The Constitutional Court of a More Mature Legal Order: Constitutional Review by the Court of Justice of the European Union
This thesis examines the changing role of the Court of Justice of the European Union (CJEU) from the perspective of its task of conducting constitutional review of EU legislation. It addresses a gap in the existing literature by providing a systematic analysis of how the methodology and intensity of constitutional review has changed over time. By focusing upon federalism and fundamental rights cases, it argues that a series of significant shifts may be detected in the jurisprudence of the Court since the coming into force of the Lisbon Treaty. In marked contrast with earlier periods in its history, the Court now subjects EU legislation to high-intensity review in cases of serious interference with the EU’s core constitutional principles. The Court has also adopted an increasingly “process-oriented” approach to constitutional review in recent years. This involves heightened scrutiny of the legislative process and evidence base upon which contested EU legislation was enacted. The result has been a gradual infiltration of procedural review into constitutional adjudication. These developments in the methodology and intensity of constitutional review form the basis for evaluating the changing role of the CJEU over time. It is contended that the case law reveals much about the contemporary, post-Lisbon role of the Court and, crucially, how this differs from previous periods in the history of European integration. Whereas the Court has long been criticised for failing to subject EU legislation to meaningful judicial scrutiny, there is growing evidence that the Court now takes its responsibility for constitutional review more seriously. Furthermore, recent judgments demonstrate the Court to be an institutional actor that is responsive to the wider legal and political context in which it now operates. These developments give rise to a reconsideration of exiting accounts which depict the CJEU as an “activist” or unwaveringly “pro-integrationist” institution. When viewed from the largely unexplored perspective of the evolution of constitutional review, it is concluded that the Court now engages in a finely calibrated, variable intensity approach to such review. In so doing, the Court has finally assumed the role of a veritable Constitutional Court whose primary role is one of upholding the checks and balances within a more mature EU legal order.
CJEU, Constitutional Review, EU Law, European Union, Court of Justice
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