MASTER’S THESIS

LLM Thesis International and European Law / European Law and Global Risk Track

Department of Public Law and Governance (PLG)

Tilburg Law School

JUDICIAL ACTIVISM: A TOOL TO ENSURE THE EFFECTIVENESS OF EU

LAW OR AN IMPROPER BEHAVIOR OF THE COURT OF JUSTICE OF THE
EUROPEAN UNION?

Tomás António da Cunha Fernandes: Student number: 2086829

Supervisor: dr. Maria Haag: Word counter: 13663

JANUARY 2023 – 2022/2023

Table of Contents
List of abbreviations: .....................................................................................................3

CHAPTER 1: Introduction ............................................................................................4

1. Background ............................................................................................................4

2. Research Question ................................................................................................6

3. Methodology..........................................................................................................7

4. Thesis Structure ....................................................................................................8

CHAPTER 2: The Origin of the Accusations of Judicial Activism in the CJEU ......9

1. Introduction ...........................................................................................................9

2. Montesquieu’s fault. ............................................................................................10

3. The Court of Justice: a dispute settler? . ..............................................................13

4. How does the CJEU interpret EU law .................................................................15

5. Is judicial interpretation a form of activism?.......................................................17

6. The limits of judicial interpretation .....................................................................22

7. Conclusion ...........................................................................................................23

CHAPTER 3: A journey between Europe and the US in a quest to define judicial

activism in the context of the CJEU .............................................................................27

1. Introduction .........................................................................................................27

2. Judicial Activism: An empty and plastic term.....................................................27

3. Judicial Activism in Europe: An “I know when I see it” approach .....................29
4. Judicial activism in the USA: a useful comparison? ..........................................31

5. Conclusion ...........................................................................................................35

CHAPTER 4: Judicial Dynamism to the rescue of the Rule of Law in the EU .......37

1. Introduction .........................................................................................................37

2. The Rule of Law Backsliding – A brief rewind ................................................38

3. The Background to the Preliminary Ruling: An austerity case? ........................39

4. The Ruling: The Portuguese Judges Case ...........................................................40

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 5. An activist interpretation of Article 19 TEU? ....................................................42
6. Response to this criticism: a creative but valid interpretation of Article 19 TEU
.............................................................................................................................43
7. The Consequences of the Portuguese Judges’ Ruling ........................................45
8. Conclusion ..........................................................................................................47

CHAPTER 5: Conclusion .............................................................................................48

1. Final Remarks .....................................................................................................48

BIBLIOGRAPHY .........................................................................................................50

1. Bibliography .......................................................................................................50

2
 List of abbreviations:

EU European Union
CJEU Court of Justice of the European Union
TEU Treaty on European Union
TFEU Treaty on the Functioning of the European
AG Advocate General
CFREU Charter of Fundamental Rights of the European Union
ASJP Associação Sindical de Juízes Portugueses
USA United States of America
Bverfg German Constitutional Court

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 CHAPTER 1

INTRODUCTION

1. Background

EU Law has been gradually constructed in a joint effort between the different European
institutions. In this context, the CJEU has been vital in constructing and deepening the
European project by developing new case law for more than 60 years.

Through its jurisprudence, the Court of Justice has over the years ensured the unity and
coherence of the EU through the application of what Vauchez called the "magic triangle"
of EU law1: direct effect, the supremacy of EU law, and the preliminary ruling system
outlined in Article 267 TFEU2. This process was described by Weiler as "integration-
through law"3, while Vauchez termed this phenomenon as “Europeanization-through-
case-law”.4

In this regard, the Court of Justice has played a major role in the development of the
European Union since its landmark decisions Van Gend en Loos and Costa v Enel in the
1960s5, by creating the principles of Direct Effect and primacy of EU law. 6 Sixty years
after these rulings, the role of the CJEU within the European integration project covers
all fields of EU law, having gradually extended to new “territories”. For instance, the case
law related to the internal market's functioning was essential for its development in the
1970s and 1980s7, and the Le Verts and Chernobyl rulings continued the process of
constitutionalizing EU law that began in the 1960s.8 Another significant step was made
in the 1990s with the recognition of a general principle of state liability for compliance
with EU law.9 At the turn of the century, the CJEU developed the rights of non-economic

