Third parties and other external factors playing a role in the jurisprudence of the CJEU and ECtHR

My PhD analyses the threats to the independence of the CJEU and ECtHR and the tools these two Courts have at their disposal to combat them. My definition of judicial independence consists of the four elements identified in the ECtHR judgment Luka v Romania, namely judicial appointments, term in office, guarantees against external pressure and appearances of independence. Within the framework of the third element, guarantees against external pressure, I analyse any outside influence or considerations that play a role when the judges reach their decisions. I do so based on three methods: analysis of the legal rules, judgments analysis and interviews with the judges of the CJEU and ECtHR and users of these two Courts. When analysing the legal rules, I look at spots where the legal setting would allow for any outside influence. For instance, the rules concerning the third parties’ submissions and the differences between them in the CJEU and ECtHR are interesting in that context. As for the case law analysis, having chosen 10 cases from the CJEU and the ECtHR, I research whether, based on the judgments, it is possible to identify any pressure or influence of other actors upon the Courts. The cases I selected come from various areas of law and belong to the judgments widely debated in the literature. I identified a set of criteria, which guide my case law analysis. Looking at the submission of the third parties, I examine whether their arguments are detectable in the reasoning of the Courts. Scrutinising the interpretative strategy employed be the Court, I try to discover whether it has been influenced by any actors: historical or teleological technique as a prevailing method of reasoning, departing from a strictly legal analysis, may suggest such influences. Analysing the argumentation technique is also revealing. Relying on the margin of appreciation allows the Court to grant the Member States a wider freedom in a given field and might – although does not have to – indicate some pressure by the national governments. Relying on European consensus and quoting the established case law may reveal the Court’s desire to harmonise the law at the European level, possibly making any influences less likely. I also consider the timing issue: for instance just after the change of power in Poland in December 2022, the ECtHR published two very controversial judgments which were delayed a few years. Could the change in the political situation play a role here? The interviews conducted with the CJEU/ECtHR judges reveal whether the judges themselves admit to taking the political circumstances into account and whether they believe that the member states or third parties have a strong impact on their work, which offers a new perspective. An interesting angle is also provided in the interviews with the users of these two Courts, such as the domestic judges, who also consider the political influence upon the European Courts yet in a different light.