in most continental supreme jurisdictions for establishing grand chambers tends to be the uniformity of case law. A typical civilian supreme jurisdictionFootnote 8 is a multi-panel large structure. The number of its judges oscillates anywhere between a few dozen and over a hundred members in some (Latin) continental countries. Irrespective of the individual size, the common denominator and the justification for grand chambers in such systems is functional: to establish an authoritative arbiter who decides on interpretative conflicts amongst the individual chambers of the given court.
The extended chamber of the Czech Nejvyšší správní soud (Supreme Administrative Court) might provide an example under this category. The bulk of cases coming before that court is decided in chambers composed of three judges. There are currently ten such chambers, with the total amount of judges being around 30. Thus, within the continental civilian word, the Czech Supreme Administrative Court is not in fact a very large court.
However, the desire for uniformity and the prevention of divergent legal opinions emerging from within the ten chambers, deciding in parallel around 4,000 cases a year, is inscribed very strongly into the composition and the procedure of the extended chamber. The extended chamber has seven members, selected by the president of the court.Footnote 9 Normally, they would include the President of the Court, the Vice-President of the Court, and five other members of the Court, typically chamber presidents.
The extended chamber may only be seized by a chamber of three judges, not by the individual litigants. It is always the decision of the chamber of three judges whether or not they will refer the case to the extended chamber, which must be justified in detail and in writing. There is only one reason for referring a case to the extended chamber and it is stated in the law: divergence in legal opinions already expressed in previous decisions of the Supreme Administrative Court.Footnote 10 The divergence might be of two kinds: detected divergence and anticipated divergence. In the first scenario, a chamber of three judges, when deliberating a case and reviewing the existing case law it is called on to apply to that case, detects that there are, presumably non-intentional, divergences in the decisions previously delivered, typically across the chambers. In the second scenario, a chamber of three judges is aware of the existing previous case law but wishes to depart from it. In such circumstances, unless it is able to (reasonably) distinguish the previous case(s), it is bound to submit the matter to the extended chamber, for a reasoned and explicit departure from the previous line of case law.
The Czech Supreme Administrative Court model is indeed rather strict vis-à-vis the expected standards for uniformity and coherence of the case law of administrative courts. A number of other continental supreme courts, including, in fact, the Czech Nejvyšší soud (Supreme Court) and the Czech Ústavní soud (Constitutional Court), are themselves not that demanding in practice when it comes to triggering their respective grand chamber (or plenary, in the case of the Constitutional Court) mechanism.Footnote 11 Moreover, there are clear differences across the European Continent: Latin continental supreme jurisdictions, themselves deciding tens of thousands of cases annually, are perhaps not that concerned about the unity of their case law, which is, in a way, simply unattainable in view of such figures.Footnote 12 The concerns about the uniformity of case law horizontally, within one and the same supreme jurisdiction or branch of judiciary, is indeed primarily a concern of jurisdiction within which the output at the supreme level is counted in the thousands, and not in the tens of thousands. In the latter scenario, the dream of case law uniformity is perhaps no longer tenable in practical terms.
C. A Strasbourg mélange
Moving to the European and international level, there is the Grand Chamber of the European Court of Human Rights (‘ECtHR’).Footnote 13 At the institutional level, it could be assumed that the creation of a grand chamber within the ECtHR is rather fitting with the continental logic. The ECtHR is currently composed of forty-seven judges who are divided into five sections, with each of those sections containing within itself a chamber of seven judges and a judicial committee of three judges. It may thus appear entirely logical that a grand chamber of seventeen judges forms the largest judicial formation within that court to settle case law disputes and guard the unity of the case law.
