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 5: The Court of Justice: a fundamental rights institution among others

Elise Muir


The timing of the conference at which the contents of this chapter was presented coincided with an extraordinary meeting of the Council of Europe’s Steering Committee for Human Rights (CDDH) on the shape of the novel system for the protection of fundamental rights in Europe. The CDDH examined the draft agreement for the accession of the European Union (EU) to the European Convention on Human Rights (ECHR), prepared in informal meetings of some of its members with the European Commission. Among the key questions at the core of this proposal lies the future position of the Court of Justice of the European Union (CJEU) in the system hereby designed. The role of the Court of Justice for the protection of fundamental rights in the EU legal order is not a novel topic. It has been much discussed, and for many years. If one defines judicial activism as judicial decisions going beyond the legal framework created by ‘political institutions’, the Court’ traditional case law on fundamental rights is a prime example of judicial activism. It is indeed largely accepted that the Court asserted the constitutional importance of fundamental rights in the EU legal order despite the original will of the Treaty makers. The Court thereby shaped its institutional profile in two ways. It confirmed its position as a guardian of the ‘constitutionality’ of EU acts thereby enhancing its authority over other EU institutions.

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