Rising Gender Disparity at the CJEU
With the recent swearing-in of Judges and Advocates-General (AG) at the Court of Justice of the European Union (CJEU) in October 2024, the number of women has decreased. Among the new cohort of 11 Judges and AG arriving in Luxembourg, only one new woman was appointed to the CoJ. There are currently 5 women Judges out of the 27 positions at the Court of Justice (CoJ). Among the 11 Advocates-General (AGs), only 3 are women. The General Court (GC) fares slightly better than the CoJ, with 18 women Judges out of 54 positions, yet gender parity remains a distant goal. We urge Member States to intensify efforts for gender parity in their nominations of Judges and Advocates-General, and to reform their domestic nomination processes through public calls to ensure such outcomes. Finally, we call on the 255 Committee to use its discretion to guarantee full gender parity among Judges and Advocates-General.
Why is gender parity at the CJEU important?
The rising gender disparity at the CJEU, particularly in its higher court, the CoJ, is set to intensify scrutiny on the two current vacancies (Poland and Slovenia) and the two upcoming replacements (Bulgaria and Portugal), with a heightened focus on gender balance. Despite slight progress toward gender parity, also the GC, with three vacancies (Lithuania, Malta, and Sweden) and an upcoming triennial renewal in 2025, is likely to face intense scrutiny on gender balance. The discrepancy between these two courts highlights the broader struggle to ensure diversity in key EU institutions such as the CJEU that increasingly serves as a guardian of democratic and rule of law principles across Europe.
Scholars have highlighted that the legitimacy of international courts is also rooted in their representativeness of society as a whole, with gender diversity playing a crucial role. Court’s representativeness through gender parity legitimates its outward-facing and democratic role. At the CJEU, in particular, scholars such as Sally Kenney, Iyiola Solanke, Jo Shaw, Jessica Guth and Sanna Elfving, Delphine Dero-Bugny and Anemone Cartier-Bresson, and one of the co-authors of this post have emphasized the persistent gender disparity within the Court.
Judging is an activity that does not naturally align with the concept of representation. However, it is important to distinguish representativeness from representation, just as that “standing for” is distinct from “acting for.” The notion that the CJEU should be a representative court was accepted by the original six Member States from its inception, as noted by Anne Boerger-De-Smedt in highlighting the compromise involving one Judge per country. This principle was reaffirmed with the 2015 reform, under Regulation 2015/2422, which aimed to address the backlog of the GC. The European legislator decided to double the number of Judges at the GC, resulting in a composition of 2 Judges per Member State (MS).
Since the Court’s creation in 1952, the first woman member AG Simone Rozès (France) was appointed in 1981. It was not until 1999, after 47 years of existence, that the first female Judge, F.O’Kelly Macken (Ireland), was appointed. Notably, neither the CoJ nor the GC have ever had a woman President. This contrasts with the European Court of Human Rights (ECtHR) in Strasbourg, where the first woman Judge, Helga Pedersen (Denmark), was elected in 1971, nearly twelve years after the Court became operational in 1959. In 2022, the ECtHR appointed its first female President, Siofra O’Leary (Ireland), who also previously served as a référendaire in Luxembourg.
Although a positive precedent was set when Rosario Silva de Lapuerta (Spain) served as Vice-President of the Court of Justice from 2018 to 2021 – having been a Judge at the Court for almost two decades (2003–2021) – her replacement was followed by the election of 2 male Vice-Presidents: Lars Bay Larsen (Denmark) and now Thomas von Danwitz (Germany). Furthermore, all Registrars who head the Secretariat of both the CJEU and the General Court have historically been men, including the two currently serving.
Despite the low number of women at the CoJ, the effort to achieve gender parity within its internal organization is remarkable. Of the 10 Chambers (5 with 5 Judges and 5 with 3 Judges), only 3 are presided over by women. However, two of the most influential Chambers, the ones with 5 Judges, are led by female judges: Küllike Jürimäe (Estonia) and Maria Lourdes Arastey Sahún (Spain). The President of the Sixth Chamber (3 Judges chamber) is Ineta Ziemele (Latvia).
