Structuring perception : how structures of practice influence decision-making at the Court of Justice of the European Union

Abstract

This thesis studies the impact of working processes and working culture at the Court of Justice of the European Union on the stabilisation and destabilisation of its decision-making. The theoretical framework is a Bourdieu’s theory of practice. I argue that the simultaneous relative indeterminism and determinism of decision-making, i. e. the fact that it produces relatively consistent outcomes and despite lawyers’ persistent disagreement, can best be explained by seeing it as a struggle among judges who try to enshrine their own perception of the case. However, I consider this struggle as more than a game of politics. The Judges perceptions are based on deeply inculcated schemata of perception. On the national level, these are primarily created by shared legal education and professional socialisation. But Judges at the Court of Justice come from diverse sets of legal systems and professional backgrounds. Hence, the structural factors of the practice at the Court have to carry much of the burden. I identify ten specific factors, such as the assignment of Judge-Rapporteurs, the chamber system, the single voice approach or the Court’s approach to case-law. In two case-studies on gender equality and childcare-related leave cases, I study the impact of these factors. In this area, the Court’s caselaw has often been criticised as incoherent, which allows me to identify competing perceptions. I then examine which structural factors can help to understand periods of increase convergence around a dominant schema, and which are related to periods of more contest and divergence. I find that the impact of the factors varies depending on their mutual interaction with other factors and that, for example, the often-studied Judge-Rapporteur alone cannot explain periods of convergence. The thesis thus furthers our understanding of the judicial process at the Court of Justice by revealing the comprehensive interrelationships between these factors.