ABSTRACT

Whereas the role of judicial governance is clearly less significant than political governance in the Member States, this is not necessarily so in the European context where judicial activism has reached a novel, historically unknown, dimension.4 Here, the role of adjudication has always been much more important than in the Member States, as the degree of political consensus is much more limited. Thus, issues which could be decided politically have had – and often still have – to be solved legally in the European context.5 In filling this ‘decision-making gap’, the European Court of Justice (ECJ) has famously implemented a strongly European agenda and become the motor of the integration process, even in years of political stagnation, by gradually developing the European treaties into a federal, or as many prefer to say today, multi-level constitution.6 As impressively reconstructed by Joseph Weiler and others,7 judicial

constitution-building has extended to the structural constitution (i.e. the relationship of European and national law, including the famous doctrines of direct effect, supremacy and state liability), the substantive constitution (mainly composed of the free trade provisions, converted into the basic market freedoms by the Court, competition law, and the protection of human rights invented by the Court), and the institutional constitution (setting forth the competencies and the rules of interaction of the various European institutions). On the whole, despite the occasional resistance of national high or constitutional courts in the fields of competences and human rights, these instances of judicial governance have met with acceptance by the Member States and the legal community.8 This is probably so because they are primarily related to the initial European project of market integration through the abolition of national restrictions and the establishment of a system of undistorted competition – on which there has always been a firm consensus, and which has led to economic benefits for most of the Member States. In the case of human rights protection, this only replicated a more or less common standard which reflected the common historical and cultural heritage and achievements such as the jurisprudence of the European Court of Human Rights (ECHR), and thus did not meet with strong criticism.