Mimetic Evolution. New Comparative Perspectives on the Court of Justice of the European Union in its Federal Judicial Architecture Leonardo Pierdominici Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Florence, 29 February 2016 European University Institute Department of Law Mimetic Evolution. New Comparative Perspectives on the Court of Justice of the European Union in its Federal Judicial Architecture Leonardo Pierdominici Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Examining Board Prof. Loïc Azoulai, European University Institute Prof. Bruno De Witte, European University Institute Prof. Giuseppe Martinico, Scuola Superiore Sant'Anna - Pisa Prof. Laurent Pech, Middlesex University London ©Title Leonardo Name Pierdominici,Surname, Institution 2015 Title Name Surname, Institution No part of this thesis may be copied, reproduced or transmitted without prior permission of the author Researcher declaration to accompany the submission of written work Department of Law – LL.M. and Ph.D. Programmes I Leonardo Pierdominici certify that I am the author of the work “Mimetic Evolution. New Comparative Perspectives on the Court of Justice of the European Union in its Federal Judicial Architecture” I have presented for examination for the Ph.D. at the European University Institute. I also certify that this is solely my own original work, other than where I have clearly indicated, in this declaration and in the thesis, that it is the work of others. I warrant that I have obtained all the permissions required for using any material from other copyrighted publications. I certify that this work complies with the Code of Ethics in Academic Research issued by the European University Institute (IUE 332/2/10 (CA 297). The copyright of this work rests with its author. Quotation from this thesis is permitted, provided that full acknowledgement is made. This work may not be reproduced without my prior written consent. This authorisation does not, to the best of my knowledge, infringe the rights of any third party. I declare that this work consists of 154654 words. Statement of language correction: This thesis has been corrected for linguistic and stylistic errors. I certify that I have checked and approved all language corrections, and that these have not affected the content of this work. 10 February 2016 Summary The dissertation aims at studying the historical institutional evolution of the Court of Justice of the European Union, the judicial arm of the supranational European community. The Court has been largely analysed, in the multidisciplinary field of European studies, particularly because of its central role in the process of continental integration, for the role played for the evolution of the European Union legal order. The perspective I would like to suggest and to develop in this work tries to differentiate itself by taking a somehow reverse standpoint. First, I will focus on the evolution of the Court itself, more than on the impressive evolution of the EU legal order and its judge-made nature. Naturally, this last aspect will be the background of my analysis. In this respect, I will not be much concerned with the evolution of case law, jurisprudence or the interpretative activity of the European Court but more on the structure and the organization of the Court itself, taken as an institution. Finally, I will try to develop this approach by making use of the precious insights provided by the comparative analysis of law. I will select some specific yetcentral aspects of the structural, organizational, institutional development of the Court in the decades since its foundation and will do this with a purpose. My aim is to show, through a comparative analysis, how the development and institutional evolution of the Court of Justice of the European Union can be considered mimetic - able to engage and somehow internalize the solicitations which came from EU Member States influences of different legal traditions (with increasing strain as the EU grew dimensionally) and responding to global challenges in relation to the increasing role of the international forms of judicial review and of the international judicial review bodies. This proved decisive, I argue, for strengthening the authority of the Court of Justice in its federal judicial architecture. The thesis was submitted for language correction Mimetic Evolution. New Comparative Perspectives on the Court of Justice of the European Union in its Federal Judicial Architecture Leonardo Pierdominici I. Introduction II. Situation for Research and Methodology 1. Situation for Research...........................................................................................................................11 2. Discovery (or Re-Discovery) of Historical Studies of European Union Law.......................................11 3. Discovery (or Re-Discovery) of DeBates on the Legitimacy and Authority of International Judicial Review Bodies............................................................................................................................................16 4. Discovery (or Re-Discovery) of DeBates on the Cultural Diversity in the Supranational Project, and its Role Within the Legal Context .......................................................................................................20 5. A Few Words on the Method and the Basic Idea: Mimetism as a link Between cultural studies and Functionalism in Supranational law.............................................................................................................25 6. Work Plan...............................................................................................................................................33 III. The Foundation and Structuring of the Powers of the Court 1. Choice of Form: the Original DeBate on the Creation of a Court for European Communities... ..........38 2. Design of Powers of the Court of Justice and National Influences........................................................48 2.1 The “Administrative” Competences of the Court.................................................................................49 2.2 Transformation of the Preliminary Reference Procedure.....................................................................60 3. Different Perspective, Same Dynamics: the EstaBlishment of Doctrines of Primacy and Direct Effect............................................................................................................................................................70 4. The Original Choices in the EstaBlishment of the Court of Justice as a Form of Improvement of its Authority......................................................................................................................................................78 IV. The Appointment of Members of the Court 1. Selection of Judges: Comparative Trends at the National and International Level and Their Rationale...............................................................….. .................................................................................82 1.2. The Historical Rise of Judicial Selection Models.........................................… ...................................82 1 1.3. Models of Apical Court Selections, in Europe and at the International Level....................................88 2. Selection of Judges of the Court of Justice of the EU: LiBeral Supranationalism as a Reaction to Pure Intergovernmentalism?......................................................................................................................101 3. The Evolution of Judicial Appointments as a Form of Improvement of the Court's Authority.................................................................................. ..................................................................114 V. The Deliberation of the Court and its Transparency 1. Openness as Access to DeliBeration: Comparative Remarks..............................................….............123 2. Openness as Access to DeliBeration: the DeBate for the European Court of Justice (also with Reference to the Advocates General and their Opinions).........................................................139 2.1 Old and New DeBates on the Adoption of Dissenting Opinions in LuxemBourg......... ......................139 2.2 The Advocates General and Their Role in the Transparency of the Court's DeliBerations......…......147 3. Openness as Access to Court Documents..................................................... ........................................156 3.1 Access to Court Documents as a Second Dimension of Openness.........................................….......156 3.2 The International DeBate, the Comparative Paradigms.......................…...........................................159 3.3 Openness as Access to Court Documents: the DeBate in European Union law..................................171 4. Dimensions of Openness and the Authority of the Court of Justice................. ...................................190 VI. Docket Control at the Court of Justice 1. The European Court of Justice and its Docket......................... ............................................................196 2. Docket Control as the Use of Certiorari and Procedural “Passive Virtues”.................…...................205 3. The PossiBility of Adopting Other “Passive Virtues” in LuxemBourg...................................…