However, a closer inspection reveals a number of intriguing elements in the design of the ECtHR's Grand Chamber, which makes it difficult to place that grand chamber under any distinct model or logic similar to that found at the national levels. First, there are two distinct ways in which a case might reach the Grand Chamber: either the (seven) judges chamber relinquishes its jurisdiction in favour of the Grand Chamber at any time before it has delivered its judgment under Article 30 of the Convention, or a case is referred to the Grand Chamber at the request of any party to the case after a judgment of a chamber has been delivered pursuant to Article 43 of the Convention. In the latter scenario, the system is effectively a filtered appeals procedure within the ECtHR.Footnote 14
Second, the rationale for a case potentially going to the Grand Chamber is also more diverse. The reasons why a case would reach the Grand Chamber is in fact laid down in the Convention: ‘a serious question affecting the interpretation of the Convention or Protocols thereto’ (Article 30) or ‘a serious question affecting the interpretation of the Convention or Protocols thereto, or a serious issue of general importance’ (Article 43(2) of the Convention). Thus, in spite of the slightly different wording, it appears that the key rationale for going to the Grand Chamber is the general importance (legal, societal, political) of the issue raised by the case.Footnote 15
Thus, even if one could structurally assume continental concerns being the primary reason for the existence of the Grand Chamber at the ECtHR, that is to say ensuring case law coherence within a culturally diverse court of 47 different legal minds with quite a considerable docket in quantitative terms, the role of the Grand Chamber within the ECtHR is more varied. It appears to be based on two similar overarching concerns already outlined above with regard to the UK Supreme Court: (1) securing the unity and coherence of the case law while also allowing for (2) enhanced legitimacy of individual decisions in cases of particular significance.
There are two additional elements that ought to be mentioned. First, as to its quantifiable practice, it would appear that the Grand Chamber serves as a de facto appellate system within the Strasbourg Court. Approximately two in three cases decided by the Grand Chamber are those referred pursuant to Article 43 of the Convention. Only around one in three cases come before that formation on the basis of relinquished jurisdiction under Article 30 of the Convention.Footnote 16 Second, even though there are two procedural avenues for reaching the Grand Chamber, as well as rather broadly defined scenarios in which that chamber may be seized, the overall docket of the Grand Chamber of the ECtHR remains relatively low: it contained about 1.5% of the total cases decided annually on merits by the Strasbourg Court.Footnote 17
II. THE TWO RATIONALES FOR GOING BIGGER
When looking across Europe and overseas, two broader, operational justifications for supreme jurisdictions to sit in grand chambers emerge: enhancing legitimacy for important individual decisions and/or ensuring the unity and coherence of the case law. The dividing line which exists is perhaps not necessarily between common law jurisdictions, on the one hand, and the continental civilian ones, on the other. There is indeed a large overlap, but it is not an exclusive one: the UK Supreme Court, as well as the ECtHR, contain elements from both worlds. There are also examples of other common law higher jurisdictions sitting en banc in order to ensure the uniformity and internal unity of their case law and approach, such as, for instance, the (larger) US Courts of Appeals.Footnote 18 By contrast, there are equally some jurisdictions on the European Continent that sit by default ‘in plenary’, such as the French Constitutional Council.
The dividing line thus appears to be primarily of an operational, practical nature. Size matters. On the one hand, the smaller apex jurisdictions, typically those which do select their case law, and hence can prioritise quality over quantity, do not commonly make use of enlarged formations, provided they even can. They simply do not need them in order to unify their case law since the decisions on merits which they deliver annually are not that numerous. Equally, in smaller courts, one should not underestimate the informal possibility of reaching an agreement over a cup of coffee, instead of having to resort to formal mechanisms. However, in cases where such jurisdictions can and indeed do decide to sit in a larger than usual formation, it is to provide enhanced legitimacy for a decision. The legitimising effect is, in essence and at its core, a majoritarian one: more judges have participated in this significant case, thus more votes were needed in reaching the given decision,Footnote 19 and hence the decision is endowed with a broader consensus, which thus results in greater legitimacy.
