Towards Separate Opinions at the Court of Justice of the European Union: Lessons in Deliberative Democracy from the International Court of Justice and Elsewhere

The Eurozone crisis precipitated a shift towards intergovernmental forms of EU governance involving executive dominance and a reduced role for the European Parliament, and consequently spotlighted the EU’s democratic legitimacy. It provoked prescriptions for a more deliberative EU whose citizens have more opportunities to effectively contest its direction. This chapter argues that the Court of Justice of the European Union (CJEU) could assist this if its judges were able to issue separate opinions. It draws on the International Court of Justice (ICJ), other international and domestic courts, and deliberative theory to demonstrate the democratic potential of such a reform. In sum, moving away from its current univocal format would encourage clearer and more discursive judgments which articulate different legal solutions and catalyse what Hübner Mendes calls 'post-decisional’ deliberation.