Please use this identifier to cite or link to this item: http://hdl.handle.net/1946/6048
Revisiting Judicial Activism. Pros and Cons of Judicial Lawmaking in the EU Legal Order
As the title implies, this thesis examines the judicial activism of the Court of Justice, and its part in shaping the European rule of law. It is specifically focused on certain key principles created through the Court’s jurisprudence during the Union’s foundational period (1958-1975), such as the doctrines of direct effect and supremacy, and how these doctrines shaped the constitutional order of the Union with the help of the preliminary ruling procedure. This thesis also examines the Court’s methods of interpretation, to see if its teleological interpretation can be justified based on the goals of the Treaty and the required effectiveness of EU law.
This thesis examines and weighs the pros and cons of the judicial activism displayed by the ECJ, in order to see whether the need for effective application and enforcement of European Union law outweighs the inherent problems resulting from judicial lawmaking within the sphere of international law. It is clear that the Court of Justice is not an activist court in all aspects and most cases tried before the Court can be labelled reactive, conservative, passive, or even examples of judicial self-restraint. It does, however, not change the fact that the ECJ has made activist decisions in several important constitutional cases, which have had a significant effect on the EU legal order. Many renowned writers have covered the subject of judicial lawmaking during different stages of the European integration process, and some of their main arguments for and against judicial activism are examined in order to understand whether the Court’s teleological approach to Treaty interpretation can be justified.