In recent years, the European Court of Justice (ECJ) has sometimes been accused of judicial activism, especially in Great Britain. This accusation is far from new. In 1993, Margaret Thatcher declared to the House of Lords that ‘some things at the Court are very much to our distaste’.1 Before that, Michel Debré had even evoked the Court’s ‘pathological megalomania’.2 From a technical point of view, Rasmussen published a seminal comment in the 1980s,3 and many others followed. There is now a huge volume of literature on the subject.
It is not surprising that this criticism re-emerges more intensely in a...
Many speeches, articles, and books have addressed many forms of alleged judicial activism in various systems.5 In that context, it is interesting first to take a comparative perspective. Two are especially enlightening: the constitutional jurisprudence of the United States and international law jurisprudence.
Since its foundation, the US Supreme Court has been repeatedly accused of judicial activism. Let’s remember, for example, the lengthy controversies provoked by Franklin Roosevelt’s New Deal programme, during which the Supreme Court blocked many legislative components by reference to a restrictive reading of the interstate commerce clause. Many Democrats, Roosevelt included, believed that it had abused...
Where does this lead us in the debate about European judicial activism? Some critical observers tend to invoke famous judgments from the first decades of the EU: Van Gend & Loos, Costa/Enel, AETR, Cassis de Dijon, etc. ... But were these judgments all that revolutionary?9
Let’s take Van Gend & Loos and Costa/Enel. To make a correct assessment, we need to put ourselves in the context of the period, ‘the mental setting’ that was such a fantastic concept developed by James Joll to consider the beginning of the First World War.10 At the time, there were seven judges, two advocates general, and...
The judgments of the ECJ have become more careful and limited in scope and substance in recent decades. The era of sweeping statements and judgments of principle is over, as a few examples demonstrate.
In cases of asset freezing linked to the fight against terrorism, the ECJ has tried to define a subtle line between the need to protect fundamental rights and to guarantee security. The first judgments of the General Court were seen as giving quite a pronounced priority to security. The Court of Justice seems to have established a more balanced approach. There remain, however, some obscure corners,...
Quite aside from activism, the reading of various national judgments and academic comments seems to reflect a growing problem linked to the weak explanations of a substantial number of ECJ judgments. Some confusion exists, however, between the two problems. Judgments that provide limited explanations can, as a matter of fact, generate a feeling of activism, because the judicial decisions’ basis and impact remain uncertain. This, rather than activism, may explain the present malaise surrounding some ECJ judgments.
A good illustration of limited explanations was long ago provided by the muchcommented-upon admissibility debate concerning individual actions against general regulations. In 2002...
The EU is already encountering a great number of problems. A decrease in the technical legitimacy of the judgments delivered by the ECJ does not help in a general climate of contestation.92 Some things should thus be done to address this – and they can be done.
Firstly, we need better use of the instruments available to the ECJ. Here, greater emphasis ought to be placed on the Advocates General. Quite often, judgments can be divided into two categories. Some of them take into consideration the opinion of the Advocate General. It is not a call to the ECJ to...
