While studying the representation of women in the higher political and administrative positions in the European Union’s main institutions, we found out that women are hugely under-represented in the judiciary system of the EU. In particular, there has been no woman President of the Court of Justice or the General Court (the two main courts of the Court of Justice of the European Union).
In this article, we analyse the composition of the Court of Justice of the European Union by reviewing women’s representation among Judges and Advocates General at the Court of Justice, and among Judges at the General Court.
The Court of Justice of the European Union is the supreme judicial authority of the EU, first established in 1952. However, since 1952, the structure and powers of the court have undergone many changes. In particular, in 1988, the General Court was created, and in 2004, the Civil Service Tribunal was established. The latter ceased to exist in 2016 after the reform of the EU’s judicial structure. Today, the Court of Justice of the European Union consists of two separate courts: the Court of Justice and the General Court. Their primary task is to examine the legality of EU measures and to ensure the uniform interpretation and application of EU law.
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The mission of the Court of Justice of the European Union is to ensure that the law is observed in the interpretation and application of the Treaties of the European Union. In particular, it:
· reviews the legality of the acts of the EU’s institutions;
· ensures that member states comply with obligations under the treaties;
· interprets EU law at the request of national courts and tribunals.
The Court of Justice rules in matters of EU law and hears applications from national courts for preliminary rulings, annulment, and appeals, while the General Court hears applications for annulment from individuals, companies, and, less commonly, national governments.
According to the regulations in force, the Court of Justice is composed of 27 Judges (one per Member State) and 11 Advocates General. The Judges and the Advocates General are appointed by common accord of the Member States for a renewable term of six years. The Judges elect the President and Vice-President from among their number for a renewable term of three years. Contrary to the Judges, the Advocates General does not participate in the deliberations. They participate in the hearing and deliver an Opinion. In that Opinion, the Advocates General suggest to the Court a solution to the dispute, but the Court of Justice is not required to follow that Opinion.
In total, 111 people have served as Judges of the Court of Justice since 1952, only 12 of whom – 11% – were women. The female Judges represented ten member states: Austria, Estonia, Germany, Ireland, Italy, Latvia, the Netherlands, Romania (two female judges), Spain (two female judges), and Sweden. The first woman appointee to the Court of Justice was Fidelma O’Kelly Macken from Ireland, in 1999, almost 50 years after the court was established.
In its current composition, the Court of Justice has the highest number of female representatives in its history: 6 out of 27 judges – 22% – are women: Sacha Prechal (from 2010; the Netherlands), Küllike Jürimäe (from 2013, Estonia), Lucia Serena Rossi (from 2018, Italy), Ineta Ziemele (from 2018, Latvia), Maria Lourdes Arastey Sahún (from 2021, Spain), and Octavia Spineanu-Matei (from 2021, Romania).
As to the Advocates General, 57 people have occupied this position. Among them, only 7 – 12% – were women. They were appointed by Austria, Croatia, Germany, France, Latvia, Slovenia, and the United Kingdom. In 1981, Simone Rozès from France became the first woman to serve as Advocate General. At present, 27% of Advocates General (3 out of 11) are women. They are Juliane Kokott (since 2003, Germany), Tamara Ćapeta (since 2021, Croatia), and Laila Medina (since 2021, Latvia).
Women’s representation at the Court of Justice has always been very low, which signals that crucial changes are needed at national level, as it is the member states who appoint the Judges and the Advocates General. The general tendencies in this regard correspond to the trends identified in the Gender Equality Index 2022 presented in October 2022. The frontrunners on the list (countries with positions higher than the EU’s average of 68.6) are Sweden (83.9), Denmark (77.8), the Netherlands (77.3), Finland (75.4), France (75.1), Spain (74.6), Ireland (74.3), Belgium (74.2), Luxemburg (73.5), Austria (68.8), and Germany (68.7). Among them, seven have appointed women as Judges or Advocates General of the Court of Justice. At the other end of the list (scores of less than 61.0), are Bulgaria (60.7), Croatia (60.7), Lithuania (60.6), Poland (57.7), Cyprus (57.3), the Czech Republic (57.2), Slovakia (56.0), Hungary (54.2), Romania (53.7), and Greece (53.4). Among the latter, Romania is the only country that had ever appointed female Judges of the Court of Justice.
The General Court consists of 54 Judges (two per Member State). There are no permanent Advocates General in the General Court. The Judges are appointed by common accord of the Member States for a renewable term of six years. They elect the President and Vice-President from among their number for a renewable term of three years.
Since 1989, 118 Judges have been appointed to serve at the General Court, of whom 28 – 24% – were women. These came from 18 out of 27 EU member states: Austria, Bulgaria, Croatia (two judges), the Czech Republic (two judges), Cyprus, Estonia, Finland (two judges), Germany, Ireland, Italy, Latvia (two judges), Malta (two judges), Poland (three judges), Portugal (two judges), Romania (two judges), Slovakia, Slovenia (two judges), and Sweden. The first women were appointed as Judges at the General Court in 1995. They were Virpi Tiili from Finland and Pernilla Lindh from Sweden.
As of October 2022, there are 18 women among the 54 judges of the General Court, or 33%, the highest women’s representation in the history of the General Court. These female judges were appointed by 16 EU member states: Austria, Bulgaria, Croatia (two judges), Cyprus, the Czech Republic, Finland, Germany, Ireland, Italy, Latvia, Malta, Poland (two judges), Romania, Portugal, Slovakia, and Slovenia.
On the one hand, the findings above demonstrate the positive trend of having more women in the judicial system; on the other, they prove the tendency of giving women lower positions with fewer decision-making powers than men. Namely, the General Court is competent to hear cases at first instance brought by natural or legal persons and some cases brought by EU institutions. The judgments of the General Court can be appealed before the Court of Justice, but there is no instance to bring an appeal to a decision of the Court of Justice. The Court of Justice can therefore be considered as a higher court chamber and the General Court as the lower court chamber. And there are fewer women in the Court of Justice than in the General Court.
The current analysis leads us to the assumption that due to the internal struggles and resistance in providing women and men with equal rights and opportunities, in particular in the decision-making domain, the EU’s judicial system is still seen by the EU member states, which appoints members of the Court of Justice of the European Union, mainly as a ‘men’s club’.
Countries like Belgium, Denmark, Greece, Hungary, Lithuania, and Luxembourg have never appointed a woman as a Judge or Advocate General at the Court of Justice or Judge at the General Court. This is interesting, given that, even though Greece, Hungary, and Lithuania rank poorly on the Gender Equality Index 2022, Belgium, Denmark, and Luxembourg occupy much higher positions, and the failure to appoint women to key roles at the Court of Justice of the European Union raises questions about their judicial and decision-making systems.No matter what, Ruth Ginsburg, a pioneering female lawyer, and member of the US Supreme Court, once said: “Women belong in all places where decisions are being made. It shouldn’t be that women are the exception.”
Author: Liliia Antoniuk, Young European Ambassadors in Ukraine National Coordinator.