On the other hand, there are the larger, multi-panel jurisdictions. Often tasked with deciding not only hundreds of cases a year, but thousand or even tens of thousands of cases annually, their primary concern in forming grand chambers is (at least for some) the unity and coherence of their case law. Within such courts, a grand chamber is the ‘court within the court’. In this way, even continental supreme courts may silently establish, in effect, a common law styled supreme court: one that may effectively select the cases it will hear since the assigning or forwarding of a case to a grand chamber tends not to be a matter of right for parties, but self-selection or filtering by that court or part thereof. Moreover, the deliberations within such a privileged body should ideally be one that a true supreme court ought to carry out: having more time to go deeper into the detail, while focusing on pure issues of law. Thus, paradoxically perhaps, a common law supreme court might in fact be hidden within a large civilian one under the name of a ‘grand chamber’.
However, the considerations above may perhaps not be attributable only to the matter of case selection and the corresponding size of a supreme jurisdiction. There are deeper layers, as well as inherent tensions. On the one hand, if what one seeks in a grand chamber decision is enhanced legitimacy because it is a majoritarian decision, then logically the key is representatives of that body. Ideally, such a grand chamber should include either all judges of a given jurisdiction or as many as possible. There is, however, a clear tension between that rationale and feasibility. Since involving all judges is often not actually practically possible in larger courts, because courts cannot deliberate like parliamentary assemblies, grand chambers become smaller than the total number of judges of that given court. As a result, such formations are deprived of a large part of their initial legitimacy, precisely because they no longer represent the majority. If, for instance, such a court is composed of 30 or 40 judges, but the grand chamber composed of only 7, 11, or say even 15 judges, then ultimately, a fraction of the total number of the judges are in a position to bind the rest of the court. In such a scenario, the structural justification for having such a type of grand chamber in the first place, namely representation and majoritarian legitimacy, starts dissolving. Footnote 20
On the other hand, in the systems where the purpose of the grand chamber is to unify the case law, representativeness might be an issue, but rather for reasons of selection and selectivity (who exactly will be chosen to sit on the grand chamberFootnote 21), and not necessarily as a matter of the overall numbers (that such a formation would be criticised for not including all the judges of the relevant court). After all, if one takes the already mentioned example of the Czech Supreme Administrative Court, in extremis, just four judges forming the majority in a seven members panel of the extended chamber of that court can bind all 30 or so members composing that jurisdiction, and indirectly all the lower courts and administrative authorities. That can hardly be seen as being representative of the entire judicial body. However, the key purpose of that extended chamber is to coordinate and to unify, not to represent. Those are the reasons which fuel its legitimacy, based not on judicial numbers, but on the necessary service provided to the system—to unify the case law.Footnote 22
In summary, different purposes produce different kinds of authority and legitimacy. At the highest level of abstraction, those considerations may be seen as anchored in a different vision of law and the correspondingly different role of supreme courts themselves. In systems and cultures where law is primarily perceived as a matter of value judgment, then emphasis might be placed on the fact that certain indeterminate and difficult value judgments are being made by the appropriate majorities. If what matters are values, which themselves essentially come down to personal characteristics and convictions of the individual judges making the decision, then reserving certain decisions to special majorities alters the judicial median within the formation: the outcome should reflect the overall societal majority. The end result is therefore supposed to represent a mainstream view. Conversely, in systems that believe in more technical, and in this sense positivist, nature of the law, where law is above all supposed to be internally coherent and predictable, uniformity is the key value. If that vision is pushed to an extreme, who exactly brings about that uniformity and safe haven of predictability is perhaps of secondary importance, as long as there will eventually be one.
III. THE LUXEMBOURGISH SONDERWEG?
Against this comparative background, the Grand Chamber of the Court of Justice (‘GC’) is not entirely easy to place.Footnote 23 The relevant legislative texts say little in terms of the exact role that the GC is supposed to fulfil. Article 16 of the Statute of the Court establishes the composition of the GC: 15 judges, including the President of the Court and the Vice-President, with the President of the Court presiding the GC. Rather intriguingly, and not without relevance in terms of the reasons for having a GC, Article 16 of the StatuteFootnote 24 also provides that: ‘The Court shall sit in a Grand Chamber when a Member State or an institution of the Union that is party to the proceedings so requests’.
