The Skouris legacy and the Skouris Court

Yesterday, 7 October 2015, was a landmark in the Court of Justice’s history. Vassilios Skouris, the man who has presided over the Institution for twelve years, finished his mandate and passed on the presidency to a successor (who will be elected today). The Skouris presidency has come to an end, and thus a new time begins for the Court of Justice.

Skouris has probably been the most decisive and relevant president in the Court’s history. Under his mandate the Court has transformed itself from a modest and family-like jurisdiction into an international judicial hegemon, comprised of over 2000 employees, including, among others, judges, advocates general, legal secretaries, administrators, jurist-linguists, spreading its authority over a territory and a population hardly envisaged by the Community’s founding fathers. The prestige and power of the Court has reached unprecedented levels. The cases it rules on are crucial for the stability and integrity of the euro and the Member States, and for the very existence of the Union. The Court is probably the world’s leading international jurisdiction, but it could be argued that, together with the US Supreme Court, it is the world’s leading domestic jurisdiction too. Due to the intricate way in which the Court interacts with national courts, the former has become another member of the judicial family of every Member State. And among the domestic courts of the Member States, no other shines brighter than the Court of Justice, even when compared with other glamorous family members.

This is all the result of the Skouris presidency.

Of course it is impossible to attribute all the merit to Skouris. The Court has had to adapt to a very different Union, and thus the very different Court we have today. Also, the appetite of national courts for preliminary references has reinforced the Court’s authority, but not as a result of the Court’s will, but of national courts’. Furthermore, the tendency of the political institutions to throw the ball into the Court’s camp, thus avoiding tough political choices difficult to sell back home, is also an explanation of the Court’s growing docket in quantitative, but mostly qualitative terms.

However, Skouris deserves a significant part of the merit. Skouris’ priorities can be seen through his speeches and articles during these past years, as well as in the forewords of the Annual Report of the Institution. His concern with the efficiency of the Institution has resulted in a much more agile and speedy Court. The enlargement from a 15 to a 28 Member Court, managing to make things work in an efficient way despite the obvious reshuffling and reorganization of cases, personnel, working methods, translations, etc.,  is also a success of his making. New procedures like the urgent preliminary procedure are typical Skouris creatures, and they have been a success too. A success that should be justly attributed, for the most part, to the man himself.

But above all, Skouris has kept the machine of legal integration running, despite all the obvious difficulties. The case-law of the Court has invigorated the integration-through-law narrative, and has grown in parallel with the prestige and power of the Institution. It is unquestionable that Skouris’ views prevail in the Grand Chamber. Such a powerful and authoritative President cannot be imagined being left in the minority in the Grand Chamber. If he has won four elections to the Presidency, we can deduce that his views on the substance of cases have been highly respected by a majority of judges. Therefore, the Grand Chamber’s case-law during the past years should also be attributed, in a large portion, to Skouris. Of course the case-law is a collective task, but I would say that Skouris has never been an ordinary judge sitting in the Grand Chamber. This was obvious to see in the course of hearings, where his authority among his peers remained unchallenged (and visible for all those present in the salle d’audience).

Therefore, the Court’s major decisions in these past years are also a significant part of the Skouris legacy.

In this domain, the outcome is mostly positive. As I said, the Court has kept the machine of integration-through-law running quite smoothly despite the difficulties ahead, delivering landmark cases like Ruiz Zambrano, Akerberg Fransson, OMT, Pringle or Digital Rights Ireland. The Court has never been so influential. And with great influence comes great power, and ultimately great contestation. The Court has never been so contested as in the past years, but ultimately, one way or the other, the Court, the Skouris Court, has always imposed its views.

At the same time, the case-law has been zig-zagging in ways that might sometimes upset lawyers, but certainly look appealing for non-lawyers. When the citizenship case-law was at its zenith, the Court made a U-turn and sided with the concerns of Member States in a context of rising migration and racist and nationalist counter-reactions in some countries. In contrast with the past practice of the Court, the traditional honeymoon with the European Commission came to an end and the Court began siding with the Council too, raising the expectations of Member States, which suddenly, for the first time, saw a friendly ally in the Court. The Skouris Court has not always been coherent in its case-law, but the politics of the Court have been very evident for all to see. Some will criticise this, but I think it shows Skouris’ political astuteness, his ability to adapt the Court to every circumstance and thus manage to keep the machinery of integration through law alive and kicking.

This political turn in the case-law might explain the Court’s overall position when addressing subjects such as the accession agreement of the EU to the European Convention of Human Rights, the ECB’s outright monetary transactions programme or fundamental rights cases like Digital Rights Ireland. The Court proves hostile to any institutional menace (the ECHR), but it proves friendly when facilitating further integration in the Eurozone (the OMT programme), and does not hesitate to overrule its past case-law on citizenship and give a hand to some Member States that struggle domestically with the sensitive issue of migration (Dano and social benefits). And when citizenship seems to be in danger, the protective Court comes back and proves to be the staunchest defender of fundamental rights by questioning the entire model of data protection in the internet age (Google Spain, Digital Rights, Schrems…).

The overall narrative might look incoherent, but it seems perfectly logical to me: the Court is a very relevant institutional actor in the Union, and it must act accordingly, adapting its decisions to context, ambiance and tempo. The Court has become more political, not in the bad sense of the term, but in a neutral sense that simply explains what it is trying to do. The Court does politics through law, because integration itself has become much more political. Therefore, integration-through-law has mutated too, it is not a narrative solely for lawyers anymore. Now it needs the help of social scientists, historians and maybe economists too. It is therefore not surprising that the Court has become the focus of attention of political scientists like Antoine Vauchez, or historians like Morten Rasmussen. Integration-through-law still exists, but it is much more complex, and partly due to the way in which Skouris has handled the agenda of the new and powerful Court he leaves as his legacy.

This new Court is the one that Skouris is passing on to its successor. The extraordinary deposit of power and authority that Skouris leaves behind is undoubtedly to his merit and he deserves honest recognition. However, by empowering the Court in such a way, he might have contributed to build a hegemon that may prove difficult to handle in the years to come. His successor/s will have to face that challenge. However, the successes or failures of the future Court will very much be the result of the Institution that Skouris leaves behind. Therefore, at this time we can only give a preliminary judgment of the Skouris presidency. The real judgment about his legacy will have to wait a decade or maybe two. Only then will we be in a position to ponder on the real impact of Vassilios Skouris, the most charismatic, controversial, decisive and powerful President in the not so brief history of the Court of Justice.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s