1
Antoine Vauchez, Integration-through-Law: Contribution to a Socio-history of EU Political
Commonsense (Federal Reserve Bank of St Louis 2008) 8.
2
Ibid.
3
Mauro Cappelletti, Monica Seccombe and Joseph H. H. Weiler, ‘Integration Through Law: Europe and
the American Federal Experience. A General Introduction’ in Cappelletti Mauro, Seccombe Monica and
H. Weiler Joseph (eds), Book 1 A Political, Legal and Economic Overview (De Gruyter 1986) 8
<https://doi.org/10.1515/9783110921540.3> accessed 2023-01-14 ibid.
4
Vauchez (n 1).
5
Case 26/62 Van Gend en Loos ECLI:EU:C:1963:1 and Case 6-64 Costa v Enel ECLI:EU:C:1964:66.
6
Miguel Poiares Maduro and Loïc Azoulai, The past and future of EU law : the classics of EU law revisited
on the 50th anniversary of the Rome Treaty (Hart 2010).
7
Case 8-74 Procureur du Roi v Benoît and Gustave Dassonville ECLI:EU:C:1974:82 ; Case 120/78 Rewe-
Zentral AG v Bundesmonopolverwaltung für Branntwein. ECLI:EU:C:1979:42.
8
Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament ECLI:EU:C:1986:166.
9
Joined cases C-6/90 and C-9/90. Andrea Francovich and Danila Bonifaci and others v Italian Republic.
ECLI:EU:C:1991:428.

4
actors, clarifying the rights and obligations within the framework of the free movement
of persons,10 and promoted the defence of fundamental rights in the EU.11 More recently,
in the context of the rule of law crisis in Hungary and Poland, the CJEU has notably
stimulated EU values by providing the necessary basis for an increasing number of
preliminary references under Article 267 TFEU and infringement proceedings in
accordance with Article 258 TFEU. 12

Predictably this active stance has drawn criticism throughout the years, leading to
accusations of judicial activism against the judges in Luxembourg13. While it is
undeniable that claims of activism have been made since the 1960s, they became more
serious and frequent in the 1980s and 1990s. These accusations were made from the
beginning by politicians, namely Margaret Thatcher who stated that “some things at the
Court are very much to our distaste”14, or, more recently by former German President
Roman Herzog, who criticised the work of the CJEU.15 On the academic level, Hjalt
Rasmussen's now eminent book On Law and Policy in the European Court of Justice
marked the beginning of hostilities against the CJEU16, having been followed by many
other books on the subject. 17

In the realm of the national judiciary realm, Dieter Grimm, a former judge of the German
Constitutional Court, stated that the characteristics of a covert “coup d'état” were present
in the case law concerning direct effect and primacy.18

10
Case C-85/96 María Martínez Sala v Freistaat Bayern. ECLI:EU:C:1998:217 ; Case C-184/99. Rudy
Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve. ECLI:EU:C:2001:458 ; Case C-
138/02. Brian Francis Collins v Secretary of State for Work and Pensions. ECLI:EU:C:2004:172 ; Case C-
34/09. Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm). ECLI:EU:C:2011:124
11
Antonio Tizzano, ‘The Role of the ECJ in the Protection of Fundamental Rights’ in Continuity and
Change in EU Law : Essays in Honour of Sir Francis Jacobs (Oxford University Press 2008)
12
Rita Sineiro Andrade Aroso Duarte, ‘O papel do TJUE na salvaguarda do Estado de Direito no âmbito da
União Europeia: o verdadeiro guardião dos valores da União?’ (2022)
13
T Hartley, ‘he European Court, judicial objectivity and the constitution of the EU’ 112 Law Quarterly
Review.
14
46 PARL. DEB., H.L. (5th ser.) 560 (UK) (1993).
15
Roman Herzog and Lüder Gerken, ‘Stop the European Court of Justice’ (Freiburg, Centrum für
Europäische Poliitik, 2008).
16
Hjalte Rasmussen, On law and policy in the European Court of Justice : a comparative study in judicial
policymaking (Martinus Nijhoff/Dr W. Junk Publishers 1986).
17
Joseph HH Weiler, ‘The Court of Justice on trial–A review of Hjalte Rasmussen: On law and policy in
the European Court of Justice’ 24 Common Market Law Review Anthony Arnull, ‘The European Court
and judicial objectivity: a reply to Professor Hartley’ 112 Law Quarterly Review 411 Mauro Cappelletti,
‘Is the European Court of Justice" running wild"?’ European Law Review 311.
18
Carl Baudenbacher, Judicial Independence : Memoirs of a European Judge (Springer 2019).

