Edited by Mark Dawson, Bruno De Witte and Elise Muir
Chapter 4: Maybe not activist enough? On the Court’s alleged neoliberal bias in its recent labor cases
The reproach of ‘judicial activism’ holds that judges follow an ideological agenda instead of ruling what the law, or society at large, would demand. It essentially means that judges rule in bad faith. For the past maybe 10 or 12 years there has been considerable criticism from the left that the European integration process may have a neoliberal bias. The movement against the initial proposal for the Services Directive, for example, has been an important point of crystallization for this argument. As an important European actor, the ECJ has also been an addressee of this critique, and since the Laval/Viking/Rüffert/Luxemburg decisions it has become particularly pronounced. Differing from that of the US, the activism reproach in the EU has never seriously been aimed at individual judges, perhaps also for the reason that without dissenting opinions their individual positions are difficult to establish. Instead, the bias has been seen as a structural one, caused by institutional-legal imbalances. This is the thesis of Fritz Scharpf, who argues that there is an asymmetry between negative integration and positive integration, causing a structural neoliberal bias.
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