Edited by Mark Dawson, Bruno De Witte and Elise Muir
Chapter 10: Judicial activism and the European Court of Justice: how should academics respond?
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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