This chapter examines the origins of legal secretaries in the Court of Justice of the European Union (CJEU) and the EFTA Court and the role they have within these 'European Courts'. To this end, it explores similar positions found in the courts of select civil law and common law jurisdictions, comparing and analysing them. On the basis of this comparative review, we argue that the position of legal secretary in the European Courts owes more to the tradition of independent judicial secretaries in civil law jurisdictions, although it also shares some features with the law clerks of the common law world. In addition, the article endeavours to describe the current role of legal secretaries, assessing their respective functions in the two judicial bodies and evaluating the relative importance of the position. On this point, the article finds that the legal secretaries are tasked with considerable responsibilities in the management of the judicial enterprise of the European Courts. At the same time, they have no independent role since their work is performed exclusively in the name of the judge or advocate general for whom they work and under their direct supervision.

I INTRODUCTION

At the CJEU2 and the EFTA Court, legal secretaries assist the courts' members in their work. The two 'sister' courts, referred to in this chapter as 'the European Courts', have comparable roles in the administration of justice within the legal orders of the EU and European Free Trade Assocation (EFTA) pillars of the European Economic Area (EEA).3 The European Courts provide authoritative interpretation on EU law and EEA law, resolve disputes of international character between Member States and the supranational surveillance bodies, and act as the final arbiters on issues arising from the daily administration of these regional integration systems.4 The role occupied by both courts, as well as their judges, has long been the subject of in-depth academic studies.5 However, much less attention has been paid to the internal organisation of these judicial bodies and the legal work carried out by the personal advisers of their members – that is, the legal secretaries of the judges and advocates general,6 frequently referred to by their French title, référendaire.7

This chapter examines the origins of legal secretaries in the CJEU and the EFTA Court and their role in the administration of justice in these judicial bodies overseeing the application of the laws governing the EU and the largest 'enhanced free trade area' in the world: the EEA.8 It strives to remedy the relative dearth of literature on the 'closest personal legal advisers and assistants'9 to the members of the European Courts. Not only is this gap in the literature regrettable in view of the lack of information on the legal secretaries, but it also contributes to misunderstandings about their role. In particular, the office of référendaires is sometimes conflated – in our view wrongly – with that of the law clerks of the United States Supreme Court. At other times, they are portrayed – according to us, equally misguidedly – as unaccountable power-hungry operators in the shadows of the European Courts. As its title suggests, this article aspires to shed light on the origins of the legal secretaries' position and illuminate the readership about their role. This chapter considers not only the current normative framework that governs their work, but also the historical development of the role of legal secretaries, including comparative materials from national jurisdictions.

This chapter has a two-part structure. The first part considers positions similar to those of the legal secretaries in the European Courts found in the judiciaries of select civil law and common law countries. On this basis, the chapter argues that the position of legal secretary in the European Courts derives primarily from the more independent and long-serving judicial secretaries found in the courts of civil law jurisdictions, although it also shares some features with the law clerks of the common law world.10 The second part describes and evaluates the function of legal secretaries in the European Courts, providing first an overview of the position at the CJEU, followed by a presentation of the role at the EFTA Court. This part evaluates the relative importance of the position, finding that the legal secretaries are tasked with considerable responsibilities in the management of the judicial enterprise of both European Courts. At the same time, it is highlighted that they have no independent role since their work is exclusively performed in the name of the judge or advocate general for whom they work.11

II THE ORIGINS: ASSISTING JUDGES IN CIVIL LAW AND COMMON LAW JURISDICTIONS

i Assisting judges in civil law jurisdictions – history and current practice

The notion of having court lawyers aid judges in their work appears to have its origins in the Romano-Germanic legal tradition. The administrative-judicial office of 'referendarius' has existed in continental Europe under various guises over time. Without suggesting a direct line of pedigree for the present-day legal secretaries at the European Courts, some early functions of certain officials may be recounted anecdotally. Referendarius was both an ecclesiastical rank in the Orthodox Church and a civilian office of the Byzantine imperial administration.12 At the Byzantine Court of the Eastern Roman Empire, referendarii were 'officials who reported to the Emperor on the memorials of petitioners, and conveyed to the judges the orders of the emperor in connexion with such memorials'.13 During the Middle Ages in the West, the high official later known as chancellor ('cancellarius') was called referendarius during the Merovingian period of the Frankish Empire (5th–8th century).14 The origins of the office may also be traced in the canon law institutions of the Catholic Church. In the 1438 work De curiae commodis ('On the Benefits of the Curia') by Lapo Da Castiglionchio, a Florentine humanist and an official in the Papal Curia during the reign of Pope Eugenius IV (1383–1447), it is explained that the referendarii, who worked in the judicial branch of the administrative apparatus of the Holy See, were in charge of handling the requests for grace presented to the Pope.15 According to a definition of a référendaire in the Dictionary of Canon Law and Papal Practice from 1761, these officials of the Papal Curia had to be qualified as 'doctors of civil and canon law'.16 Finally, during the ancien régime of pre-revolutionary France, référendaires worked under the Chancellor ('chancelier') in the Paris parlement, a provincial appellate court.17

Whatever the exact nature of referendarii may have been, it appears that, at the time of the creation of the European Coal and Steel Community in 1951, the office of legal secretary was not unknown to the judicial systems of the original EU Member States, all of which, broadly speaking, hailed from the civil law tradition. In Germany, 'legal support workers' had assisted judges at the Prussian Supreme Administrative Law Court, established in 1875.18 Still today, the judges at German federal supreme courts are assisted by academic collaborators.19 At the Federal Constitutional Court, founded in 1951, all academic collaborators are, in principle, legally qualified to serve as judges.20 The duties of the collaborators are, however, limited to assisting the judges; they do not vote on the decisions.21 Similarly, at the French Court of Cassation, temporarily assigned judges with reporting and documentation duties work as conseillers référendaires as part of their careers.22 They participate in the court's work and deliberations but may only vote in some cases, notably when they act as rapporteurs.23 Before assuming their functions at the Court of Cassation, the conseillers référendaires must have served for a few years on the bench in lower-level courts. They must be younger than 47 at the time of their nomination for a 10-year mandate, after which they generally return to lower courts.24 As judges, they enjoy the same guarantees of non-removability from office as the members of the Court of Cassation.25 Further, the judges of the Italian Constitutional Court are also assisted by judicial assistants.26 These judicial assistants are ordinary or administrative judges, university professors and researchers, or civil servants, who perform research and case-handling functions.27 They are chosen directly by individual judges for a maximum period of nine years, which coincides with the length of the term of the judges themselves.28

Beyond the original Member States, legal secretaries are a feature of the judicial organisation of other Romano-Germanic legal systems, such as that of Denmark (joined the EEC in 1973) and Finland (joined first the EEA in 1994, then the EU in 1995). At the Supreme Court of Denmark, such lawyers have existed since King Frederik III's Order of 14 February 1661 founded the Court's administration. It was originally provided that two legal secretaries, one from nobility and the other from the merchant classes, should keep records of the proceedings and draft documents, which laid the foundation for the present-day office of the judicial clerks.29 They record the minutes of the judges' voting in deliberations and participate in the handling and preparation of cases, assisting the reporting judge.30 Most of them have five to 10 years of professional experience upon recruitment and stay at the Supreme Court for two to three years.31 The Finnish Supreme Court Act of 1918 established the office of rapporteurs (esittelijä).32 The persons appointed to this office had to be 'learned citizens from the legal profession with experience and skill in judging'.33 The office of esittelijä continues to fulfil an essential role in the judicial work of both the Supreme Court and the Supreme Administrative Court, as these court lawyers prepare the draft judgment for the judges. Under Section 118(2) of the Constitution of Finland, the esittelijä may file a dissenting opinion to the judgment, which relieves him or her of any official responsibility for the decision. They may only be discharged from office under the same exceptional conditions as judges.34

