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Constitutional Dialogue between Courts and Legislatures in the European Union: Prospects and Limits
(2013)
The concept of 'constitutional dialogue' has become a focal point of US and Canadian public law scholarship. This concept sees judicial review not as a check on majority preferences but instead as part of a deliberation between the legislative and judicial branches over how constitutional commitments and general political objectives can be integrated. This article will explore the prospects and limits of developing the dialogue concept in the context of the present-day European Union (EU). The article will present a two-part argument: While the EU's political and legal diversity make the idea of a 'shared responsibility' for constitutional interpretation between judges and policy-makers normatively attractive, the existing institutional structure of the Union limits the incentives necessary for legal and political actors to constitutionally engage.
This article analyses how the European Union's response to the euro-crisis has altered the constitutional balance upon which its stability is based. It argues that the stability and legitimacy of any political system requires the structural incorporation of individual and political self-determination. In the context of the EU, this requirement is met through the idea of constitutional balance, with ‘substantive’, ‘institutional’ and ‘spatial’ dimensions. Analysing reforms to EU law and institutional structure in the wake of the crisis – such as the establishment of the ESM, the growing influence of the European Council and the creation of a stand-alone Fiscal Compact – it is argued that recent reforms are likely to have a lasting impact on the ability of the EU to mediate conflicting interests in all three areas. By undermining its constitutional balance, the response to the crisis is likely to dampen the long-term stability and legitimacy of the EU project.
The failure of individual and institutional remedies to ensure the effective enforcement of European Union (EU) law has increasingly focused attention on collective routes to ensuring adherance to EU policies and rights. How comprehensive, however, should collective remedies under EU law be? This introductory article - as well as the other articles of this volume - explores the feasibility of a horizontal approach to the collective enforcement of EU law. While the hope for such an approach has been bolstered by the engagement of the EU institutions, the Commission's most recent 2013 Recommendation fails to significantly advance the development of collective remedies at EU level. The article will conclude by exploring some further, non-legislative, alternatives to furthering the collective enforcement of EU law.
This book delves into the rationale, components of, and responses to accusations of judicial activism at the European Court of Justice. Detailed chapters from academics, practitioners and stakeholders bring diverse perspectives on a range of factors – from access rules to institutional design and to substantive functions – influencing the European Court’s political role. Each of the contributing authors invites the reader to approach the debate on the role of the Court in terms of a constantly evolving set of interactions between the EU judiciary, the European and national political spheres, as well as a multitude of other actors vested in competing legitimacy claims. The book questions the political role of the Court as much as it stresses the opportunities – and corresponding responsibilities – that the Court’s case law offers to independent observers, political institutions and civil society organisations.
This book delves into the rationale, components of, and responses to accusations of judicial activism at the European Court of Justice.
Detailed chapters from academics, practitioners and stakeholders bring diverse perspectives on a range of factors – from access rules to institutional design and to substantive functions – influencing the European Court’s political role. Each of the contributing authors invites the reader to approach the debate on the role of the Court in terms of a constantly evolving set of interactions between the EU judiciary, the European and national political spheres, as well as a multitude of other actors vested in competing legitimacy claims. The book questions the political role of the Court as much as it stresses the opportunities – and corresponding responsibilities – that the Court’s case law offers to independent observers, political institutions and civil society organisations.
Judicial Activism at the European Court of Justice will appeal to researchers and graduate students as well as to EU and national officials.