Article title Judicial Activism Phenomenon in the Practice of the Court of Justice of the European Union
Authors
Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 2/2018
Сторінки [217-232]
DOI https://doi.org/10.33498/louu-2018-02-217
Annotation

For Ukrainian lawyers, the issue of judicial activism (broad interpretation) is rather abstract and distant from reality. However, this phenomenon is well known to European lawyers, especially in the context of operation of such a supranational judicial institution as the Court of Justice of the European Union (hereinafter – ECJ). Since the European Union (EU) has broad competence, the jurisdiction of its judiciary covers almost all areas of social relations, thus entailing the impact of its decisions on integration legal order. The ECJ has a pro-active attitude towards the development of integration legal order and its enhancement, and this gives rise to the phenomenon of judicial activism in its practice. The purpose of this article is to elucidate the judicial activism trends of the EU Court of Justice and its impact on the EU institutional dynamics which can be evolutionary traced. It is noted that the position of the ECJ has evolved from a judicial body making technical interpretation of incorporation agreements to the body which has an impact on the policies of Member States. This position of the ECJ quite often objectively contradicted the political and economic interests of Member States and evoked political resistance amidst European communities, but finally, Member States recognized it. The development of the judicial activism phenomenon in the EU is intricately linked to the years of crisis of the European integration in 1960-70s. It is that crisis that drove the ECJ to guarantee more actively the European integration objectives and the competences of European communities. Developing the concepts of the rule of law and the direct effect of EU law, the ECJ contributed to the overcoming of that crisis, although the European integration process, in a sense, represents the confrontation of national and supranational structures. The ECJ acted on the basis of an assumption that Member States should follow its practice with regard to the matters which are fundamental for EU legal order even in the areas referred to the exclusive competence of States. Member States should implement its competence in accordance with EU law, and this is why significant changes in the policies of the States occur. The activism of the EU Court of Justice has become a cornerstone instrument of the EU institutional dynamics and has established an inextricable link between legal and political integration in the EU, and its decisions are very often used as the basis not only for acts of primary or secondary EU law, but as a certain framework for the establishment of national policies as well.

 

References

List of legal documents

 

Legislation

1. ‘Protocol concerning Article 119 of the Treaty establishing the European Community’

(1992) 35 Official Journal of the European Communities <https://eur-lex.europa.eu/

legal-content/EN/TXT/PDF/?uri=OJ:C:1992:191:FULL&from=EN> accessed 1 February

2018 (in English).

2. Treaty of Amsterdam amending the Treaty on EU, the Treaties Establishing the European Communities and Certain Related Acts: signed in Amsterdam on 2 October 1997 <http://www.europarl.europa.eu/topics/treaty/pdf/amst-en.pdf> accessed 1 February 2018 (in English). Cases

3. Case 26-62 Van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 00001 (in English).

4. Case 6/64 Flamino Costa v E N E L [1964] ECR 585 (in English).

5. Case 120/78 Rewe Zentrale AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649 (in English).

6. Case 178/84 Commission of the European Communities v Federal Republic of Germany [1987] ECR 01227 (in English).

7. Case C-262/88 Douglas Harvey Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-01889 (in English).

8. Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others [1991] ECR I-04685 (in English).

9. Case 285/98, Tanja Kreil v Bundesrepublik Deutschland [2000] ECR I-69 (in English).

10. Case C-262/88 Douglas Harvey Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889 (in English).

11. Case C-110/91 Moroni v Collo GmbH [1993] ECR I-06591 (in English).

12. Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet and Others [2007] ECR I-11767 (in English).

13. Case 354/04 P Gestoras Pro Amnistía and Others v Council [2007] ECR I-01579 (in English).

 

Bibliography

Authored books

14. Alter Karen, The European Court’s Political Power: Selected Essays (Oxford University Press 2009) (in English).

15. Neill Patrick, The European Court of Justice: A Case Study in Judicial Activism (European Policy Forum, 1995) (in English).

16. Rasmussen Hjalte, On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Martinus Nijhoff Publishers 1986) (in English).

17. Komarova Tetiana, Yurysdyktsiia Sudu Yevropeiskoho Soiuzu: monohrafiia [Jurisdiction of the Court of Justice of the European Union: Monograph] (Pravo 2010) (in Ukrainian).

 

Edited books

18. Tetjana Komarova, ‘Razvitie Sudom Evropejskogo Sojuza koncepcii suvereniteta gosudarstv – chlenov ES’ [‘Development by the Court of Justice of the European Union of the Concept of the EU Member States Sovereignty’] v Skovikov A i Jakovjuk I (red), Pravovye problemy opredelenija i realizacii gosudarstvennogo suvereniteta na sovremennom jetape: monografija [Legal Issues of Defining and Implementing State Sovereignty at the Modern Stage: Monograph] (OOO “NIPKC Voshod-A” 2010) (in Russian).

 

Journal articles

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21. Blauberger Michael and Schmidt Susanne K, ‘Free movement, the welfare state, and the European Union’s over-constitutionalization: Administrating contradictions’ (2017) 95 Public Administration 437 (in English).

22. Burley Anne-Marie and Mattli Walter, ‘Europe Before the Court: A Political Theory of Legal Integration’ (1993) 47 (1) International Organisation 41 (in English).

23. Cappelletti Mauro, ‘Is the European Court of Justice Running wild?’ (1987) 12 European Law Review 3 (in English).

24. Hartley Trevor C, ‘International Agreements and the Community Legal System: Some Recent Development’ (1983) 8 European Law Review 383 (in English).

25. – –, ‘The European Court, Judicial Objectivity and the Constitution of the European Union’ (1996) 112 Law Quarterly Review 95 (in English).

26. Koen Lenaerts, ‘The Rule of Law and the Coherence of the Judicial System of the European Union’ (2007) 44 Common Market Law Review 1625 (in English).

27. Mancini Federico and Keeling David T, ‘Language, Culture and Politics in the Life of the European Court of Justice’ (1995) 1 (3) Columbia Journal of European Law 397 (in English).

28. Paso Mirjami, ‘The Court of Justice of the European Union as a Rhetorical Actor’ (2012) 19 (1) Maastricht Journal of European and Comparative Law 12 (in English).

29. Sweet Alec Stone, ‘The European Court of Justice and the Judicialisation of EU Governance’ (2010) 5 (2) Living Reviews in European Governance 27 (in English).

30. Weiler Joseph, ‘The Transformation of Europe’ (1991) 100 (8) Yale Law Journal 2403 (in English).

31. Komarova Tetiana, ‘Rishennia Sudu Yevropeiskykh Spivtovarystv: pytannia sudovoho aktyvizmu’ [‘Decision of the Court of Justice of the European Communities: Judicial Activism Issues’] (2008) 94 Problemy zakonnosti 232 (in Ukrainian).