Finally, in Switzerland, an EFTA State, legal secretaries (Gerichtsschreiber35) are employed at both the federal and cantonal courts.36 Originally, as an aspect of the Swiss democratic tradition, courts were formed of lay judges only, with a Gerichtsschreiber – literally a 'court writer' – to provide the judges with advice on the law. The first two Gerichtsschreiber were employed by the Swiss Federal Supreme Court in 1875.37 There, their primary task was, until the 1980s and 1990s,38 the 'draft[ing] of the written judgments after the decisions had been rendered in court'.39 With the court's increasing caseload, the Gerichtsschreiber are now also tasked with preparing the draft ruling in many cases, as well as the final text of rulings based on the remarks made by the members of the division.40 Gerichtsschreiber sign the judgment and may dissent from the court's judgment in certain circumstances.41 A candidate for the position must either be a licensed lawyer or hold a doctorate in law.42 While some work for the Federal Supreme Court for 20 to 30 years, more often they serve for around 10 years.43

ii Assisting judges in common law jurisdictions – history and current practice

The United States was the first common law jurisdiction to provide for assistants to higher court judges. The position of law clerk has evolved over time.44 In 1905, US Supreme Court Justice David Brewer considered that his 'stenographer' was 'simply a typewriter, a fountain pen, used by the judge to facilitate his work'.45 Until the 1930s, some law clerks were still in the process of completing their legal education by attending night law school while clerking at the US Supreme Court. Although in earlier days the law clerks at the US Supreme Court could stay with the Justices for several years, nowadays the clerkships last one year.46 However, the law clerks of today are chosen from among the nation's top graduates and charged with tasks commensurate with their legal qualifications.47 The law clerks' work is particularly essential in aiding the Justices with reviewing the approximately 7,000 to 8,000 petitions for certiorari – that is, applications for leave to appeal – that are filed yearly and identifying the 80 or so cases that will end up on the Court's plenary review docket.48 The composition of the body of law clerks, including their backgrounds and political views, is a matter of considerable public interest and their selection is closely followed by specialised media in an effort to 'read the tea leaves' for possible trends in the Court's future jurisprudence.49 The fact that the Justices appear to rely on a relatively small number of federal appellate court 'feeder' judges from whom most of the law clerks are drawn further refines the selection process.50 Justice Clarence Thomas has openly admitted that he hires only law clerks who have previously clerked for a federal judge appointed by a Republican President and who share his worldview. He has reportedly said: 'I won't hire clerks who have profound disagreements with me . . . It's like trying to train a pig. It wastes your time, and it aggravates the pig.'51 There is a vast library of material – both first-hand accounts by former clerks and empirical studies by political scientists – written on the relative influence, or otherwise, of these law clerks.52

In the United Kingdom, judicial assistants are a far more recent creation with the first judicial assistants (then called legal assistants) appointed to the House of Lords in 2000. This was considered to symbolise part of the modernisation of the House of Lords.53 At present, the Justices of the UK Supreme Court, who also sit in the Judicial Committee of the Privy Council, are supported by seven judicial assistants in total who carry out research in connection with appeals and summarise applications for permission to appeal. It is a temporary fixed-term position lasting from September to the following July. Additionally, the court employs one judicial assistant on a permanent basis. An applicant must be 'a solicitor, barrister or advocate qualified in one of the UK jurisdictions, having completed a training contract or pupillage by the start of the appointment.'54 At the Court of Appeal of England and Wales, the 'Judicial Assistant Scheme', founded in 1997, is different. Unlike the Supreme Court, the Court of Appeal hires trainee solicitors and pupil barristers for a period running from October to July of the following year.55 In 2019, the High Court of England and Wales introduced a Judicial Assistant scheme, following pilot schemes in 2017 and 2018 and modelled on the Judicial Assistant position in the Court of Appeal.56 A rather more 'European' position may be found at the United Kingdom Competition Appeal Tribunal (the CAT), a specialised tribunal dedicated to competition matters.57 At the CAT, there are four positions specifically titled 'Referendaire'.58 These lawyers work directly for the president, chairmen and registrar. According to the CAT itself, the post 'corresponds to that of a Référendaire at the European [Union's] General Court but also encompasses a case handling role central to the work of the Tribunal'.59 Referendaires typically serve at the CAT for three to five years.

Law clerks exist throughout the common law world. The Courts Service of Ireland employs six 'judicial research assistants' upon two-year non-renewable contracts. They are a conscious mix of solicitors, barristers, and legal academics and work for judges of the High, Circuit and District Courts.60 Genevieve Coonan, herself a former Senior Judicial Researcher, notes that 'in general the majority of Research Assistants are recent honour graduates of Irish universities'.61 Research Assistants are not assigned individually to each judge, but rather work in a pool.62 The Justices of the High Court of Australia have been assisted by 'Associates' since the Court's inception in 1903.63 These Associateships are for 12 months. The successful candidate 'will have graduated with first class honours and will preferably have research experience (and often experience working for a law firm or university or another court)'.64 As Michael Kirby, formerly a Justice of the High Court of Australia, has said, '[m]any of them are young law graduates for whom a year working for a judge is a great opportunity to see the court from the inside'.65 Associates are appointed by their justice two to three years in advance of their terms. The great majority have not clerked previously, in contrast to those at the US Supreme Court.66 Other Australian courts also employ law clerks, whose roles may vary.67 Law clerks are also found inter alia at the Supreme Court of Canada, where 27 law clerks, comprising both English and French speakers, work for one year for the Chief Justice and Puisne judges,68 and the Supreme Court of New Zealand where they are titled 'judges' clerks'.69 The Constitutional Court of South Africa employs two South African law clerks for each Justice who, rather innovatively, may also employ one 'foreign law clerk' each.70

iii Comparison between the common law and civil law roles

While the position of law clerks in common law jurisdictions and their civil law counterparts may initially seem rather similar, the foregoing section has shown that the profiles required of such legal assistants or court lawyers and their length of service vary greatly. In civil law jurisdictions, the lawyers assisting judges are relatively more senior and stay in their role for several years. Some legal systems charge these lawyers with the task of presenting the case to the bench in their own name. As rapporteurs, not only are they perhaps themselves able to sign the final decision, but they may also file a dissenting opinion whenever their proposed text is not followed, as is the case in Finland and Switzerland. These positions often require a number of years of relevant experience, including judicial training or other qualifications required to serve as a judge. They may furthermore constitute a long-term career, with autonomous guarantees of independence. By contrast, in common law jurisdictions, law clerks are invariably starting out on their legal careers and assist a particular judge for approximately one year, conducting research and drafting memoranda. The exception to the typical common law position is the employment of referendaires at the CAT. But given the CAT's set-up – in many ways a halfway house between an English court and a European court by design – this is perfectly logical.

From this comparative overview, we can establish that the civil law and common law roles of court lawyers and legal assistants are quite different. While in essence the idea is the same – that the judges are assisted by someone junior to them – there are substantial, almost existential differences between these positions. In legal systems following the civil law tradition, the role of such lawyers is rather characterised by the independent reporting duties reminiscent of the administrative-judicial office of referendarius, whereas, by contrast, the shorter 'clerking' experience of their common law counterparts highlights their more junior status. While the legal secretaries of civil law countries also serve for several years in their position and have the legal qualification to act as judge, the law clerks of common law jurisdictions tend to be more junior, serve for a shorter term and with less independence as to their functions.71

Seen against this background, the office of legal secretary at the European Courts appears to derive predominantly from the civil law tradition of 'court lawyers', rather than from the model of common law 'law clerks'. Analysing the origins of the legal secretaries in the European Courts is helpful to understand the tasks and responsibilities attributed to the position as it exists today. That said, there are also significant differences between the référendaires and their national counterparts in civil law jurisdictions, whose roles are, moreover, far from uniform. Most significantly, as will be shown below, legal secretaries at the European Courts do not author decisions independently as rapporteurs in their own name, but work under the direct supervision of the judges and advocates general. With this in mind, we turn next to exploring the role of the legal secretaries at the CJEU and the EFTA Court.

III THE ROLE OF LEGAL SECRETARIES AT THE EUROPEAN COURTS

i CJEU

Référendaires have been a feature of the CJEU since the creation of the Court of Justice of the European Coal and Steel Community in 1952.72 Originally, they were known as attachés who were required to have 'adequate legal training' and to take an oath before the Court before entering upon their duties.73 During the CJEU's first two decades, the seven members of the Court74 each had one legal secretary who was a permanent employee.75 Each new member would inherit his or her predecessor's référendaire. As the CJEU expanded – on account of the increase in the number of Member States, as well as the size of the Court's docket – the number of référendaires increased in tandem. At the time of writing, there are 28 judges and 11 advocates general at the Court of Justice, each normally with three to four legal secretaries in their cabinet. For the time being, the judges at the General Court each have three legal secretaries. Presently, the General Court comprises 46 judges, with their number set to increase to 56 in October 2019. The presidents and vice presidents of the courts have additional référendaires for specific management, organisational and revision tasks at their disposal.