It is the Rules of Procedure of the Court that, apart from setting in greater detail the composition of the GC and the necessary quorum,Footnote 25 state the only and rather general criterion for a case being assigned to the GC: if ‘the difficulty or importance of the case or particular circumstances’ so require.Footnote 26 What is not provided for, unless one were to seek to subsume it under ‘particular circumstances’, is the role of the GC in securing unity and coherence of the case law, including acknowledged and open departures or overruling of previous precedents.Footnote 27
Thus, securing the unity or uniform application of EU law by way of ex post arbitrating between the divergent interpretations reached by the individual chambers of five or even three judges chambers is not the function formally assigned to the GC. This is not to say that that specific function may not occasionally be exercised. On the one hand, a decision of the GC can seek to fulfil that role ex ante, that is to say by pre-emptively adjudicating on a certain matter so as not to allow a divergence of legal opinions to come into existence in the first place. On the other hand, there have been cases in the past, although not many, in which the GC ex post unified the approach of the Court by expressly overruling previous decisions of the smaller chambers.Footnote 28 The suggestion here is that there is no mechanism, nor a practice, of referring cases to the GC in a manner comparable to that described above as regards civilian apex courts in which a detected divergence in the approaches of chambers of five judges is in itself a sufficient reason for a case to be assigned to the GC.
A. The (hidden) Constitutional Court of the Union
Nonetheless, this does not mean that there are not other, and indeed rather robust, structural reasons for having the GC at the Court. In fact, three reasons might be singled out.
First, up from a certain number, and it might be even acknowledged that 15 judges sitting at present in the GC is perhaps already such a number, a greater number of heads is unlikely to translate into better reason in terms of quality and even clarity of reasoning.Footnote 29 More heads certainly amount to more accumulated reason in terms of wisdom. However, as far as quality of reasoning is concerned, the more pertinent proverb is perhaps that one of too many cooks spoiling the broth. What is, however, likely to be present is a broader consensus on the outcome reached. As indicated previously, a greater number of judges that are present and voting naturally alters the median position represented in the chamber. In practical terms, this may indeed amount to a rather intriguing dissociation between the (sometimes even almost absent) substantive reason in a large formation decision (because in order to reach such a consensus, more and more had to be gradually been chopped out from the reasoningFootnote 30), and the enhanced majoritarian legitimacy for the substantive outcome which ends up simply being laid down in the operative part.Footnote 31 In any case, however, a GC of 15 judges certainly endows the resulting decision with a greater majoritarian legitimacy.
Second, consensus building is arguably even more important in a multinational environment, especially one built on majoritarian decision making equally present in the judicial forum.Footnote 32 Within such a setting, a broader consensus is likely to translate into broader acceptance of the outcome reached, in particular perhaps with regard to the Member States. It is also in this manner that one might conceptualise the aforementioned ‘right to the Grand Chamber’ of the Member States or the institutions, enshrined in Article 16 of the Statute of the Court of Justice. While that provision makes little sense if the GC were conceived of as an instrument securing the coherence and unity of the case law of the Court, it starts to make sense if the GC is seen as a privileged forum for privileged applicants. However, in that latter dimension, the GC indeed becomes more of a diplomatic, almost special arbitration body that may be called together if a privileged party considers a case (subjectively) important. Such a party is effectively stating that they will not accept a ‘normal’ decision of the Court, but only a decision with a qualified quorum guaranteeing an enhanced representation from within the Court, and thus indirectly from the Member States, to tell it what the law is.
Third, another way of conceptualising the operation of the GC is to see it as the (constitutional) court within the (generalist) Court. Indeed, when looking at the overall docket of the Court, and then focusing closely on the type of cases and questions that usually end up in the GC, the latter ones tend to be (although not exclusively) of what could be described as a constitutional nature. Within such a vision, the Grand Chamber is there to adjudicate on cases of special, institutional or fundamental rights importance, raising constitutional issues of interpretation of primary (constitutional) law or concerning the issues of validity or overall scope of application of important pieces of secondary legislation. For such types of cases, recourse should be had to a larger formation, where greater consensus and majoritarian legitimacy are needed.
