Ensuring Separation of Power: Curtailing the Risk of Politicised Appointments at the CJEU through Decision-Making Practice

A common critique towards backsliding member states is the politicisation of judicial appointments. Politicised judicial appointments constitute a risk for the separation of power, since they may impact the judiciary’s capacity to check executive power. However, political influences on judicial appointment is not only a mark of authoritarian governments, but can also be found in supranational courts like the CJEU. There are a number of ways in which CJEU judges are protected from political pressure, such as the single-voice approach, but broad discretion is given to Member States to nominate “their” judges. Taking a perspective inspired by Bourdieu’s theory of practice, I will consider how structural factors of decision-making at the Court can incentivise Judges to converge around shared legal concepts and values. This establishes a practice that encourages use of such concepts in the struggle among the judges, discouraging them from basing decisions on merely political considerations.