The basic role of legal secretaries at the CJEU has remained the same over the years: they are the personal legal advisers to the judges or advocates general. The etymology of the title référendaire derives from the Latin verb referre (to inform, report)76 and, as such, according to one definition, a référendaire is 'the one who must report what needs to be reported'.77 This description of the role is fitting. At the Court of Justice, a judge charged with the task of rapporteur and an advocate general are designated in every case, even when the latter issues no published opinion, and one référendaire from each member's cabinet is allocated the responsibility for managing the case. The most essential tasks of the référendaires working for the Judge-Rapporteur include the drafting of judgments and other documents, notably the preliminary report (rapport préalable) of the case, which presents the facts of the case, the arguments of the parties, a first analysis of the legal questions raised by the case, as well as its suggested procedural treatment,78 and assisting him or her in the preparation of notes and memoranda during deliberations in cases where other judges act as rapporteurs.79

To the outside world, the référendaires are visible at oral hearings, where they – one from the judge-rapporteur's cabinet and one from the advocate general's (in cases where the latter's opinion is requested) – sit at a separate desk on one side of the courtroom. However, référendaires do not have the right to put questions directly to the parties in the proceedings and their role is therefore limited to following the hearing, taking notes and, if necessary, communicating with their judge or advocate general electronically or by the intermediary of the court's usher. Référendaires also assist the judges during the written phase of the courts' deliberations. They discuss the case with the judge and, where necessary, help draft memoranda outlining the judge's position. However, they do not attend the oral délibéré, a meeting at which the judges agree on the final text of the judgment. It is worth underlining that frequently many important questions are only resolved at this stage, in the exclusive presence of judges. Hence, the référendaires' views, if not shared by the judges themselves, cannot become included in the final judgment.80 In fact, although sometimes referred to as 'ghost-writers'81 or 'men and women in the shadows',82 the legal secretaries are civil servants who perform their work under the direct supervision of the members of the European Courts.

Aside from the case management work, référendaires may from time to time assist the judges or advocates general in their other tasks, including the work of the Court's internal committees, such as the Administrative or the Rules of Procedure Committees, researching a particular issue of law more generally, or making preparations for the members' representative duties. The cabinets may host trainees (stagiaires) and visiting members from national judiciaries (magistrats nationaux) and référendaires take part in their training. While the language revision and translation of official court documents is carried out by the CJEU's specialised linguistic services, the référendaires are often invited to proofread certain language versions before their publication, particularly in cases where their judge acts as judge-rapporteur, to ensure substantive accuracy. Similarly, they verify the summaries of judgments prepared by the administrators of the CJEU's Research and Documentation service in the cases for the management of which they have responsibility in the judge-rapporteur's cabinet.

Despite these myriad tasks, the texts that govern the procedure before the EU courts make no mention of référendaires whatsoever.83 It follows that, while legal secretaries may undertake administrative tasks in their capacity as officials and agents of the EU, they can only perform judicial work when they act in the name of their direct superior, the judge or advocate general for whom they work. As Stéphane Gervasoni, judge at the General Court and formerly a référendaire himself, describes it: '[l]e référendaire sans son juge n'a pas d'existence autonome'84 – the legal secretary does not have any independent judicial status. It follows that référendaires do not author any judicial documents in their own name, except through agency (per procurationem). The judges or advocates general sign off all the work and the documents always bear their name.

As officials or agents of the EU, référendaires are covered by the EU Staff Regulations.85 In particular, the rules governing the rights and obligations of EU officials and agents, such as impartiality, conflicts of interest, and good behaviour, apply to them. Moreover, acknowledging the particular nature of the work and the special relationship of trust between référendaires and their judge or advocate general, the Court adopted in 2009 the Code of Conduct for référendaires,86 setting out more detailed obligations as regards, in particular, conflicts of interest in the handling of cases, ex parte contacts, as well as external activities of référendaires, such as academic lecturing, other speaking engagements, and publications. To the extent such other activities touch on the CJEU's work, they are subject to a requirement of pre-notification to the president.

The référendaires are employed by the Court on the proposal of the judge or advocate general concerned. As their work is highly technical in nature, qualities such as the legal qualifications, prior judicial experience or language skills of the candidate, tend to play an important role in the hiring process. There are no formal recruitment schemes, such as in national civil services or in other EU institutions, including other directorates of the CJEU.87 The decision to hire a référendaire is the prerogative of each judge or advocate general and the appointment procedure is characterised by the proposal of a single candidate, who is then either accepted or rejected by the appointing authority, that is, the Court of Justice or the General Court. In practice, the proposal of the judge or advocate general concerned is submitted to the members' plenary meeting and almost always accepted without discussion. The European Union Civil Service Tribunal described this discretionary aspect of the hiring process in the following way:

That power of proposal is not governed by any legal rules, as the member concerned chooses freely the person whom he intends to propose, by the method which he considers appropriate. The fact that there is no systematic organisation of an official recruitment procedure for that category of temporary staff within the [EU] courts results from the relationship of trust between the staff concerned and the members of those courts to which they are assigned. Legal secretaries are recruited intuitu personae, the staff concerned being selected both for their professional and personal qualities and for their ability to adapt to the methods of working specific to the member concerned and those of the whole of his Chambers'.88

In fact, according to the EU courts' case law, référendaires are recruited in the same manner as the personal staff of a Commissioner at the European Commission.89 The member of the court is the master of his or her cabinet and may organise its functioning independently of formal procedures. The corollary of this independence is that the member may also dismiss a référendaire at will. Thus, while EU judges and advocates general may only be removed from office by a unanimous decision of the Court of Justice,90 no guarantees of permanency apply in the case of référendaires.

That the selection of référendaires is not governed by any specific legal rules means that there are no gender, nationality or other quotas. According to publicly available information, approximately 66 per cent of legal secretaries at the Court of Justice are men and 34 per cent women, while at the General Court, the respective figures are around 70 per cent and 30 per cent.91 As regards the nationality distribution, the cabinet staff in a supranational tribunal representing 28 Member States is, almost by definition, relatively diverse.92 However, among the référendaires, some Member State nationalities clearly dominate, while others are proportionately underrepresented. For historical reasons, French remains the working language of the CJEU.93 According to a 2015 study by Zhang, this choice bears rather significantly on the composition of the judges' cabinets, as almost half of the référendaires are of French, Belgian or Luxembourgish nationality and around 80 per cent of them were educated in the law schools of these three countries.94 While the exact numbers may lend themselves to discussion, the trend identified by Zhang is certainly correct.

Référendaires typically serve at the CJEU for several years. A good number work until the end of their judge's or advocate general's renewable six-year mandate,95 while a few dedicate their careers to the role, working in different cabinets over time and eventually retire from the position in their mid-sixties. According to Sally Kenney, the two longest-serving référendaires at the CJEU served 34 years each.96 The varying seniority corresponds to diverse previous professional experience. While some référendaires may have initially been offered the position in their late twenties on the sole basis of their academic record or performance during their CJEU internship, the more senior legal secretaries may have previously served as civil servants, law professors, practising lawyers, diplomats or even judges. It may be noted that a rather significant number of current members of the CJEU have previously served as référendaires.97

ii EFTA Court

Legal secretaries have worked at the EFTA Court since its foundation in 1994. As the EFTA Court was set up to mirror the CJEU in the EFTA pillar of the EEA Agreement, there is much common organisational DNA shared between the two judicial bodies. The EFTA Court not only employs legal secretaries, but, like the CJEU, it also operates a cabinet system, with the cabinet being the judge's 'empire'.98 However, that shared DNA only goes so far as, for example, there are no advocates general at the EFTA Court and the Court's working language is English.99

From the EFTA Court's inception until 2011, each judge, including the president, had one legal secretary. As a direct result of the increasing size of the EFTA Court's docket, particularly from 2011 onwards, the number of legal secretaries employed in each cabinet has increased correspondingly. From 2012, the president engaged a second legal secretary with the other judges hiring another legal secretary to work in both cabinets. In 2015, the practice evolved so that all judges had two legal secretaries each. Finally, since 2016, the president of the EFTA Court has engaged three legal secretaries with the other judges each employing two legal secretaries in their respective chambers. This practice may be changing as currently there are six legal secretaries at the EFTA Court with two in each cabinet. Were the EFTA Court's jurisdiction to expand in the future, whether through the potential accession to the EFTA pillar of the EEA by either Switzerland or the United Kingdom, or both (post-Brexit), or potentially more likely as a result of those countries 'docking' to the EFTA pillar's institutions as part of more structured trading relationships with the European Union,100 it may be anticipated that additional legal secretaries would be engaged.

The role of a legal secretary at the EFTA Court is broadly similar to that of a référendaire at the CJEU: they are the personal legal advisers to the judges. The casework of the legal secretaries begins when the president of the Court allocates a case to a judge-rapporteur. Unlike at the CJEU, at the EFTA Court the president regularly chooses to be the judge-rapporteur him or herself, and therefore his or her legal secretaries also provide support for this role. In addition, legal secretaries in the president's cabinet prepare the first draft of all procedural orders – including for instance applications for leave to intervene – as these are the responsibility of the president. Once allocated, the assigned judge-rapporteur will give that case to one of his or her own legal secretaries who will be responsible for the active case-management of the proceedings and who will advise the judge on any procedural deadlines that may need setting.101 The legal secretary prepares procedural documents, such as the Preliminary Report followed by the Report for the Hearing102 and the draft judgment for the judge-rapporteur. The Preliminary Report tends to be a significantly less detailed procedural document when compared to the rapport préalable at the CJEU. Nevertheless, at the EFTA Court it is an important 'punctuation mark' within the proceeding: the decision of the Court on the basis of the judge-rapporteur's recommendation in that document marks the formal change from the written to the oral procedure.103

Hearings are held in all but the most straightforward of cases at the EFTA Court – in such circumstances the parties will have given their express consent that the case be dealt with without a hearing.104 During the hearing, one legal secretary from each cabinet sits on the legal secretaries' desk at one side of the courtroom. As with their counterparts at the CJEU, legal secretaries follow the proceedings taking notes and cannot address the parties or the Court, although they may occasionally pass a note, either electronically or via the Court's usher, to their judge. Once the judge-rapporteur has presented his or her draft judgment, the legal secretaries in the other cabinets will prepare comments and propose amendments to their judge during the deliberations, which are conducted predominantly in writing. They will also prepare notes and draft memoranda if required. The legal secretaries do not attend the judges' reading, a meeting at which the judges agree on the final text of the judgment. However, a practice newly instigated in 2018 has seen the development of a legal secretary's reading of certain judgments subject to final control by the judges.