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In this regard, the Court has already been accused of almost everything, including
allegedly supporting the more powerful Member States,19 promoting a neo-liberal
agenda20, and even implementing its own policy.21 In this sense, while critics such as
Rasmussen contended that the Court ignored the Treaties’ wording, disregarding the
intentions of the “Founding Fathers"22, authors such as Hartley or Neill accused the CJEU
of pursuing a federalist agenda.23

These criticisms share the common view that judicial activism is an incorrect conduct of
the judiciary that devaluates judicial power because of the alleged anti-democratic nature
of activism. However, the CJEU’s case law shows that this is not the case. The active
posture of the Court of Justice over its 70 years of existence has been synonymous with
the development of social protection in the EU, the development of human rights, and the
protection of the rule of law. Therefore, throughout this thesis, I will try to define the
concept of judicial activism and frame it in the context of CJEU.

2. Research Question
In view of the above, the primary research question in this thesis is:

To what extent can the Court of Justice of the European Union case law be
considered judicially activist?

The research question will be answered pursuant to the following sub-questions:

1. What role does the CJEU play in the European integration project and
how does it influence the perception of the CJEU’s judicial activist
nature?
2. To what extent does the CJEU’s legal reasoning in its case-law motivate
accusations of judicial activism?

19
Pavel Belchev, Is the Court of Justice of the European Union a mere instrument in the hands of member
states (2013).
20
Clemens Kaupa, ‘Maybe not Activist enough? : on the Court's Alleged Neoliberal Bias in its Recent Labor
Cases’ Judicial activism at the European Court of Justice.
21
Hartley (n 13).
22
Rasmussen (n 16).
23
Patrick Neill and Forum European Policy, The European Court of Justice : a case study in judicial
activism (European Policy Forum 1995).

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 3. Can judicial activism be a form of protection of legality and how has
CJEU's recent jurisprudence contributed to the defence of the rule of law
in the EU?
4. What new developments have occurred because of the Portuguese
Judges’ case, and how these innovations can be interpreted as acts of
judicial activism?

3. Methodology

Doctrinal legal research is the primary research methodology employed in the thesis. It is
important to offer information on this controversial topic to determine if the criticism of
the CJEU's judicial activism is justified.

To establish a legal foundation for the problem, the research will be carried out by
collecting a wide variety of original literature related to the subject. The primary sources
of law, which include pertinent EU Treaties, EU Secondary Legislation, and CJEU case
law, will be analysed. Additionally, to support the assessment of the general thesis,
secondary sources including doctrines, academic sources, and legal reviews will also be
used.

Chapter 2 is based on theoretical research. The primary objective is to examine the

philosophical and historical foundations of judicial activism to understand how each´s
particular view about the concept of law and the role of a court, in this case, the CJEU,
affects how activism is perceived. This research illustrates why some critics perceive the
role of the CJEU as being illegitimate and why its interpretation techniques can be seen
as "activist”.

The main type of research used in Chapter 3 is conceptual legal research. The goal is to
first examine the difficulties in defining the concept of judicial activism before examining
the various definitions of the term that are already in use. To illustrate this difficulty my
main reference is articles published both in the USA and Europe as well as the case law
of the CJEU.

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Finally, in Chapter 4 I will make a case research methodology. I will analyse the
Portuguese Judges Case of the CJEU to estimate its relevance in the ongoing rule of law
crisis. In this chapter, I am going to review this case, using the lessons learned from the
second and third chapters to scrutinise the legal reasoning of the Court of Justice.

