The Challenge for EU Constitutional Law
Chapter 4: The EU’s Judicial Constitution after Enlargement
I. INTRODUCTION AND METHODOLOGICAL APPROACH This chapter considers the judicial constitution, focusing on its specification by the Court’s Grand Chamber since the EU’s Eastern Enlargement from 2004.1 The analysis starts from the results of its rulings, gauging how many of them support or inhibit rights and democracy as demanded by liberal constitutionalism and socially embedded constitutionalism respectively, proceeding to a content analysis and tracing any doctrinal (in)consistency that may expose a bias towards one or other form of constitutionalism and thus a positioning between social and economic integration. Case law is considered as a mirror of constitutional conflict. As processes of constitutionalisation and even ordinary legislation become more and more complex and long-winded, the resulting norms (e.g. in the EU Treaties) must remain sufficiently open to allow adaptation by interpretation.2 Such adaptation is needed increasingly due to rapidly changing global socio-economic realities and ever-shifting spheres of conflict creating new challenges for the law’s task, which is to provide normative order. Interpreting is the task of an arbiter, as distinct from the norm-creator – this is a task of the judiciary (among others). Within the European Union, it is up to the EU courts and national courts to specify the meaning of EU constitutional law. Such specifications can never be exclusively dictated by the norms themselves. Accordingly, judicial interpretation at any level always entails rule-making, partly by specification, partly by filling lacunae. This activity is of essentially political character. Judicial interpretation also has to follow the rules of legal discourse if...
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