Moreover, legal secretaries will prepare the press release on a case, as well as translate it into German, Icelandic and Norwegian, once the Court's judgment is ready to be handed down. While originally the EFTA Court did employ lawyer linguists, this is no longer the case: all other necessary translations are outsourced before being revised within the Court. Legal secretaries will also draft the summaries of the judgments for the Court's Annual Reports for those cases in which their judge was rapporteur.

Apart from case-management work, legal secretaries assist in the broader judicial work of their judges. This may include drafting speeches and papers, or conducting specific pieces of legal research, organising and speaking at conferences, or assisting on the revision of the Rules of Procedure. Legal secretaries often engage in academic lecturing, other speaking engagements and write in legal publications. Unlike at the CJEU, there is no requirement that these be pre-notified to the president, but the judge for whom they work will invariably be notified, not least as a courtesy. The legal secretaries will typically be responsible for the instruction of any trainees hired, or visiting 'legal secretaries' hosted from national judiciaries while they are a part of the cabinet.

As the legal secretaries are the judges' personal legal advisers, their hiring is undertaken directly. The judges frequently offer these positions to lawyers they have come across earlier in their careers and whom they consider to have the requisite skills for the position, or alternatively an open application process may be conducted. Invariably, the judges require candidates to be specialised in or have experience of working with EEA or EU law, and be fluent in English, although proficiency in a number of languages remains desirable. Where a public application process has been conducted, typically with advertisements placed in the national press, a series of interviews takes place. Usually, several years of relevant experience are required, as well as postgraduate or doctorate studies in the field. It is not essential that the legal secretary hold a particular nationality, but often a judge will hire a candidate from his or her own country or who shares his or her mother tongue. Applicants will frequently have worked previously at the CJEU or the EFTA Court often having begun as a trainee or stagiaire. Nevertheless, at the EFTA Court the majority of legal secretaries will already be known to a particular judge from their home country – sometimes as a result of the legal secretary's own legal education.105

Once hired, the EFTA Court Staff Regulations and Staff Rules govern the status of legal secretaries. Interestingly, staff disputes are dealt with by the EFTA Court Advisory Board and appeals from the Advisory Board lie to the Administrative Tribunal of the International Labour Organization.106 Typically, the youngest legal secretaries are around 27, with the oldest being around 40. However, the role of a legal secretary is an impermanent one – linked as it is to the personal mandate of the hiring judge. Frequently though, at least for a transitionary period, legal secretaries will be 'inherited' by an incoming judge. Legal secretaries at the EFTA Court tend to serve for periods between one and seven years.

IV CONCLUSION

This chapter has demonstrated that the origins of the position of legal secretary at the European Courts derives predominantly from that of lawyers assisting judges in legal systems following the civil law tradition. As such, it is characterised by their advisory and reporting tasks and the relative seniority and longer service compared with the generally more junior position that law clerks in common law jurisdictions occupy. However, although the legal secretaries' position resembles that of their civil law counterparts, some writers consider the cabinet system, where the court lawyers are directly attached to a particular judge, a reflection of the common law tradition.107 To a certain degree, therefore, the broader setting of the legal secretaries' work at the European Courts may reflect both traditions.

Nevertheless, the common law influence should not be overstated and direct analogies between the role of legal secretaries at the European Courts and that of the law clerks of the US Supreme Court, for example, are misplaced. At the same time, unlike some of their counterparts in civil law jurisdictions, legal secretaries at the European Courts do not perform judicial acts in their own name. It is worth emphasising that each national or European example has its own particular characteristics, be it a common law or a civil law jurisdiction. Although the European Courts do not specifically follow either legal tradition, one of the hallmarks of EU and EEA law is the cross-fertilisation of legal concepts and institutions – and the role of legal secretaries is no exception in this regard.

This article has also shown that the role of legal secretaries is largely identical at both the CJEU and the EFTA Court. As the members' personal legal advisers, they play an important, yet ancillary, part in the judicial enterprise of the European Courts. Although the legal secretaries are tasked with considerable responsibilities in the management of the cases brought before these judicial bodies, they have, at the same time, no independent role in the decision-making process.108 As has been stated in this article and elsewhere, their role is to act as judges' 'right-hands' or 'sparring partner[s]'.109 They assist the judges in their role in judging cases by ensuring that legal problems are considered and tackled, and arguments are refined and sharpened, from a number of legal perspectives and, potentially, legal traditions. Longer-standing legal secretaries also provide an element of internal institutional memory. A significant common feature common to both European Courts is the cabinet system, which allows the courts' members to exercise direct control over their legal secretaries' work. Any potential excesses, which the responsibilities and relatively longer service of legal secretaries could in theory provoke, are thus maintained in check. That being said, legal secretaries, as they enable the decision-making activity of the judges, contribute significantly – in the spirit of the reporting duties incumbent on the office of referendarius – to the day-to-day administration of European justice.


Footnotes

1 Michael-James Clifton is a barrister (England & Wales, and Ireland) and Chef de Cabinet in the Chambers of Judge Bernd Hammermann, EFTA Court, and Pekka Pohjankoski Esq (N.Y.) is a trainee judge at the District Court of Helsinki, Finland and was previously Legal Secretary (référendaire) to Judge Allan Rosas at the Court of Justice of the European Union. The views expressed are entirely personal to the authors.

2 Pursuant to Article 19 of the Treaty on European Union (TEU), the Court of Justice of the European Union (CJEU) includes the Court of Justice, the General Court and specialised courts. At the time of writing, no specialised courts exist.

3 The EEA Agreement brings together the 28 EU Member States and the three EFTA States (Norway, Iceland, Liechenstein) who have signed the EEA Agreement. Switzerland, an EFTA State, is not party to the EEA Agreement.

4 On the relationship of the two courts, see, e.g., C Baudenbacher 'The EFTA Court and Court of Justice of the European Union: Coming in Parts but Winning Together', in A Rosas, E Levits and Y Bot (eds), The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-law (T. M. C. Asser Press, 2013).

5 See, e.g., E Stein, 'Lawyers, Judges, and the Making of a Transnational Constitution' (1981) 75 (1) American Journal of International Law 1; H Rasmussen, On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Dordrecht, Martinus Nijhoff, 1986); R Dehousse, The European Court of Justice: the Politics of Judicial Integration (Basingstoke: Macmillan, 1998); M Adams, H de Waele, J Meeusen and G Straetmans (eds), Judging Europe's Judges: The Legitimacy of the Case Law of the European Court of Justice (Hart Publishing, 2013).

6 See, e.g., M Bobek, 'The Court of Justice of the European Union' in A Arnull & D Chalmers (eds.), The Oxford Handbook of European Union Law (Oxford University Press, 2014), p. 168 (where the author describes it as 'regrettable' that legal secretaries have been subject to little sustained research). See also A Cohen, '“Dix personnages majestueux en longue robe amarante.” La formation de la Cour de justice des Communautés européennes' (2010) 60 (2) Revue française de science politique 227, at 231 ('Mais la plupart des travaux sur le processus de constitutionnalisation restent muets . . . sur les . . . référendaires . . . , leur carrière professionnelle avant et après leur passage par la Cour, leur formation et leur spécialisation, sans parler de leurs origines sociales, de leurs opinions politiques ou de leurs convictions idéologiques . . . ').

7 At the CJEU, where French is the working language, the title référendaire is commonly used, while 'legal secretary' is prevalent at the English-speaking EFTA Court; for the purposes of this article, these two terms are used interchangeably.

8 See J Bast, 'European Economic Area (EEA)' in Max Planck Encyclopedia of Public International Law 632 (Oxford University Press, 2010). See also Case E-9/97, Sveinbjörnsdóttir [1998] EFTA Ct. Rep. 95, paragraph 59. The CJEU has jurisdiction over EU law and the EEA Agreement insofar as the latter is applied in the EU Member States; the EFTA Court has jurisdiction over the EEA Agreement as regards the EFTA States which are parties to the EEA Agreement.

