Constitutionalism of the European Union: Judicial Legislation and Political Decision-Making by the European Court of Justice

The focus of this article shall be the case law of the European Court of Justice. Despite recent proposals as well as other actions of the Member States to reform the Community Treaties, the expansion of judicial review by the European Court of Justice remains the driving force behind the development of constitutionalism of the European Union. In fact, the European Court of Justice and its case law play the most dominant and consistent role in the integration process. In doing so, the case law of the Court of Justice in part reflects the judicial activism comparable to early U.S. Supreme Court assertions of federal power. With the doctrines of direct applicability, direct effect, supremacy of Community Law, fundamental rights, and implied powers, the Court of Justice indicates a bias toward deeper European integration and centralized governance. To be sure, the establishment and subsequent elaboration of these doctrines provide a primary example for the role of the European Court of Justice in the European Union. The precedents of the Court, which in many cases were initiated by the Member States themselves or a direct result of their failure to comply with obligations under the Treaties, prove a consistent reliance on the Court to regulate political conflict throughout the European integration process. But aside from its role in European integration, it should also be noted that the activism of the European Court of Justice as an international court may provide general insight into the greater picture of international jurisprudence. That is, the possible influence of international jurisdiction on the sovereignty of nation-states bound by international agreements and international organizations