Why this is not (fully) the case at the General Court?
In the 2015 revision of the CJEU Statute, the European Parliament, acting as a co-legislator, introduced a preliminary recital emphasizing the importance of ensuring gender balance within the GC. It urged the Member States to gradually nominate candidates with the goal of selecting one man and one woman. This first official signal from the European legislator directed to the Member States was swiftly followed in their nominations to the GC. While gender disparity has improved, the GC still comprises 36 male and 18 female Judges. Nonetheless, the GC has recently achieved greater gender parity with an equal distribution of men and women serving as Presidents of Chambers – 5 men and 5 women.
Unfortunately, this European legislator’s call for more gender balance does not formally extend to the CoJ, as Regulation 2015/2422 applies solely to the provisions of the Statute regarding the GC’s composition. Moreover, unlike the GC, the CoJ is limited to one Judge per Member State. With only 11 Advocates-General (AG) – 5 permanent ones for France, Germany, Italy, Spain, and Poland, and 6 rotating every six years among the remaining 22 Member States – achieving gender equality becomes even more challenging.
Raising awareness of Member States non-compliance with gender parity
The key question remains: how is it that, despite repeated calls for greater gender parity at the CJEU, some Member States continue to disregard gender balance more than others when nominating Judges and AGs? We propose that there should be greater awareness of how Member States are adhering (or failing to adhere) to the general principle of gender parity in their nominations to the CJEU in Luxembourg.
Among the Member States with 4 positions at the CJEU – comprising 1 Judge at the CoJ, 1 AG and 2 Judges at the GC – some have not set a good example in promoting gender balance. For instance, countries such as France, Luxembourg and Greece have all 4 positions filled by men. Additionally, Italy, Cyprus, and Spain have only 1 woman out of 4 positions. In the same way, Member States with 3 positions at the CJEU – comprising 1 Judge at the CoJ, and 2 Judges at the GC – such as Belgium, Hungary, Lithuania, and the Netherlands have all 3 positions filled by men. Notably, Sweden has currently 3 of its 3 positions filled by men and since its accession, it has never had a woman at the CJEU. Because one of the two Swedish male Judges from the GC joined the CoJ in October, Sweden will have the opportunity to fulfil at last the principle of gender parity by nominating its first woman to fill the vacant seat at the GC.
In contrast, other Member States, even smaller ones, have set much better examples by adhering to the principle of gender parity or going beyond it to restore gender balance as a whole at the CJEU. For instance, Croatia has appointed two female Judges to the General Court and one woman as AG. Latvia has a female Judge at both the CoJ and the GC, as well as a woman serving as AG. Poland and Romania have also set a good example by filling 2 out of their 3 positions with women. For Poland, both Judges on the GC are women. Alternatively, Romania has appointed 1 woman to the CoJ and 1 woman to the GC. The appointment of women judges to the GC is crucial, as it often serves as a pipeline to the CoJ. For instance, in October, Maltese judge Ramona Frendo was “promoted” from the GC to the CoJ. Similarly, male judges from Lithuania and Sweden have advanced from the GC to the CoJ, underscoring the GC’s role in shaping the judiciary of the CoJ.
The importance of an open call on paper and in practice
An examination of the judicial nomination practices at the CJEU by Member State governments reveals significant weaknesses that must be openly addressed to restore gender parity.
Due to the risk of women being overlooked in judicial nominations, scholars like Chiara Favilli argued that public and transparent calls for judicial nominations at the CJEU are essential. Additionally, the so-called 255 Committee (hereinafter also the Committee), which evaluates candidates’ suitability to perform the duties of Judge and AG, has constantly emphasized the need for an open, transparent and rigorous national selection procedure led by an independent and impartial panel (as highlighted in its first Report from 2011 and its 7th Report from 2022). Although there has been a general shift among Member States toward implementing such open procedures in line with the 255 Committee’s criteria – illustrated recently by the Virgilijus Valančius case – there are still notable exceptions.