9 M Johansson, 'The Role and Importance of Legal Secretaries' (3 July 2007) Competition Law Insight, p 11.

10 This chapter does not address comparable positions in international courts or arbitral tribunals. Comparable positions exist today at certain international courts, such as the European Court of Human Rights (ECtHR) and the International Court of Justice (ICJ), but these appear less relevant for the study. In fact, unlike in the cabinet system of the European Courts, legal secretaries at the ECtHR work in a 'pool' and perform their duties under the supervision of the court's registrar. See, e.g., C Westerdiek, 'The organisation of work of legal secretaries in the Registry of the European Court of Human Rights', paper presented at the 3CSG conference in Bled (Slovenia), 29–30 September 2005, available at
www.us-rs.si/o-sodiscu/konference/3csg-bled-29-30-september-2005/contributions-3406/paper-by-
ms-claudia-westerdiek-european-court-of-human-rights/, accessed 30 December 2017. Similarly, the ICJ operated for a long time a registry-managed pool of legal officers, although it now has individual associate legal officers or law clerks attributed to each judge. M Cohen, 'The Continuing Impact of French Legal Culture on the International Court of Justice', in A Roberts, P B Stephan, P H Verdier and M Versteeg, Comparative International Law (OUP, 2018), pp. 202–203. The role played by tribunal secretaries in international arbitration is also not addressed here. On tribunal secretaries, see, e.g., K Singh, S Chandran, A Foo, S Premkumar (Clifford Chance), 'Tribunal secretaries: a tale of dependence and independence' (11 December 2016), Kluwer Arbitration Blog available at http://arbitrationblog.kluwerarbitration.com/
2016/12/11/tribunal-secretaries-a-tale-of-dependence-and-independence/, accessed 31 December 2017.

11 The members' work in the European Courts is organised around their chambers or cabinet, to which the judge or advocate general personally selects his or her référendaires at complete liberty. The word cabinet may bring to mind images of political affiliation, but the selection and role of legal secretaries is, in principle, apolitical.

12 See Referendarios – The Second Five Ranks, Titles, Offices, and Ranks, a study by the Order of St Andrew of the Ecumenical Patriarchate, available at www.archons.org/titles-offices-and-ranks/the-second-five-
ranks?content=Referendarios+–+Ῥεφερενδάριος, accessed 19 March 2019.

13 See, Referendarii by Johann Peter Kirsch, Catholic Encyclopedia (1913), Volume 12, The Encyclopaedia Press, referencing Bangen, Die röm. Kurie (Münster, 1864), 370 sqq. (Signatura justitiœ), 391 sqq. (Sign. gaatiœ); Thomassinus, Vetus et nova ecclesiœ disciplina, III (Lyons, 1705), 546 sqq.; Die kathol. Kirche unserer Zeit, I (Berlin, 1899), 464-6. See also J B Bury, 'Magistri Scriniorum, ANTIGRAPHES and REPHERENARIOI', (1910) 21 Harvard Studies in Classical Philology 29 ('The referendarii, who might be described as legal secretaries of the Emperor . . . acted as bearers of the unwritten answers of the Emperor, in judicial matters, to the persons concerned, and they might be employed on various special missions. From the nature of the case they might possess much influence on the imperial decisions',), cited in 'The Life and Works of Our Holy Father Daniel The Stylite' in Three Byzantine Saints: Contemporary Biographies of St. Daniel the Stylite, St. Theodore of Sykeon and St. John the Almsgiver, trans. Elizabeth Dawes, and introductions and notes by Norman H Baynes, (London, 1948), notes ch. 76, explaining the translation of the Greek word raipherendarion as 'a legal secretary of the Emperor'.

14 See Referendarii by Johann Peter Kirsch, Catholic Encyclopedia (1913), Volume 12, The Encyclopaedia Press, referencing Bangen, Die röm. Kurie (Münster, 1864), 370 sqq. (Signatura justitiœ), 391 sqq. (Sign. gaatiœ); Thomassinus, Vetus et nova ecclesiœ disciplina, III (Lyons, 1705), 546 sqq.; Die kathol. Kirche unserer Zeit, I (Berlin, 1899), 464–6.

15 C S Celenza, Renaissance Humanism and the Papal Curia: Lapo Da Castiglionchio the Younger's De curiae commodis (University of Michigan Press, 1999), p. 165. Historical scholarship has concluded that the referendarii acquired substantial influence in the Vatican during the 15th Century, as they were themselves allowed to sign requests for grace addressed to the Pope, although in his presence. See, Referendarii by Johann Peter Kirsch, Catholic Encyclopedia (1913), Volume 12, The Encyclopaedia Press, referencing Bangen, Die röm. Kurie (Münster, 1864), 370 sqq. (Signatura justitiœ), 391 sqq. (Sign. gaatiœ); Thomassinus, Vetus et nova ecclesiœ disciplina, III (Lyons, 1705), 546 sqq.; Die kathol. Kirche unserer Zeit, I (Berlin, 1899), 464–6.

16 See D de Maillane, Dictionnaire de Droit Canonique et de Pratique Bénéficiale, Second Edition (1761), p. 619 ('il faut qu'ils foient Docteurs en Droit Civil & Canonique').

17 S Gervasoni, 'Des Referendaires et de la Magistrature Communautaire' in Melanges en l'Honneur de Jean-Pierre Puissochet 'L'Etat Souverain dans le Monde d'aujourd'hui', Editions A Pedone (2008), p. 105.

18 F Scheffczyk, 'The Role of the Judicial Clerks at the German Federal Constitutional Court', in A Zegrean and M Costinescu (eds) The Role of Assistant-Magistrates in the Jurisdiction of Constitutional Courts (Universul Juridic, Bucharest, 2016), p. 74. On the creation of the Prussian administrative law courts, see K F Ledford, 'Formalizing the Rule of Law in Prussia: The Supreme Administrative Law Court, 1876-1914' (2004) 37 (2) Central European History 203, pp. 212–214.

19 See www.bgh-hiwis.de/ueberuns.htm, accessed 30 December 2017.

20 F Scheffczyk, 'The Role of the Judicial Clerks at the German Federal Constitutional Court', in A Zegrean and M Costinescu (eds) The Role of Assistant-Magistrates in the Jurisdiction of Constitutional Courts (Universul Juridic, Bucharest, 2016), p. 75.

21 ibid., p. 77. The clerks of the Federal Constitutional Court, which has two chambers (Senat), have nonetheless been nicknamed the 'third chamber' on account of their alleged influence in the drafting of judgments. See, e.g/ S Jehle, 'Der heimliche dritte Senat in Karlsruhe' Stuttgarter-Zeitung.de, 3 January 2015, available at www.stuttgarter-zeitung.de/inhalt.bundesverfassungsgericht-der-heimliche-
dritte-senat-in-karlsruhe.68baaf04-08db-49c2-a843-395b4747f985.html, accessed 30 December 2017. Their influence should however not be overstated. Cf C Körner, 'Der “Dritte Senat”', Legal Tribune Online (30 October 2012), available at www.lto.de/recht/job-karriere/j/jobprofil-wissenschaftlicher-mitarbeiter-am-bundesverfassungsgericht/, accessed 30 December 2017 (according to which the academic assistants 'pedal' the Court forward, but 'do not sit on the handlebars').

22 On the creation of the position of conseillers référendaires, see P Hébraud, 'Magistrats. Choix du poste de réaffectation' (1967) 65 (spec. no. 7) Revue trimestrielle de droit civil 442.

23 See Article L. 431-3 of the code de l'organisation judiciaire.

24 Répertoire de procédure civile, Article 5 Conseillers référendaires, www.dalloz.fr.

25 ibid.

26 The position was created in 1958. T Grieco, 'The Role of Judicial Assistants within the Italian Constitutional Court', in A Zegrean and M Costinescu (eds) The Role of Assistant-Magistrates in the Jurisdiction of Constitutional Courts (Universul Juridic, Bucharest, 2016), pp. 94–96.

27 ibid., 94–96, 100.

28 ibid.

29 O Dybdahl, 'Højesteret – en arbejdsplads i Danmark' (1988) Fulmægtigen 27.

30 Depending on the function performed, they are known by titles such as protokolsekretær (protocol officer) or referendar (legal secretary). B Dahl, 'Højesteret og dommerfuldmægtigene', in R Plesner Skovby, N Palesa Bonde and D Pagh Asanovski (eds), Jubilæumskrift til Dommerfuldmægtigforeningen (Djøf Forlag, 2014), pp. 42–48.

31 ibid., p. 42.

32 Different positions in the administrative hierarchy exist within the function of esittelijä, including that of oikeussihteeri, which may be translated as 'legal secretary'. Another position is that of referendarieråd (in Swedish, the second national language of Finland), which clearly shares its etymology with référendaire.

