The Changing Constitutional Role of the European Court of Justice

Abstract

The process through which the founding Treaties of the European Communities came to function and be regarded as a constitution and the role of the Court of Justice in that process are well known. According to a widespread view, the Court would have been the main or even the only actor in the constitutionalization of the Treaties, transforming them into constitutional entities by virtue of some judgments of the 60s and 70s. For many, in those judgments the Court would have been excessively prointegrationist, too audacious, almost “running wild”. At some point, a number of constitutional courts, in particular the German Constitutional Court with its Maastricht decision of 1993, would have voiced their concerns, tracing potential limits to judicially driven integration. As a result, the Court of the 90s would have become wiser, more self-restrained, at times even minimalistic – more like a court and less like an omnipotent legislator or “pouvoir constituent.” With the calling of the European Convention and the drafting of the Treaty establishing a Constitution for Europe, the Court would have been more than ever on a second plane, as if constitutional matters had finally returned to the political actors to which they belong.

Cosmopolitan law and time: Toward a theory of constitutionalism and solidarity in transition

“…96 We might scrutinize the effect of its compositional and organisational defi ciencies in producing normatively 'thin' judgments. 97 Indeed, we might propose reforming the production, attribution, and structure of European high courts' legal opinions so that the European public can more effectively read them as legal texts. We might argue for the inclusion of dissenting opinions, for example, or see merit in further formalizing the role of judicial precedent and, even, an equivalent of stare decisis .…”