Certainly, it is fair to admit that what is a ‘constitutional question’ within such a context can hardly be identified in any clear-cut terms. However, the absence of any clear boundary in this regard is not unusual. Even specialized and concentrated constitutional jurisdictions on the European Continent, whose jurisdiction will sometimes be limited to just matters of ‘constitutional nature’, have never been able to draw a line, in substantive terms, between what is an issue of ‘constitutionality’ and what is a matter of ‘mere legality’.Footnote 33
However, the constitutional logic comes even more strongly to the fore when the GC is not perceived as the only final destination, but rather as a point in a continuum of 3 judges, 5 judges, 15 judges in the GC, and 27 judges sitting as the full court. Indeed, while ‘normal’ constitutional cases would be assigned to the GC, there are also the ‘super’ constitutional cases that affect the basis of the function of the entire EU legal order, Footnote 34 or the operation of the Union in the outside world, which would be assigned to the full Court.Footnote 35 From a historical perspective, the GC is a continuation of the former full court before the 2004, 2007, and 2013 enlargements, which almost doubled the (judicial) membership of the Court and made deliberations within the full Court too burdensome.
In short, the overall emerging picture of the role of the GC of the Court is the authoritative settling of important, typically constitutional questions of EU law, for which larger consensus generating enhanced legitimacy is considered necessary within the multinational legal environment of the Union. The key criterion for assigning a case to the GC is its importance in terms of its legal, political, or constitutional significance. Potential incoherence in the case law (of smaller chambers) is not a relevant criterion, at least not in itself. Only if that incoherence is present when it comes to a legal question that is in itself important will that incoherence become relevant in attributing the case to the GC, placed nevertheless under the heading of a legal issue of importance, not one of uniformity of the case law in itself.
However, at least with regard to the constitutionally significant issues, coherence of the case law is still sought by and within the GC. Yet, in terms of its execution, it is supposed to happen ex ante rather than ex post. In contrast to a system in which incoherence of case law is first detected and then (or rather because of that) a case is brought before the grand chamber, the approach of an ex-ante unification of the case law is to first lay out the overall approach of the Court in the GC. That general approach is then to be applied, as to its specific details and concrete articulation, in smaller chambers, typically in the default composition of five judges. That is naturally more the case in institutional settings of the Court, in which a particular case proceeds to the GC by attraction: if indeed seen of particular legal significance, the plenary meeting of the Court will attribute the case to the GC, which will then issue the only decision in that case.
The foregoing places the role of the GC within the Court on solid conceptual grounds, albeit with two caveats: structural and operational. In structural terms, defining the role of the GC in this way drives that solemn formation away, perhaps paradoxically, from the concept of a court, at least as understood in the somewhat more positivistic legal tradition. Setting (1) by majority rule and based on a broad consensus with (2) rather concise reasons (3) general and rather abstract rules, which are then to be applied by others as to the concrete details of each individual case, tends to be the functional definition of a legislature rather than that of a court, even a constitutional court. Second, there arguably also might be some operational limits to that role in a somewhat changed institutional and legal environment, to which I now turn.
B. The changed operational environment
First, the institutional context has changed with time. Following the successive enlargements of 2004, 2007, and 2013, the number of judges of the Court increased to 28, reduced to 27 as a consequence of Brexit. The post-Nice judicial structure had to react to those developments given that the enlarged Court was no longer effectively able to deliberate as one judicial body. The default formation of the Court thus became chambers of five judges, within which are hidden a further five chambers composed of three judges.Footnote 36 Leaving aside the GC itself, the Court of Justice can thus sit in ten different smaller judicial formations in parallel.