4. Thesis Structure

In Chapter 2, I will analyse the philosophical and historical roots of judicial activism,
focusing on the intersection of the formalist perspective of the law with the idea of
activism, framing the legal reasoning of the CJEU in this discussion. After that I will
identify the legal and institutional limits to the performance of the CJEU, perceiving the
limits of judicial interpretation.

In Chapter 3 I will use the lessons learned in Chapter 2 to frame the different definitions
of judicial activism in the context of the CJEU. For that, I will "travel" to the USA to
assess whether the extensive conceptualization of the notion of judicial activism in the
American context can be framed in the work of the CJEU.

Chapter 4's primary source is the Portuguese Judges case24. In this way, I will show that
the CJEU's interpretation is both original and well-supported by strong legal reasoning. I
will evaluate the legal rationale used by the CJEU in this case and pinpoint the
components that may be regarded as "activists" to show how a dynamic reading of the
Treaties might protect the rule of law and legality in the EU legal system.

24
Case C-64/16. Associação Sindical dos Juízes Portugueses v Tribunal de Contas ECLI:EU:C:2018:117

8
 CHAPTER 2
The Origin of the Accusations of Judicial Activism in the CJEU

1. Introduction:

In this chapter, I will begin by analysing the philosophical and historical roots of judicial
activism, focusing on the intersection of the formalist perspective of law with the idea of
activism.
As a starting point, it should be noted that the majority of analysts and observers, both in
the USA, where the phrase was first used, and in Europe, view judicial activism as
inappropriate behaviour.25 Anthony Arnull, for example, underlines that “judicial
activism is, in principle, widely disapproved in the Member States"26. He emphasizes that
this disapproval is the result on the one hand of the inconsistency of judicial activism
“with Montesquieu's famous description”27, which influenced the countries of civil law,
and on the other, a consequence of the conflict between the concept of judicial activism
with the “idea of majoritarian democracy and the traditional reluctance of courts to
interfere with the will of parliament”, in the Nordic Countries.28

Nevertheless, and despite the undeniable popularity of the term the notion of judicial
activism is still utterly vague. In this sense, as Arnull’ underlines, the term judicial
activism is “far too indeterminate to provide a useful prism through which to view the
Court's case law”.29 This uncertainty stems from the fact that our perspective on the
concept of judicial activism is influenced by the understanding of what is the law and the
role of the judiciary. If we consider that the judiciary should be just the "mouthpiece of
the law", the definition of judicial activism is simple: any action taken by a judge beyond
the letter of the law constitutes inadmissible activist behaviour. However, the meaning of
judicial activism will be more difficult to explain if we believe that the judiciary should
have a broader goal, one that goes beyond straightforward textual interpretation. For this
reason, before defining the term judicial activism in Chapter 3, I will first analyse the
evolution of the role of the judiciary and how the ideological struggle concerning the

25
Keenan D Kmiec, ‘The origin and current meanings of" judicial activism"’ 92 California Law Review
1441.
26
Anthony Arnull, ‘Judicial activism and the European Court of Justice: how should academics respond?’
in Judicial Activism at the European Court of Justice (Edward Elgar Publishing, 20130329 2013), 215.
27
Ibid.
28
Ibid.
29
Ibid, 230.

9
functions, powers, and limits of the judiciary power condition the discussion on judicial
activism, especially in the case of CJEU. I will look at the origins of the accusations of
judicial activism, the role of the Court of Justice, and how the relationship between the
different approaches to judicial interpretation influences the notion of activism. The
starting point in this regard will be the work of Montesquieu.

2. Montesquieu’s fault?

As a first step, it is necessary to acknowledge that the notions of judicial activism and
legal interpretation are poorly understood. As Orest Pollicino points out, there is a
conviction in the academic discussion that there is a clear distinction “between legal
interpretation and judicial activism”30. Again, in the words of Pollicino, the “judicial
function involves per se not only the interpretation of law but also its creation”31. For this
reason, the difference between legal interpretation and judicial law-making can be in
many cases tenuous.