33 See Finnish Supreme Court Act (Laki Korkeimmasta oikeudesta) 74A/1918, at 8§ (translation by authors).

34 See, Constitution of Finland (Suomen perustuslaki) 731/1999, 103§, 118§, paragraph 2, Supreme Court Act (Laki korkeimmasta oikeudesta) 665/2005, 13§. Heikki Kanninen, the Finnish nominated Judge at the General Court of the European Union as well as a former référendaire at the Court of Justice, has observed that the permanency of the office of esittelijä is a characteristic that particularly distinguishes it from that of référendaires at the CJEU, who are fully dependent on the judge or advocate general for whom they work. H Kanninen, 'KHO:n esittelijä ja EY:n tuomioistuimen lakimiesavustaja – sama työ, eri asema', in Korkein hallinto-oikeus 90 vuotta (Otavan Kirjapaino, 2008), p. 591.

35 The Swiss Federal Supreme Court's own English publications translate 'Gerichtsschreiber' as 'Court Clerk'. For the purposes of this chapter, to avoid confusion the German word will be used to refer to such positions in Switzerland. See, inter alia, 'The Swiss Federal Supreme Court: The Third Power within the Federal State 2017', available at www.bger.ch/files/live/sites/bger/files/pdf/Publikationen/bg_broschuere_a4_e.pdf, accessed 30 December 2017, p. 4. They are known in the French and Italian speaking linguistic communities of Switzerland as greffier or cancelliere, respectively. In the past, Gerichtsschreiber were also called 'Juristischer Sekretär' – translating roughly to 'legal secretary' (see § 25 of the former Criminal Procedure Code of the Canton of Zurich).

36 On cantonal courts, see, e.g., § 133 of the Gesetz über die Gerichts- und Behördenorganisation im Zivil- und Strafprozess (GOG), 211.1, 10.5.2010.

37 'The Swiss Federal Supreme Court: The Third Power within the Federal State 2017', available at www.bger.ch/files/live/sites/bger/files/pdf/Publikationen/bg_broschuere_a4_e.pdf, accessed 30 December 2017, p. 4.

38 Interview with Dr. iur. R Pedretti, LLM, Gerichtsschreiber at the Federal Supreme Court on 12 April 2016.

39 'The Swiss Federal Supreme Court: The Third Power within the Federal State 2017', available at www.bger.ch/files/live/sites/bger/files/pdf/Publikationen/bg_broschuere_a4_e.pdf, accessed 30 December 2017, p. 9.

40 In 2016, there were 132 court clerks at the Federal Supreme Court. ibid.

41 ibid.

42 Interview with Dr. iur. R Pedretti, LLM, Gerichtsschreiber at the Federal Supreme Court on 12 April 2016.

43 ibid. The Gerichtsschreiber have occasionally been alleged to have an oversize influence on the case law. See, B Skinner 'Bundesrichter nicken Urteile oft nur noch ab' Tages Anzeiger (22 May 2017), available at
www.tagesanzeiger.ch/schweiz/standard/bundesrichter-nicken-urteile-oft-nur-noch-ab/story/17105283, accessed on 30 December 2017, and Letter to the Editor of Tages Anzeiger from David Husmann, Rechtsanwalt, dated 22 May 2017, available at www.schadenanwaelte.ch/2017/06/04/david-husmann-im-
tagesanzeiger-zur-gerichtsschreiber-justiz-am-bundesgericht/ accessed on 30 December 2017 (characterising Swiss justice as 'Gerichtsschreiber justice').

44 R Bloom, 'The Origin of the Supreme Judicial Court Law Clerk System', Law Clerks' Society of the Supreme Judicial Court (available at http://sjclawclerks.socialaw.com/about-us/law-clerk-history/, accessed 6 April 2016). For a discussion of the relative contributions of Horace Gray and Oliver Wendell Holmes, Jr., to the founding and institutionalization of the one-year 'elbow clerkship', see P R Baier, 'The Law Clerks: Profile of an Institution', (1973) 26 Vanderbilt Law Review 1125; and C A Newland, 'Personal Assistants to Supreme Court Justices: The Law Clerks', (1961) 40 Oregon Law Review 299.

45 David J Brewer to William Rufus Day, 13 August 1905, Box 20, File A-C, William R Day Papers, Library of Congress, cited in C Cushman, 'The “Lost” Clerks of the White Court Era', in T C Peppers and C Cushman (eds), Of Courtiers and Kings: More Stories of Supreme Court Law Clerks and Their Justices, (University of Virginia Press, 2015), at p. 15.

46 For example, Justice Charles Evan Hughes retained Justice William Howard Taft's law clerk, whereas Justice Owen J Roberts kept one clerk for 15 years, and Justice Pierce Butler employed one clerk for 16 years. See M Swann, 'Clerks of the justices' in K Hall (ed), The Oxford Companion to the Supreme Court of the United States (Oxford University Press, 1992), p. 160.

47 D Lat, '“Of Courtiers and Kings”: An interview with Todd Peppers about Supreme Court Clerkships', Above the Law (9 December 2015), available at http://abovethelaw.com/2015/12/of-courtiers-and-kings-
an-interview-with-todd-peppers-about-supreme-court-clerkships/, accessed 30 December 2017. ('Now a candidate has to attend a top-ten law school, be editor-in-chief of the law review, be at the top of his or her class, have a previous judicial clerkship with a federal “feeder court” judge, and, increasingly, have experience in a corporate firm or as a government attorney to be considered.')

48 See www.supremecourt.gov/about/courtatwork.aspx, accessed 30 December 2017. While the law clerks work for the Justice who hired them, they also operate in a pool for the review of the petitions for certiorari. Justices who opt to share their law clerks through the pool receive a common 'pool memo' on each petition from a single law clerk; however, Justices Neil Gorsuch and Samuel Alito Jr are not part of this arrangement. A Liptak, 'Gorsuch, in Sign of Independence, Is Out of Supreme Court's Clerical Pool', The New York Times (1 May 2017), available at www.nytimes.com/2017/05/01/us/politics/gorsuch-supreme-
court-labor-pool-clerks.html?_r=0, accessed 30 December 2017. The use of the 'cert pool' has been criticised for allegedly giving too much power to individual law clerks over the treatment of a file. See, e.g., DR Stras, 'The Supreme Court's Gatekeepers: The Role of Law Clerks in the Certiorari Process', (2007) 85 Texas Law Review 947.

49 See, e.g., D Lat, 'Supreme Court Clerk Hiring Watch: An Analysis of the October Term 2016 Clerk Class', Above the law (4 August 2016), available at http://abovethelaw.com/2016/08/supreme-court-clerk-hiring-
watch-an-analysis-of-the-october-term-2016-clerk-class/ (accessed 30 December 2017). On the public scrutiny of law clerks before the 'Obamacare' litigation before the US Supreme Court, see, e.g., T Baines, 'Insight: The secret keepers: meet the U.S. Supreme Court clerks', Reuters US Edition (14 June 2012), available at www.reuters.com/article/us-usa-healthcare-court-clerks-idUSBRE85D17120120614, accessed 30 December 2017 ('. . . reviews of the clerks' resumes and interviews with their former employers and colleagues – and yes, even their parents – shed light on their personalities and predilections and, in a few instances, their possible healthcare politics.'). For a recent empirical study, see A Bonica, A S Chilton, J Goldin, K Rozema and M Sen, 'The Political Ideologies of Law Clerks' (2017) 19 (1) American Law and Economics Review 96.

50 See L Baum and C Ditslear, 'Supreme Court Clerkships and “Feeder” Judges' (2010) 31 (1) The Justice System Journal 26. The most successful feeder judges are also called 'super-feeders'. See, eg, AG Hess, 'The Collapse of the House that Ruth Built: The Impact of the Feeder System on Female Judges and the Federal Judiciary, 1970-2014' (2015) 24 Journal of Gender, Social Policy & the Law 61, at p. 65 (examining underrepresentation of women as feeder judges).

51 'A Sign of the Court's Polarization: Choice of Clerks', The New York Times (6 September 2010), available at www.nytimes.com/2010/09/07/us/politics/07clerks.html?_r=0, accessed 30 December 2017. See also, on the debate on alleged bias for candidates from Ivy League Law Schools: 'When It Comes to Hiring SCOTUS Clerks, Clarence Thomas Doesn't Care About the U.S. News Rankings', Above the Law (24 September 2012), available at http://abovethelaw.com/2012/09/when-it-comes-to-hiring-scotus-clerks-
clarence-thomas-still-doesnt-give-a-damn-about-the-u-s-news-rankings/, accessed 30 December 2017.

52 Recent examples include: A Ward and D L Weiden, Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court (New York University Press, 2006) and T C Peppers, Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk (Stanford University Press, 2006); C Cushman and T C Peppers (eds), Of Courtiers and Kings: More Stories of Supreme Court Law Clerks and Their Justices (University of Virginia Press, 2015).