Second, over the course of the past decade, the docket of the Court has steadily risen. In 2019, the number of new cases stopped a few digits short of 1,000 new cases.Footnote 37 The Court does not possess any means of filtering the cases it will hear. There is indeed the recently introduced admissibility system for certain types of appeals.Footnote 38 However, that faculty is limited to certain appeals only, which represent a mere fraction of all cases brought before the Court. Moreover, and rather importantly, even for those appeals that are to be filtered, the Court is still obliged to provide written reasons as to why it takes the decision not to allow the case to proceed to a further examination on merits. As such, each of those cases (almost 1,000 each year) require a reasoned decision.Footnote 39
Third, there is the modified nature of EU law itself. In a nutshell, the scope, depth, and amount of EU legislation has changed and increased dramatically over the last twenty years or so. Not only has EU law expanded into so many new areas of law, but the detail and ‘regulatory density’ of secondary law measures have increased considerably. Thus, in contrast to the cases which came, for example, in the 1980s or even in the 1990s, the main role of the Court today is perhaps not so much focused on proactively opening up new areas of law, often based on broadly stated constitutional or primary law principles or Treaty provisions. The cases put before the Court today require ever more navigating through a rather complex web of detailed secondary law instruments, seeking to establish at least some sort of internal order and consistency.
The combination of these factors indicates that the Court at the present time is, in terms of its effective functioning, a rather civilian supreme court.Footnote 40 The non-negligible bulk of cases that it receives on an annual basis is being decided in different parallel formations. Moreover, there are certainly the constitutionally significant cases that, from time to time, push the Court to the uncharted waters (or rather the high seas) of primary law and complex constitutional deliberations. However, there are progressively more and more cases which contain detailed, technical questions of interpretation of this or that piece of secondary legislation, coming up again and again with somewhat different factual circumstances.Footnote 41 Within such a system, it is perhaps no secret that whatever weight might be placed on the value of precedent in the decision making and deliberations of an institution, from a certain number of cases being decided in parallel by different judges, there will inevitably be divergence.
The final important variable is the actual quantitative practice of the GC in the past. Over the past three years (2017, 2018, and 2019), the number of cases assigned to the GC annually has been between 80 and 90 cases. If one were to compare those figures with the overall number of cases that were being lodged before the Court in the preceding year,Footnote 42 it would appear that on average, about 11% of all cases lodged before the Court end up before the GC today. Such figures are slightly higher than those in the past.Footnote 43
However, just about under 100 cases decided per year is, as a matter of fact, if any comparison can be drawn in this regard, the normal docket of a ‘common law’ supreme court.Footnote 44 Thus, this would yet again hint at the practice of an inherently civilian apex court. The bulk of cases is being decided in parallel in smaller formations, while the ‘real supreme’ court, that is effectively able to select its docket and ought to go deeper and more in detail in its deliberation and reasoning, is the grand chamber hidden within that court.
C. Coherence of the case law: ex ante or ex post?
At this point, it becomes apparent that the self-identified role for the GC pushes in a somewhat different direction than the changed operational environment set out above. On the one hand, there is the role of a GC in the specific multinational, diplomatic environment of the Union, catering to the need for a constitutional court in important cases, and allowing it to rise above the avalanches of ‘normal’, technical disputes. On the other hand, those, by now indeed an avalanches of, normal cases generate a separate need for coherence and uniformity across the thousands of decisions handed down by the Court over the years. There is no doubt that the former use of the GC at the Court has its merits and reasons. It nonetheless comes with costs attached. I shall mention three of them below.
