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 12: Strategies developed by – and between – national governments to interact with the ECJ

Mielle Bulterman and Corinna Wissels

Subjects: law - academic, european law


In its decision in the joined cases Gözütok and Brügge, the ECJ was called upon to clarify the ne bis in idem principle as laid down in Article 54 of the Convention implementing the Schengen Agreement. This decision may well be labeled as the ‘Cassis de Dijon’ in European criminal law. The ECJ was asked to clarify whether the ne bis in idem principles apply when criminal proceedings have been finally decided within one Member State as the result of a settlement with the prosecuting authority (transaction). The German and French government submitted that Article 54 of the Convention should be interpreted literally so as not to include settlement procedures. The ECJ decided otherwise, and argued that Member States should have mutual trust in their criminal justice systems and recognize the criminal law in force in other Member States even when the outcome would be different if their own national law were applied. One may of course consider this judgment as activist. The Dutch government, however, would never criticize the ECJ for having been activist in this particular case. On the contrary, the final outcome was in line with the position adopted by the Dutch government (as well as the Italian government and the Commission) before the ECJ.

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