In this regard, former Advocate General Poiares Maduro underlines that the debate
concerning “legal interpretation often assumes a broader dimension linked to the proper
role of courts in a democratic society"32. This idea emphasised by Poiares Maduro
explains two fundamental notions: first, our perception of judicial activism is influenced
by our understanding of what is law. Secondly, this assessment will also affect our
perception of the role of the judge and the courts, influencing our opinion about activism.
Therefore, it is not surprising that the function of judges is considered a “battleground for
opposing ideologies concerning the functions, powers, and limits of the judiciary”. 33

The book The Spirit of Law by the French philosopher Montesquieu is perhaps the work
that has had the largest impact on this "battlefield". The well-known phrase, "Les judges
ne sont que la bouche qui prononce les paroles de la loi”34, continues to be one of the
most significant insights concerning the judiciary's function today. The legacy of

30
Oreste Pollicino, ‘Legal reasoning of the court of justice in the context of the principle of equality between
judicial activism and self-restraint’ 5 German Law Journal 283, 285.
31
Ibid.
32
Luis Miguel Poiares Pessoa Maduro, ‘Interpreting European law: judicial adjudication in a context of
constitutional pluralism’ European Journal of Legal Studies, 2.
33
Pollicino (n 30) 283.
34
Charles de Secondat baron de Montesquieu, Esprit des lois, vol 1 (Firmin Didot frères, fils et cie 1872)
134.

10
Montesquieu continues to foster the notion of the judge as a "phonograph" that repeats
"exactly what the law had definitely declared," as Richard Posner suggests.35

Following this formalistic approach, a judge can categorise a case's outcome as "being
correct or incorrect, in approximately the same way that the solution to a mathematical
problem can be pronounced correct or incorrect”36. In other words, the task of the
judiciary is reduced to nothing more than the projection of the legal norm.

The constitutional power of the 19th century is a mirror of this thought, based on a clear
division of powers between the three branches of the State, where the judge did not have
the authority to make any material additions or modifications of any kind in the moment
of the ruling. If the right answer to any case can be found in the law, the notion of activism
makes no sense, given the inexistence of judicial discretion within this model. Otherwise,
the judges would start to make law and no longer interpret it, violating the principle of
separation of powers.37

However, it is undeniable that this approach does not reflect the "open texture and
indeterminacy" of law as we understand it today, as Maduro underscores.38 In this sense,
this formalistic vision lost force because of the social transformations in several countries
seen in the first half of the 20th century, giving space to other elements of legal
interpretation.39

This reform was necessary as a result of a change in how the State was conceptualised,
which gave governments a greater responsibility to defend the rights and interests of their
citizens. This turn contributed to a paradigmatic transformation, creating fluctuations in
the constitutional order and the judiciary, handing the judicial power the challenging task
of concretizing that protection.40 As a consequence, the rule of law expanded into

35
Richard A Posner, The federal courts: Challenge and reform (Harvard University Press 1999), 307.
36
Richard A Posner, ‘Legal formalism, legal realism, and the interpretation of statutes and the constitution’
37 Case W Res L Rev 179, 181.
37
Andrei Koerner, ‘Ativismo Judicial?: Jurisprudência constitucional e política no STF pós-88’ Novos
estudos CEBRAP 69.
38
Luis Miguel Poiares Pessoa Maduro, We the court: The European Court of Justice and the European
economic constitution (Bloomsbury Publishing 1998) 16.
39
Pollicino (n 30).
40
Ibid.

11
 41
traditionally unfamiliar domains, pushing for alterations in legal reasoning. This
extension increased state regulation frequently focused on the application of unclear
principles and conceptions.42 That is, the law became more indeterminate, and more open,
demanding a different interpretative effort.43

In this context, several different approaches appeared, notably the methodologies of Hans
Kelsen and HLA Hart. The first author argues that judicial interpretation gives space for
different understandings since Kelson's legal interpretation theory rejects the purely
cognitive exercise advocated by the formalist school.44 HLA Hart stands in the middle of
these two theories, accepting the idea of “judicial discretion” only in so-called areas of
“penumbra”45. Outside of these areas, the judge barely had room for manoeuvre.

