Article,
Activism relocated. The self-restraint of the European Court of Justice in its national context
Journal of European Public Policy, 19 (1): 76--91 (January 2012)
DOI: 10.1080/13501763.2012.632146
Abstract
Most cases involving EU law are decided in national courtrooms without a preliminary reference. The influence of the Court on these cases is often overstated by focusing on headline principles, such as mutual recognition and state liability. However, application of these principles in specific cases is often mediated by open norms such as proportionality, which allow much national court discretion. Whether national judges apply these open norms in a pro-integration way determines how far the broader principles directly impact on the national legal system, and on national regulators: these latter will condition their behaviour according to their expectations of the national judiciary, since these are the judges to which they are directly subject. The Court's role here is important, but limited. It enables and encourages pro-integration national judicial choices, but its case law does not compel them. Claims of activism need to be partly relocated from Luxembourg to national courts.
Tags
- activism,
- court
- courts,
- discretion,
- judicial
- justice,
- national
- of
- preliminary
- proportionality
- reference,