53 C McIntyre, J Farmer and M Deacon, 'Supreme Courts: the US and UK compared', The Journal of the Law Society of Scotland (16 February 2015), available at: www.journalonline.co.uk/Magazine/60-2/1018891.aspx, accessed 30 Dec 2017. B Dickson, 'A Hard Act to Follow: The Bingham Court, 2000-8' in L Blom-Cooper, B Dickson and G Drewry (eds), The Judicial House of Lords: 1876-2009 (Oxford University Press, 2009) p. 263.

54 C McIntyre, J Farmer and M Deacon, 'Supreme Courts: the US and UK compared', The Journal of the Law Society of Scotland (16 February 2015), available at: www.journalonline.co.uk/Magazine/60-2/1018891.aspx, accessed 30 December 2017. See also www.supremecourt.uk/careers.html, accessed 30 December 2017.

55 See 'The judicial assistant scheme', available at www.justice.gov.uk/courts/rcj-rolls-building/court-of-appeal/civil-division/judicial-assistants, accessed 30 December 2017.

56 'High Court's new judicial assistant scheme' Courts and Tribunals Judiciary, 1 April 2019,
www.judiciary.uk/announcements/high-courts-new-judicial-assistant-scheme, accessed 6 August 2019.

57 Speech by P Freeman CBE, QC 'Competition decision making and judicial control – the role of the specialised tribunal' given on 7 June 2013 at The Centre for Competition Policy UEA Annual Conference, Norwich, available at http://competitionpolicy.ac.uk/documents/8158338/8254348/Peter+Freeman+speech.pdf/c1d4b4e9-fab4-463d-a026-baf7b70ef35c, accessed 30 December 2017.

58 The spelling of the position at the CAT is anglicised.

59 See advertisement for position 'Competition Appeal Tribunal / Competition Service, Person Specification: Référendaire', http://www.catribunal.org.uk/files/2.Referendaire_June2015_Person_Specification.pdf, accessed 30 December 2017.

60 See Judicial Researchers, Association of Judges of Ireland, available at https://aji.ie/supports/judicial-researchers/, accessed 8 April 2018.

61 G Coonan, 'The Role of Judicial Research Assistants in Supporting the Decision Making Role of the Irish Judiciary' (2006) 6 (1) Judicial Studies Institute Journal 188.

62 ibid.

63 A Leigh, 'Behind the Bench: Associates in the High Court of Australia' (2000) 25 (6) Alternative Law Journal 291.

64 See, 'Applying for an associateship with a Justice of the High Court of Australia', available at www.hcourt.gov.au/employment/applying-for-an-associateship-with-a-justice-of-the-high-court-of-australia, accessed 30 December 2017.

65 M Kirby, 'Judicial Associates', The Australian, Legal Affairs (March 2009), available at www.michaelkirby.com.au/images/stories/speeches/2000s/2009+/2346.Judicial_Associates_-_The_Australian_-_March_2009.pdf, accessed 30 December 2017.

66 K Young, 'Open Chambers: High Court Associates and Supreme Court Clerks Compared' (2007) 31 Melbourne University Law Review 665.

67 e.g., At the Supreme Court of New South Wales, '[t]ipstaves are employed as part of the personal chambers staff of a particular judge. . . . [They] conduct often complex legal research on behalf of judges [involving] a detailed analysis of case law and an examination of legal developments in areas where precedents may not be well defined.' By contrast, the 'associates', whose positions are renewable, provide 'broadly based executive support to enable the judge to meet obligations both within the court and to external stakeholders, including legal practitioners, litigants in person and members of the public.' See, Supreme Court of New South Wales, Careers, www.supremecourt.justice.nsw.gov.au/Pages/sco2_aboutus/sco2_careers.aspx#associate_roles, accessed 30 December 2017.

68 Supreme Court of Canada, Law Clerk Program. See, www.scc-csc.ca/empl/lc-aj-eng.aspx, accessed 30 December 2017.

69 For an insight into the New Zealand practice, see M Harris, 'The Role of a Judge's Clerk at the Supreme Court of New Zealand: A “Worm's-Eye View”', available at https://cdn.auckland.ac.nz/assets/facultyconferences/faculty-of-law/Supreme%20Court%20Conference/M%20Harris.pdf, accessed 7 April 2016, at p 1 ('[C]lerks generally play a junior role in New Zealand courts, [and] are employed for short periods of time'.).

70 Constitutional Court of South Africa, Foreign Law Clerks. See https://www.concourt.org.za/index.php/law-researchers/recruitment/foreign-law-clerk-programme, accessed 6 August 2019.

71 Owing to how clerkships are traditionally perceived in common law jurisdictions, the work undertaken by legal secretaries at the European Courts is not always well understood: a former référendaire at the CJEU, Marie Demetriou QC, has written that 'the fact that référendaires are directly involved in drafting judgments often comes as a surprise to members of the British judiciary'. M Demetriou, 'The Role of Référendaires at the European Court' (2007) 7 (1.1) EC Tax Journal 3. It does not help that the role of 'legal secretary' exists in the UK where it is understood as a very different position: a lawyer's administrative or secretarial assistant. See, e.g., the information provided by the National Careers Service at
https://nationalcareersservice.direct.gov.uk/advice/planning/jobprofiles/Pages/legalsecretary.aspx, accessed 6 April 2016 ('Legal secretaries provide a high level of administrative support for lawyers and legal executives. They help with the day-to-day tasks involved in running a legal services or law firm.') Similarly, in the US, the term 'legal secretary' connotes the performance of purely secretarial tasks in a law firm, as opposed to those undertaken by 'paralegals' or 'legal assistants'. For paralegals/administrative assistants, see ABA Model Guidelines for the Utilization of Paralegal Services, adopted by the Standing Committee of the American Bar Association in 2012. At best, many imagine that the position of a legal secretary is directly comparable to judicial assistants in the UK or law clerks in the US. Indeed, when seeking applications for a new 'Legal Secretary (Référendaire)', Judge Christopher Vajda, the British member of the Court of Justice, had to make explicit in the advertisement that the position 'is not equivalent to the post of a Judicial Assistant in the UK'. See the advertisement placed, inter alia, on the website of The Bar Association for Commerce, Finance & Industry at www.bacfi.org/files/LegalSecretaryECJ.pdf, accessed 30 December 2017.

72 See generally, P Mathijsen, 'Le début: La Cour CECA' in La Cour de justice des Communautés européennes 1952-2002: Bilan et perspectives (Bruylant, 2004).

73 See D G Valentine, The Court of Justice of the European Coal and Steel Community, Martinus Nijhoff (1955). See also A Cohen, '“Dix personnages majestueux en longue robe amarante.” La formation de la Cour de justice des Communautés européennes' (2010) 60 (2) Revue française de science politique 227, at 243 (referring to attachés as being the predecessors of référendaires). Interestingly, the term continues to be used for those working in the cabinet of the registrar who are titled 'Attaché to the Registrar' (see, http://europa.eu/whoiswho/public/index.cfm?fuseaction=idea.hierarchy&nodeID=340040&lang=en, accessed 19 March 2019).

74 The seven judges consisted of one from each of the original six Member States and one representing the coal and steel workers' associations. See, A Boerger-De Smedt, 'La Cour de Justice dans les négociations du traité de Paris instituant la CECA', (2008) 14 (2) Journal of European Integration History 20.

75 S J Kenney, 'Beyond Principals and Agents: Seeing Courts as Organizations by Comparing Référendaires at the European Court of Justice and Law Clerks at the U.S. Supreme Court', (2000) 33 (5) Comparative Political Studies 593, at 605.

76 Larousse Dictionnaire de français, at www.larousse.fr/dictionnaires/francais/référendaire/67443, accessed 30 December 2017.

77 L De Geyter, 'The role of the “Référendaire” within the Belgian Constitutional Court', in A Zegrean and M Costinescu (eds.) The Role of Assistant-Magistrates in the Jurisdiction of Constitutional Courts (Universul Juridic, Bucharest, 2016), p. 45.

78 See Article 59 of the Rules of Procedure of the Court of Justice and Article 87 of the Rules of Procedure of the General Court.

79 The référendaires working for advocates general draft the Advocate General's Opinion and provide help in assessing the importance of cases presented to the advocate general by the Judge-Rapporteur at an early stage of the procedure.

80 cf. the view expressed by Hubert Legal, former judge at the General Court, in H Legal, 'Editorial: Le contentieux communautaire de la concurrence entre contrôle restreint et pleine jurisdiction' (2005) 2 Concurrences 2, who claims legal secretaries at General Court wield considerable power during deliberations while describing them as 'judicially inexperienced . . . ayatollahs of free enterprise'.

81 M Bobek, 'The Court of Justice of the European Union' in A Arnull and D Chalmers (eds), The Oxford Handbook of European Union Law (Oxford University Press, 2014), p. 166, 168.

