The European Judicial Organisation in a New Paradigm: The Influence of Principles of ‘New Public Management’ on the Organisation of the European Courts

• Published date: 01 November 2008
• Author: Elaine Mak
• DOI: http://doi.org/10.1111/j.1468-0386.2008.00437.x
• Date: 01 November 2008

The European Judicial Organisation in a

New Paradigm: The Influence of Principles

of ‘New Public Management’ on the

Organisation of the European Courts

Elaine Mak*

Abstract: Recent reforms regarding the European Courts raise the question in which way

do ‘new public management’ principles influence the European judicial organisation and

how is a balance struck between these principles and classic ‘rule of law’ principles? The

article first presents a classification of these types of principles in the framework for

discussion regarding the European judicial organisation. Starting out from two para-

digms, an inquiry is made into the status of the two sets of principles in the present-day

European ‘constitutional’ framework. Second, the interaction of principles is investigated

with regard to a number of current dilemmas, including the demarcation of the judicial

domain, the management of the Courts and the distribution of judicial competences.

I Introduction

In the present-day context, the Courts of the EU are faced with a new challenge.

Notwithstanding the problem of rising case loads and the growing complexity of cases,

the Courts are pressurised to hand down, within a reasonable time, decisions which are

sufficiently reasoned and taken in the most competent way. It is true that the Courts

have firmly established their functional legitimacy as guardian of the uniform interpre-

tation of Community law.1However, the preservation of the Courts’ institutional and

discursive legitimacy asks for a modernisation in order to adapt the European judicial

organisation and its argumentative practice to new ‘quality standards’.

At the basis of this renewed ‘quest for legitimacy’2lies the growing societal and

political focus, in European legal systems, on the realisation of ‘new public manage-

ment’ values like transparency, effectiveness and efficiency. Public administration,

including the judiciary, has to supply its services in accordance with standards of

timeliness, completeness, courtesy, consistency, accessibility, accuracy, and responsive-

* PhD in Comparative Constitutional Law (Erasmus University Rotterdam). Contact: mak@law.eur.nl.

1However, the role of the European Courts vis-à-vis highest courts on the national level remains a

controversial issue. Cp V. Skouris, ‘The Position of the European Court of Justice in the EU Legal Order

and its Relationship with National Constitutional Courts’, (2005) 3 Zeitschrift für öffentliches Recht 323.

2Cf M. A. Loth, ‘Courts in Quest for Legitimacy: A Comparative Approach’, in M. Malsch and N. van

Manen (eds), De begrijpelijkheid van de rechtspraak (Boom Juridische uitgevers, 2007).

European Law Journal, Vol. 14, No. 6, November 2008, pp. 718–734.

© 2008 The Author

Journal compilation © 2008 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

ness.3In this light, the guarantee of ‘achieved’ values like the independence and impar-

tiality of the judiciary is put into second place.

Current debates and reforms regarding the Courts of the EU take place in light of the

concern for effective judicial remedies. The reforms include the right of standing before

the Courts, the introduction of new management structures in the European judicial

organisation, and specialisation of the allocation of cases and judges to the Courts.

These developments incite reflections on the judicial competences available to the

Courts and on the institutional organisation of these competences.

From the perspective of constitutional theory, the development towards a European

judicial organisation which incorporates ‘new public management’ values demands an

inquiry into the principles underlying this judicial organisation. An inquiry is necessary

into the compatibility of ‘new public management’ values with classic ‘rule of law’

principles like separation of powers and judicial independence and impartiality. The

balancing act required with regard to the modernisation of the European judicial

organisation is performed in a constitutional framework based on these new manage-

ment values and classic ‘liberal democratic’ values. This constitutional framework

limits the choice of legitimate solutions for the judicial organisation.

The question arises of which possibilities exist to make the ‘new’ principles for the

judicial organisation compatible with classic ‘rule of law’ principles. Principles for the

regulation of power have to be made compatible with principles regarding the realisa-

tion of an optimally transparent, effective and efficient public administration. Differ-

ently from most Member States, the European judicial organisation is still in the

process of a further elaboration of classic ‘rule of law’ principles in its institutional

arrangements.4The European rule-makers for the judicial organisation are therefore

faced with the double task of optimising ‘rule of law’ principles and incorporating ‘new

public management’ principles.

The object of the present article is to clarify which types of principles play a role with

regard to the organisation of the European Courts and to determine to what extent

these types of principles determine the European judicial organisation in the present-

day context. To that purpose, a classification is made of types of principles for a

legitimate judicial organisation in the European ‘constitutional’ framework, followed

by an inquiry into the interaction of these principles.5An analysis is made first of the

paradigms for discussion of the European Courts’ organisation and the principles

featuring in these paradigms (section II). Second, the balance of principles in the

shifting paradigm for the discussion is analysed with regard to three dilemmas of

judicial organisation on the European level (section III). The article concludes with

some remarks and recommendations concerning the legitimacy of the European judi-

cial organisation in the light of the ‘new public management’ paradigm (section IV).

3W. A. Lindsay and J. A. Petrick, Total Quality and Organization Development (St. Lucie Press, 1997), 55;

G. Y. Ng, Quality of Judicial Organisation and Checks and Balances (Intersentia, 2007), 26.

4The EU’s minimum standards regarding classic ‘rule of law’ legitimacy can be derived from the Copen-

hague criteria regarding the accession of new Member States to the Union: available at http://europa.eu/

scadplus/glossary/accession_criteria_copenhague_en.htm.

5This analysis builds on the results of a previous research concerning the judicial organisations in several

Member States: E. Mak, De rechtspraak in balans. Een onderzoek naar de rol van klassiek-rechtsstatelijke

beginselen en ‘new public management’-beginselen in het kader van de rechterlijke organisatie in Nederland,

Frankrijk en Duitsland (Wolf Legal Publishers, 2007).

November 2008 The European Judicial Organisation in a New Paradigm

© 2008 The Author 719

Journal compilation © 2008 Blackwell Publishing Ltd.