The case of Italy’s first female Judge at the Court of Justice, Lucia Serena Rossi, is particularly emblematic. Despite her six-year mandate, she was not reappointed by the Italian government. At the same time, the government had the opportunity to restore gender balance by nominating a woman as Advocate-General, yet it failed to do so. In both instances, the government did not conduct an open selection process that could have encouraged female candidates to apply. This lack of transparency contrasts with Italy’s previous nomination, when, following an open selection process, the government appointed a male Judge and its first female Judge at the General Court, Ornella Porchia in 2019.
Even when an open call is conducted, female candidates are occasionally included as potential options despite having less extensive professional expertise, which can be perceived as a way to support the appointment of a government-preferred male candidate. In relation to the European Court of Human Rights (ECtHR), this practice has been empirically demonstrated by Stephanie Hennette Vauchez, while Laurence Burgorgue-Larsen has documented the lack of diversity in the French selection process. In relation to the CJEU, in 2019, the satirical newspaper Le Canard Enchaîné reported that France had, for the first time since 1981, proposed a female candidate for the position of AG following an open call. However, the 255 Committee rejected her candidacy, citing insufficient expertise in EU law, highlighting the gap between formal commitments to openness and the practical outcomes of the selection process.
Can Member States do more to achieve gender parity?
Unlike the ECtHR where Member States nominate a list of three candidates for each judicial position, Member States nominate only one candidate for each position at the CJEU. However, when the mandates of both Judges at the GC (or both AG and Judge at the CoJ) expire simultaneously, achieving gender parity becomes more straightforward. Governments should adopt a practice based on the general principle of gender balance by nominating one woman when this gender is underrepresented among their positions. If a MS holds two positions at the CoJ (1 Judge and 1 AG), these roles should be distributed equally between genders. If the MS has only one position, it could still respect gender parity by nominating a candidate from the underrepresented gender at the Court.
While the nomination of CJEU members remains under the control of Member States, and Articles 253 and 254 TFEU, which outline the qualifications for Judges and Advocates-General, do not explicitly require gender parity or diversity, the EU legislator could still encourage such practices. For instance, the European Parliament, in overseeing the CJEU’s budget could leverage its prerogative to assess and promote gender equality, particularly within the GC. This approach might indirectly influence Member States to consider gender balance in their nominations. Alongside the new recital of Regulation 2015/2422, the December 2020 rendez-vous clause, which mandates a report on the efficiency of the General Court, emphasizes the goal of achieving gender balance within the GC. As for the CoJ, the preamble of the same Regulation may be interpreted as endorsing a general principle of gender balance, suggesting that this objective should be applied to both courts of the Union.
Empowering the 255 Committee to restore gender balance
One could also envision an influential role for the 255 Committee, whose opinions are systematically followed by MS governments since 2011, to become a “soft enforcer” of the principle of gender parity. As mentioned earlier, an increasing number of governments have adopted open and transparent national selection processes, including public hearings, in line with the Committee’s recommendations. Similarly, it is conceivable that the Committee could include, in its next report, a recommendation for Member States to adhere to the general principle of gender parity in their nominations.
This may be an opportune moment to strengthen the Committee’s role as an institutional safeguard of the judicial recruitment process – a role even reaffirmed by the CoJ. The Committee now comprises four women and three men, following the latest appointment decision. While many EU law scholars, including Jean-Victor Louis, contributors to Selecting Europe’s Judges and one of the co-authors, have pointed out a lack of transparency in certain procedural aspects, they have not questioned the Committee’s competence or expertise. In this respect, the Committee retains a degree of discretion in evaluating candidacies. Article 255 TFEU empowers the Committee “to give an opinion on candidates’ suitability to perform the duties of Judge and Advocate-General.” As pointed out by François-Xavier Millet, the concept of candidate’s suitability should be interpreted autonomously, and we argue it could now be interpreted by the Committee in a more gender-inclusive manner.
While we acknowledge that gender is only one aspect of an intersectional approach to advancing overall equality, the current gender disparity in the composition of the CJEU underscores the urgent need for an open discussion on the benefits of a diverse bench – encompassing gender, race, class, and religion. Such diversity would not only enhance the representativeness of the Court but also bolster its legitimacy, especially at a time when the rule of law is under serious threat.