82 M Johansson, 'The Role and Importance of Legal Secretaries' (3 July 2007) Competition Law Insight, p 11; D Seytre, 'La proposition de réforme Skouris II est arrivée!' Le Jeudi (25 September 2014).

83 It may be noted that while the procedural texts of the ECJ are silent on référendaires, they speak of 'Assistant Rapporteurs'. According to Articles 13 of the Statute of the Court of Justice of the European Union, Assistant Rapporteurs may be appointed to 'participate in preparatory inquiries in cases pending before the Court and to cooperate with the Judge who acts as Rapporteur'. Similarly, Article 17 of the Rules of Procedure of the Court specifies that their function is to assist the President of the Court in interim proceedings and the judge-rapporteurs in their work. However, it is clear that these provisions do not refer to référendaires.

84 S Gervasoni, 'Des Referendaires et de la Magistrature Communitaire', in Melanges en l'Honneur de Jean-Pierre Puissochet 'L'Etat Souverain danse le Monde d'aujourd'hui'(Editions A Pedone, 2008), p. 114.

85 Regulation (EEC, Euratom, ECSC) No. 259/68 of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ, English Special Edition, 1968(I), p. 30), as amended by Regulation (EU, Euratom) No. 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union (OJ 2013, L 287, p. 15) (the 'Staff Regulations').

86 Décision du 17 février 2009 portant adoption de règles de bonne conduite des référendaires, available on the website of the Amicale des référendaires et des anciens référendaires, at www.amicuria.com, accessed 31 December 2017.

87 The latter category includes, in particular, lawyer-linguists or lawyers at the ECJ's Research and Documentation service, who are normally recruited by way of the Concours organised with the help of the European Personnel Selection Office (EPSO).

88 Judgment of 4 September 2008 in Case F-103/07, Radu Duta v. Court of Justice of the European Communities, paras. 25 and 26 (confirmed on appeal by order of the General Court of 29 July 2010 in Case T-475/08 P, Radu Duta v. Court of Justice of the European Communities, ECLI:EU:T:2010:322). As the judgment is only available in French, the citation is from the official summary of the decision in English. See also, regarding the hiring of a lecteur d'arrêt by the president of the Court of Justice, Judgment of the Court of First Instance of 17 October 2006 in Case T-406/04, André Bonnet v. Court of Justice of the European Communities, ECLI:EU:T:2006:322, para. 33.

89 Judgment of the Civil Service Tribunal of 4 September 2008 in Case F-103/07, Radu Duta v. Court of Justice of the European Communities, ECLI:EU:F:2008:105, para. 26; judgment of the Court of Justice of 11 July 2006, Commission of the European Communities v. Édith Cresson, C-432/04, ECLI:EU:C:2006:455, para. 130.

90 Article 6 of the Statute of the Court of Justice of the European Union.

91 Data collected from Whoiswho, the EU's official directory, accessible through the ECJ's website http://curia.europa.eu , accessed 30 Dec 2017. On the relevance of gender in the appointment of judges to the ECJ, see S J Kenney, 'Breaking the Silence: Gender Mainstreaming and the Composition of the European Court of Justice', (2002) 10 Feminist Legal Studies 257.

92 A list of the names of référendaires is publicly available on Whoiswho, the EU's official directory, available at http://curia.europa.eu.

93 In 1952, it was agreed that the original Court of Justice could decide for itself which language to use in its internal drafting and deliberations, as long as its judgments would be published in all official languages. Since then, the CJEU has used French as its working language. See, La traduction à la Commission: 1958-2010 (Études sur la traduction et le multilinguisme 2/2009, European Commission, Directorate-General for Translation), p 8–9, 13. It is open to question whether French would be chosen as the principal internal working language today. According to Eurostat's 2016 figures, some 94.1 per cent of all EU-28 students at upper secondary level were studying English as a foreign language in 2014, compared to only 23.0 per cent, studying French. 'Foreign language learning statistics', available at http://ec.europa.eu/eurostat/statistics-explained/index.php/Foreign_language_learning_statistics, accessed 30 December 2017.

94 A H Zhang, 'The Faceless Court' (206) 38 (1) University of Pennsylvania Journal of International Law 71, at 108.

95 Under the basic texts that govern the European Courts (i.e., the EU Treaties and the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice), the members of both courts are nominated for a renewable term of six years by their Member State. There is no limit to the number of times a member may have his or her mandate renewed and there is no compulsory retirement age. See also, on their nomination, Decision of the EFTA Court of 14 February 2017 in Case E-21/16, Nobile, unreported, and the Order of the President of 20 February 2017, [2017] EFTA Ct. Rep. 554, in the same proceedings (concerning the decision of appointment, which was subsequently annulled and replaced, of the Norwegian member for a term of less than six years). See further, Judgment of the General Court of 23 January 2018 in Case T-639/16 P, FV v. Council, ECLI:EU:T:2018:22 (finding composition of EU Civil Service Tribunal irregular), and the Decision of the Court of Justice of 18 March 2018 in Case C-141/18 RX, FV v. Council, ECLI:EU:C:2018:218 (declining to review the latter judgment).

96 S J Kenney, 'Beyond Principals and Agents: Seeing Courts as Organizations by Comparing Référendaires at the European Court of Justice and Law Clerks at the U.S. Supreme Court', (2000) 33 (5) Comparative Political Studies 593, at 605.

97 At the time of writing, three judges and three advocates general at the Court of Justice, 16 judges at the General Court, as well as the registrars of both Courts, had previously served as legal secretaries at the CJEU. As regards previous members, see also A Cohen, 'Sous la robe du juge. Le recrutement social de la Cour' in P Mbongo and A Vauchez, Dans la fabrique du droit européen: Scènes, acteurs et publics de la Cour de justice des Communautés européennes (Bruylant, 2009), p. 28.

98 C Baudenbacher, 'The EFTA Court: Structure and Tasks', in C Baudenbacher (ed) The Handbook of EEA Law (Springer International Publishing, 2016), p. 145.

99 For a detailed understanding of the EFTA Court, its role, functioning and relationship with the CJEU, see generally, C Baudenbacher (ed) The Handbook of EEA Law (Springer International Publishing, 2016), chapters 'The EFTA Court: Structure and Tasks' and 'The Relationship between the EFTA Court and the Court of Justice of the European Union' both by President Baudenbacher. See also M-J Clifton, 'The Other Side of the Street: the EFTA Court's Role in the EEA', (2014) 7–8 European Law Reporter 216.

100 C Baudenbacher, 'After Brexit, here's why Britain's natural home could end up as EFTA', Daily Telegraph (5 December 2017), available at www.telegraph.co.uk/news/2017/12/05/brexit-britains-natural-home-could-end-efta/, accessed 30 December 2017. As regards Switzerland, in particular, see also S Faki, 'EuGH, Efta-Gerichtshof oder Schiedsgericht? Neue Offenheit bei den “fremden Richtern”', Blick (27 November 2017), available at www.blick.ch/news/politik/eugh-efta-gerichtshof-oder-schiedsgericht-
neue-offenheit-bei-den-fremden-richtern-id7650160.html, accessed 30 December 2017.

101 See more generally, M-J Clifton, 'The Other Side of the Street: the EFTA Court's Role in the EEA', (2014) 7–8 European Law Reporter 216, at 217.

102 Assuming that there will be a hearing in the particular case, this document presents the reporting judge's summary of the facts of the case, the relevant legislation, and the parties' submissions.

103 See Article 40 Rules of Procedure of the EFTA Court.

104 See Article 41(2) Rules of Procedure of the EFTA Court.

105 With the exception of the Liechtenstein cabinet, which has historically been highly international in make-up, which is in part a reflection of the composition of the domestic judiciary. No Liechtensteiner has worked in the cabinet to date.

106 See Rules 45–47, Part X, EFTA Court Staff Regulations and Staff Rules.

107 By contrast, in civil law jurisdictions the legal secretaries would tend to work under the courts' general administration. See M Cohen, 'The Continuing Impact of French Legal Culture on the International Court of Justice', in A Roberts, P B Stephan, P H Verdier and M Versteeg, Comparative International Law (OUP, 2018), p. 202–203.

108 The EFTA Court had occasion to address the role of legal secretaries in Case E-1/06 EFTA Surveillance Authority v. Norway [2007] EFTA Ct. Rep. 8. In that case, a challenge was made against a legal secretary's involvement for having previously published an academic article on the subject three years before. The registrar wrote to the party that had raised the matter stating that, 'As legal secretaries are not decision-makers, the Court will only in special circumstances decide that a legal secretary must refrain from assisting a judge in a certain case.' Another legal secretary recused himself in the same case having worked on the specific case prior to starting at the EFTA Court.

109 M Johansson, 'The Role and Importance of Legal Secretaries' (3 July 2007) Competition Law Insight, p. 13.