Naturally, this is not the place to support or deny any of these theses. However, it is crucial
to realise that even though the era of legal formalism has passed, this positivist perspective
continues to have a significant impact on how we view the role of judges, as evidenced
by the extreme reluctance to accept interpretations that go beyond the letter of the law.
As Maduro explains the theories of interpretation that highlight the support for textualism
are “theories that articulate a vision of judicial deference and a conception of courts as
simple carriers of the legislative will"46. Of course, in these courts, there is no room for
judicial discretion or "any autonomous set of normative preferences or value choices”.47.
Formalism and its obsession with textualism continue to influence hugely how we view
the work of judges, which are frequently still seen as a "phonograph".48 As Bengoetxea,
states the debate in legal theory historically “was dominated by the contrast between
natural law, legal realism, legal positivism, and issues of interpretation were
secondary”.49

41
Poiares Pessoa Maduro (n 32).
42
Edward L Rubin, ‘Law and legislation in the administrative state’ 89 Colum L Rev 369.
43
Pollicino (n 30).
44
Hans Kelsen, Pure theory of law (Univ of California Press 1967)
45
Herbert Lionel Adolphus Hart, ‘Positivism and the Separation of Law and Morals’ in Law and Morality
(Routledge 2017) 607.
46
Poiares Pessoa Maduro (n 32) 5.
47
Ibid.
48
Posner, The federal courts: Challenge and reform (n 35).
49
Joxerramon Bengoetxea, ‘Text and Telos in the European Court of Justice-Gunnar Beck, The Legal
Reasoning of the Court of Justice of the EU (Hart Publishing2012) 486 p., ISBN 9781849463232-Gerard
Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge University
Press2012) 344 p., ISBN 9781107001398-Elina Paunio, Legal Certainty in Multilingual EU Law
(Ashgate2013) 234 p., ISBN 9781409438618-Suvi Sankari, European Court of Justice Legal Reasoning in

12
Because of this, there is still a tendency to think of courts as little more than enforcers of
the written law. Therefore, it is essential to understand the CJEU's organizational structure
and the process by which the Court of Justice interprets EU law, as well as the degree of
judicial discretion that the judges in Luxembourg enjoy.

3. The Court of Justice: a dispute settler?

As Koen Lenaerts, the President of the CJEU, and José A. Gutiérrez-Fons explain, the
discussion about judicial activism is useless without first discussing what the role of the
CJEU should be.50

In this regard, Fuad Zarbiyev identifies two models51: the first one, where the judges are
seen only as “dispute settlers”52; and the second one, where judges have “the ability and
powers to give meaning to public values of the community within which they operate”.53
Of course, the first model reflects the formalist view of the law, while the second is closer
to the theories of Kelsen and Hart.

The CJEU resembles the second model significantly more than the first. The Court of
Justice was created, as is well known, in the years immediately following World War II,
a time when the judiciary in Europe underwent significant changes. As Koen Lenaerts
and Gutiérrez-Fons note, the CJEU's limited role as “bouche de la loi” or as dispute settler
is incompatible "with the mission with which the authors of the Treaties entrusted” the
Court of Justice, specifically regarding the interpretation and application of the Treaties.54
As the same authors claim, the Member States’ constitutional courts would not have
accepted a "formalist interpretation" at the time of the creation of the Court of Justice55.

Context (Europa Law Publishing2013) 275 p., ISBN 9789089521170: Four Recent Takes on the Legal
Reasoning of the ECJ’ 11 European Constitutional Law Review 184, 214., 11(1), 184-216.
50
Koen Lenaerts and José A Gutiérrez-Fons, ‘To say what the law of the EU is: methods of interpretation
and the European Court of Justice’ 20 Colum J Eur L 3, 28.
51
Fuad Zarbiyev, ‘Judicial activism in international law—a conceptual Framework for analysis’ 3 Journal
of International Dispute Settlement 247.
52
Martin Shapiro, Courts: a comparative and political analysis (University of Chicago Press 2013)
53
Owen M Fiss, ‘Foreword: The forms of justice’ 93 Harv L Rev 1.
54
Lenaerts and Gutiérrez-Fons (n 50).
55
Ibid.

