Judicial activism infiltrates CJEU

The appointment of new judges to the EU’s General Court normally does not catch much public attention, but this time it may be different. As one reads on the Court’s website, Dean Spielmann from Lxembourg is one of five judges who have been appointed to serve at the General Court for the period from 13 April 2016 to 31 August 2016.

This is an extremely short period. In actual fact such an appointment makes only sense if it is then prolonged for a full term. This is thus, as we read, only the first step of a reform that will lead to a considerable increase in the number of judges.

Does the name Spielmann ring a bell?

For those who, with increasing concern, have been watching how the European Court of Human Rights (ECtHR) has over the last years produced increasingly bizarre masterpieces of judicial activism (mostly turning around left-wing favourite subjects such as abortion on demand, euthanasia, same-sex “marriage” rights, the facilitation of surrogacy…), Mr. Spielmann is certainly a man of some notoriety. Indeed he was a judge at the ECtHR from 2004 to 2015, serving as the Court’s President from 2012 until last year. He was involved in several of the Court’s most extremely activist judgements. And while activist judges usually prefer to pretend that they are in fact applying the law, Mr.  Spielmann had no qualms about stating very candidly that in his view the ECtHR’s function was to impose on the States under its jurisdiction some innovations that, if left alone, they would not adopt for themselves. In this regard his speech at the 2015 ceremonial session for the opening of the judicial year of the European Court of Human Rights, commenting  on some very controversial decisions through which the Court had pushed for the legalization of surrogacy, was of particular significance.

While the ECtHR has already over more than a decade acquired a questionable reputation for its judicial activism, the Court of Justice of the EU (CJEU) has so far still been considered a serious-minded and fairly credible judiciary instance. With the arrival of judges such as Dean Spielmann this might quickly change.

With a population of around 300.000, Luxembourg is the smallest EU Member State. Given its relatively restricted reservoir of persons qualifying for high-ranking functions in international institutions, being a citizen from the Grand-Duchy makes it possible even for people with mediocre qualifications to occupy many high-profile jobs one after another.