First, there is the obvious cost in the allocation and the use of the work force. There are only so many cases in which a judge, unless that judge happens to a true Dworkin's Hercules, can reasonably provide useful input. The implied logic and promise for a solemn formation is the quality and the depth of the deliberation. Indeed, as already outlined with regard to the civilian apex courts, the ability to choose the cases that will be dealt with, and within those cases, to be able and expected to go into greater depth is what sets grand chambers apart and places them above the rest of the (normal) chambers of a civilian supreme court. Yet, in how many of such cases would that extra treatment be reasonably possible? Certainly, cases do not come before the Court, in particular those that arrive by means of the preliminary ruling procedure, because they are easy. However, what then is a ‘difficult’ or ‘important’ case within such a context, for which special authority or special capacities are needed? Does it amount to about 11% of the overall docket?Footnote 45
Second, there is the issue of coherence and stability of the case law. In this respect, reference is not made to the (horizontal) coherence of the ‘normal’ or technical case law of the smaller chambers, which, if the GC is considered to be the constitutional court of the Union, is not its primary business. Instead, what is meant is the coherence and stability of the case law of the GC itself. The latter issue arises out of two factors: on the one hand, if a GC decides over 80 cases each year, that corpus of case law itself begins to create quite a body of precedents over the years. On the other hand, the somewhat variable composition of that body is something to consider. After some initial soul-searching following the establishment of the GC in 2004, resonating in some scholarly criticism,Footnote 46 the 2012 reform of the Rules of Procedure of the Court introduced a certain ‘democratisation’, or greater representativeness, in the composition of the GC: more judges, and not necessarily presidents of chambers, were to sit in the GC.Footnote 47 First, the number of judges forming the GC was increased from 13 to 15. Second, whereas previously all the presidents of chambers of five judges sat in the GC, following the 2012 reforms, only three of those presidents of chambers now sit in the GC.
In practical terms, that change in the constitution of the GC means that there is not only one GC. The GC is composed for each individual case according to a pre-determined roster.Footnote 48 It might thus happen that in one GC case, 15 judges sit, but two or three months later, in another GC case, even one relating to a similar legal question, there might only sit a handful of judges who sat in the previous case: the President, the Vice-President, one president of a chamber of five judges, and one another judge, with the rest of the GC composed of other judges, who did not sit in the previous case on the matter. It may then be the case that such an ‘other’ GC has a different view on the legal matter submitted to its consideration. Certainly, a GC composed in such a manner cannot be accused of not being, as far as is possible, representative and ‘democratic’. However, such a GC ceases to be a stabilising pillar within the Court. Instead, it may itself be a source of case law instability.Footnote 49
Third, when is a legal problem ripe for the intervention of a grand chamber? When the role of the grand chamber is to ensure the coherence of case law, the answer is clear: when there is a divergence. In the vision of a GC as a diplomatic, constitutional court, or indeed more broadly in the common law logic of majoritarian, political legitimacy of a grand chamber that is reserved for important cases, the case must indeed be of fundamental importance. Nevertheless, what then typically happens in any national legal system, before a case arrives before an apex court, is that there are previous decisions on that or similar matters: either from lower courts (first instance, appeal) in the same case or some precedents on similar matters from within the same court. The enhanced majoritarian legitimacy will then be sought for choosing a direction from amongst a range of crystallised options, not really for searching for a new direction.
However, in this regard, the model of cooperation instituted between the national courts and the Court under Article 267 of the Treaty on the Functioning of the European Union (‘TFEU’) is indeed unique and different in its parameters. It sometimes happens that in cases on preliminary rulings, the genuine, often complex issue of EU law crystallises only in the proceedings before the Court. If such an issue is also a novel one, involving the interpretation of new provisions of EU law, often in complex technological fields, it happens that the GC is faced with an entirely novel issue without there being any guidance at all as to the possible and potentially reasonable solutions. Of course, there are the submissions of the parties.Footnote 50 There is also the Opinion of an Advocate General which, if written well, should explore all the potential avenues and discuss their (de)merits. In this regard, I cannot but recall the, while perhaps somewhat disturbing in relation to the physical integrity of an Advocate General, still very pertinent metaphor of my former learned colleague Nils Wahl, who described the job of an Advocate General as a dog running through a legal minefield.Footnote 51
However, even with all of that assistance, it might happen, and in novel areas of law perhaps more frequently than in others, that the GC, with all its assembled collective wisdom, might get it wrong when faced with a problem for the first time. That will not be because the wisdom was not there. It will be because at that time, nobody knew or could have known, since the range of conceivable solutions or the practical implications of a certain interpretation were not articulated at such an early time. It was simply too early for such an issue to come up for what should be the ultimate settlement, or at least a mid-term settlement, of the underlining legal question.
