Judicial Activism at the European Court of Justice
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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.
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Chapter 10: Judicial activism and the European Court of Justice: how should academics respond?

Anthony Arnull

Extract

Do academics have a role to play in responding to judicial activism by the European Court of Justice (‘the Court’ or ‘the ECJ’)? If so, what should that role be? Should they seek to defend the Court against accusations of judicial activism? Should they align themselves with the Court’s critics in an attempt to persuade the Court to change its ways? Or should they adopt a more reserved posture, criticising the Court on technical grounds where a decision appears to be legally unsound but at the same time recognising the special features of the EU legal order and the role attributed to the Court under the Treaties? To answer these questions, I propose to begin by considering the perception academics have of themselves and what we mean by judicial activism. I will then examine whether, and if so to what extent, the ECJ may be considered an activist court. I will conclude with some tentative suggestions about the role academics might play in responding to the Court’s case law.

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