Judicial Activism at the European Court of Justice

Judicial Activism at the European Court of Justice

Edited by Mark Dawson, Bruno De Witte and Elise Muir

Detailed chapters from academics, practitioners and stakeholders bring diverse perspectives on a range of factors – from access rules to institutional design and to substantive functions – influencing the European Court’s political role. Each of the contributing authors invites the reader to approach the debate on the role of the Court in terms of a constantly evolving set of interactions between the EU judiciary, the European and national political spheres, as well as a multitude of other actors vested in competing legitimacy claims. The book questions the political role of the Court as much as it stresses the opportunities – and corresponding responsibilities – that the Court’s case law offers to independent observers, political institutions and civil society organisations.

Chapter 2: The political face of judicial activism: Europe’s law-politics imbalance

Mark Dawson

Subjects: law - academic, european law

Extract

The analysis of whether there is something like ‘judicial activism’ in the EU or not rests on particular assumptions and starting positions. There is an individual or liberal position which has seen the strong role of the Courts in forwarding EU integration as politically empowering. If one reads the seminal judgments of the ECJ in Van Gend & Loos and Costa through the lenses of people like Frederico Mancini, the effect of the ECJ’s jurisprudence has been ‘to take Community law out of the hands of politicians and bureaucrats and give it to the people’. By allowing individuals to enforce rights under EU law directly, the EU Courts are not engaged in ‘activism’; rather, they are doing precisely the same as judges the world over: giving individuals access to the law. In doing so, politics is not reduced, instead new political pathways are opened up. Individuals are permitted to use rights under EU law to politically contest and de-stabilize national policies that exclude and under-count outsiders.

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