That point brings the discussion back to the difference between ensuring coherence ex ante (setting the grand principles) versus ex post (choosing a solution from the already recognised and articulated ones). There is certainly something alluring by the idea that problematic legal issues ought to be settled at the outset, with all the subsequent cases of individual application sticking to the principles and approaches already decided. The only problem is that, as the daily fate of any legislation designed in a similar way demonstrates, such a degree of legislative optimism never works in practice. After all, it is typically the interplay between the ex-ante setting of general rules and ideas (by the legislature) with the ex-post exploration of their implications in the individual cases and if need be, their correction (by the judiciary) that will reveal the real problems in a legislative design. No legislator, however enlightened, is able to foresee and settle such issues authoritatively beforehand.
That is why the role of grand chambers, in whichever of the national ideal models discussed in the previous sections, is normally to choose, not to search. The trial-and-error exercise inherent in the initial exploration and tentative articulation of ideas is perhaps best left to smaller chambers, or in national systems to lower courts, which might usefully, even for several years, explore ideas and directions. Only when there is a sufficient reservoir of ideas and of examples, the good as well as the bad ones, will the moment be right for a grand chamber to step in and choose.
Certainly, there are drawbacks to such logic. The GC as the ex-post arbiter of solutions comes with the price of possible temporal uncertainty when a solution is being considered by the individual chambers. However, the role of the GC as the ex-ante researcher comes with an arguably even heftier price tag: the ultimate, large and solemn composition of a court, instead of being the arbiter of last resort and the stabilising anchor, starts contradicting and overruling itself, with no real authority left within the system.
D. Conclusion: Of sniffing dogs and land mines
Viewed against the comparative inspiration and the categories outlined in the previous sections of this article, the current practice of the GC of the Court finds itself in a bit of a no man's land. On the one hand, there certainly remains the structural justification for the GC operating as a (hidden) Constitutional Court of the European Union, generating additional majoritarian legitimacy in significant cases. However, that rationale becomes diluted by the number of cases that are assigned for such special treatment at present. Moreover, strictly speaking, the structural justification of the majority of all judges of a court is in fact not present within a body where eventually, even if striving for as broad a consensus as possible, a majority of eight within the GC of 15 might be able to bind a court of 27 judges.
On the other hand, with the changed legal landscape of EU law, as well as the organisation of the Court, the issue of horizontal coherence in the, by now indeed, avalanches of ‘technical’ cases, embodying the daily bread and butter of the Court,Footnote 52 comes rather strongly to the fore. The fact that the latter rationale is, within the current institutional set up, not really catered for, might perhaps be of particular concern to the majority of the Court's national judicial interlocutors who are themselves, after all, civilian judges. Within such a mind-set, coherence and unification of the case law carried out on the basis of clear and predictable criteria could be said to be valued more than the common law diplomatic flexibility.
Escaping no man's land requires a choice to be made in terms of a direction (or, alternatively, at least knowingly deciding to remain exactly where one is because that is the correct place to be). The two directions discussed in the previous sections of this contribution show potential alternative paths. First, there is the possibility of staying with the majoritarian legitimacy of a constitutional court for genuinely important cases in multinational environments. However, in such a case, the number of ‘important’ cases would have to be considerably scaled down. Otherwise, the extra legitimising effect of a solemn formation is simply lost. A decision of the GC is no longer the loud thunder of a cannon ball being fired, immediately turning all heads, but rather the daily noise that hardly anybody is paying much attention to anymore. Second, the Court could also embrace what it has effectively become since 2004, without yet perhaps fully realising it: a truly civilian supreme jurisdiction which must guarantee the horizontal coherence of all its case law, not just in matters that might be labelled as constitutional issues. That might be in particular the case as regards requests for preliminary rulings, where what is required is effectively the formulation and the maintenance of a coherent premissa maior for the decision(s) of national courts.Footnote 53 However, in that latter scenario, the GC should not really operate as an avant-garde explorer, pro-actively jumping at novel issues the first time they arrive. It should rather become the hesitant, but necessary, arbiter who will step in only reluctantly in order to authoritatively choose a solution. It really should not itself become the sniffing dog who occasionally sadly falls victim to an undetected landmine.
