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 3: The least dangerous branch of European governance? The European Court of Justice under the checks and balances doctrine

Marcus Höreth

Subjects: law - academic, european law


The role of constitutional courts in western democracies as ‘stabilizers’ of their respective political systems cannot be underestimated. As constitutional provisions are often vague and contradictory, courts are frequently in a position to address and redress the problem of ‘incomplete contracting’. But it is first and foremost their role as (third-party) ‘dispute resolvers’ in constitutionally salient conflicts that has made them indispensable in the political systems of modern democracies. Undoubtedly, the courts’ manifold gap-filling activities and their role in ‘third party’ dispute-resolution have led to a significant ‘judicialization of politics’ – a process that expands judicial power in general, but especially the power of supreme and constitutional courts. The influence of these courts can therefore be explained by the functions they carry out; courts have surely extended their powers further than their founders originally intended, but they are still doing what the political systems in which they are operating have asked them to do.

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