Judicial activism at the Court of JusticeCauses, Responses and Solutions
Maastricht, 10-11th October 2011
A conference organised by M. Dawson, B. De Witte, E. Muir with the support of the Ius Commune Research School, European Union Democracy Observatory at the European University Institute and the Universiteitsfonds Limburg.
The immediate context for the conference is the rise, in the last years (see e.g. Gerken & Herzog 2008), of concerns among national authorities and judiciaries, and within European civil society, about the judicial activism of the European Court of Justice. While an intense debate has raged within EU legal academia about the validity of this claim, this conference aims to address its causes, responses and solutions. What legal and political factors feed the accusation of judicial activism, how do political and civil society actors respond to it, and how could possible solutions to perceived problems of judicial activism be envisaged?
Problems of judicial activism can emerge from a number of sources. One of them is when the Court is called upon to make judgments in socially sensitive areas; in which case any decision is a political choice likely to invoke controversy (see eg. discrimination cases related to age). Another is where the European Courts must decide cases of particular complexity, in which they lack the necessary knowledge or expertise to make well informed judgments (see eg. risk regulation). A third is instances where the impact of Court rulings stray too far into the prerogatives of national or other European authorities. Finally, while many may criticize the courts for too being activist in their rulings, the problem might actually be the opposite: the unwillingness of the European Courts to take a stand when called upon to do so by individuals.
The Court’s perceived activism, and its associated legitimacy dilemma, has clear implications for policy-makers and stakeholders, both national and European. Firstly, the perception that the ECJ is unduly activist has severely undermined the political legitimacy of the EU as a whole, undermining public confidence in integration (see for example the particular impact of ECJ rulings on employment in Nordic countries). Secondly, legitimacy problems can lead to compliance deficits. The risk arises that a decline in the authority of the European Courts will be matched by an increased unwillingness of either national courts or national governments to apply the Court’s rulings. The controversy in Denmark over the consequences of the ECJ’s Metock ruling for the autonomy of the Danish immigration system is an important example. Finally, the effects of ECJ decisions can severely constrain the political freedom of civil society organizations and other private actors, who feel ‘cut-out’ of the process of European law¬making in politically sensitive areas (as illustrated by the ETUC’s ‘call to arms’ over the judgments of the ECJ in Viking and Laval (ETUC 2008)).
The conference aims to identify sources and analyse possible consequences of the Court’s perceived activism, identifying possible practical solutions. We will address these issues from a constitutional perspective. The conference programme will be structured through three stages of inquiry, bringing together academics, judges, civil society representatives and practitioners interested in these problems.