The EU's top court is not afraid to shape the law
25 November 2024
The Court of Justice of the EU (CJEU) is not an uncontroversial institution. Its job is to ensure that EU laws are applied and interpreted equally across the entire Union, and its rulings are binding on all member states. The Court has no prerogative, however, to create or change EU law – yet it has come under fire by member states and academics on many occasions for doing just that. In September, the Court crossed this line after hearing a case about fundamental rights breaches by the EU's Mission in Kosovo.
Technically, the case fell under a policy area generally excluded from the Court's jurisdiction: the EU's Common Foreign and Security Policy. By allowing the case to be heard, the Court has arguably increased the EU's legal accountability in a domain often immune from judicial oversight.
Yet most EU member states aren't exactly thrilled when bold rulings stretch the limits of the Court's authority, which are meant to be fixed by the EU Treaties. The Court's expansion of its competence is seen as threatening the certainty and democratic legitimacy of the EU legal system. For its part, the Court argues that the unique EU legal order and its mandate of ensuring the full effectiveness of EU law require some of its bolder rulings.
 | Toyah Höher The CJEU shapes EU law – and, thereby, how the EU functions – more than most Europeans realise. The September hearing is emblematic of a wider debate surrounding the Court's "judicial activism". Member states decry activist rulings as the Court overstepping its authority and altering EU law without formal democratic legitimacy. However, it was only through courageous CJEU judgments that several essential aspects of EU law came to be. For example, in its 1963 ruling in Van Gend en Loos, the Court introduced citizens' ability to evoke protections under EU law before their national courts, a cornerstone of protecting fundamental rights. The Court has long been considered the EU's "driver of integration" in the face of crises threatening the European project. While activist rulings can ultimately benefit both the EU and its citizens, the Court must carefully walk the line between asserting its authority over member states and maintaining their respect. |
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