13
In this sense, Andreas Grimmel underlines that the CJEU “was never thought to be a panel
of judges merely dependent on the goodwill of its contracting parties"56. The CJEU stands
out from other international courts due to its superior arsenal of "procedural weapons"
and its broader range of powers. As an illustration, no international treaty has ever created
a system of direct collaboration with national courts, as it did with the system of Article
267 TFEU (Preliminary Ruling) or granted private citizens the power to launch judicial
actions.

As stated by Weatherill, the CJEU's role through its jurisprudence is to "breathe life into
the Treaty".57 In this regard, using the expression devised by Owen Fiss, the ability of the
CJEU “to give meaning to the public values of the community” where the Court of Justice
operates is clear58. For instance, the creation of the so-called mandatory requirements to
complement Article 36 TFEU is a perfect example of this, where the CJEU by creating
this judge-made concept reflected important policy concerns that were relevant or
prominent when the Treaty of Rome was drafted, showing a concern to give meaning to
the public values of the community by addressing local issues in different Member State,
or by solidifying important public interests for the entire EU, such as environmental
concerns or consumer interests.59 This concern is evident in other areas. In Nold v.
Commission stated that fundamental human rights are an essential component of the
general principles of EU law and in the Defrenne ruling60, regarding equal pay for men
and women, the CJEU laid down the “foundations for the future development of EC sex
equality law”.61

In this sense, the functions conferred by the Treaties on the CJEU far exceed the function
of an ordinary “dispute settler”. The mandate to ensure the interpretation and application
of EU law under Article 19 TEU extends from the preliminary reference system (Article

56
Andreas Grimmel, ‘‘This is not life as it is lived here’: the European Court of Justice and the myth of
judicial activism in the foundational period of integration through law’ 7 European journal of legal studies
61, 15.
57
Stephen Weatherill, Law and integration in the European Union (Oxford University Press, USA 1995)
185.
58
Fiss (n 53).
59
Case 302/86. Commission of the European Communities v Kingdom of Denmark. ECLI:EU:C:1988:421;
Case C-470/93 Verein gegen Unwesen in Handel und Gewerbe Köln e.V. v Mars GmbH
ECLI:EU:C:1995:224. For more information: Catherine Barnard, The substantive law of the EU: the four
freedoms (Oxford university press 2022).
60
Case 43/75. Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena.
ECLI:EU:C:1976:56.
61
Nicole Busby, ‘Social Policy: Case 43/75 Defrenne v Societe Anonyme Belge de Navigation Aerienne
(SABENA)’, 51.

14
267 TFEU) to the infringement actions (Articles 258 and 259 TFEU) to other functions
performed by the Court. The dynamics of Article 267 TFEU which are based on
cooperation and dialogue between courts prove that the work of the CJEU far transcends
the dispute between the parties. In this sense, as Poiares Maduro mentions, Article 267
TFEU requires that the Court of Justice “must also state the law" providing a "thicker
normative understanding of the law beyond the decision in the case of hand”.62 This need
is explained by the expanded role of the CJEU under the preliminary ruling procedure
where the Court of Justice provides national courts with guidance on how to interpret and
implement EU law in a specific case, offering at the same time a wider legalistic lesson
for future cases.63

This development demonstrates that the CJEU is a court that responds to the demands
imposed by the dynamics of European law and proves that it is more than just the law's
mouthpiece. This is one of the reasons that a minimalist approach to the judicial role is
difficult to fit with a legal order such as the EU.64 The other reason is the particularities
of European legislation, which force a legal interpretation more grounded in teleology
than textualism. The section that follows will explain this.

4. How does the CJEU interpret EU law?

In contrast to what one might expect, there is a closer connection between judicial
activism and judicial interpretation. As Oreste Pollicino states, while judicial
interpretation is considered a "legitimate expression of judicial function"65, judicial
activism is seen as a degeneration of the judiciary involving:

"A judge's arbitrary intrusion into the political arena by giving priority to values
other than legal ones, such as, in the case of the ECJ, supporting the process of
European integration”.66

The problem with this strict distinction between judicial activism and judicial
interpretation is that the latter can either be less active (self-restraint) and rely on
conventional interpretative elements, such as the literal element or the historical

62
Poiares Pessoa Maduro (n 32), 9.
63
Ibid.
64
Ibid.
65
Pollicino (n 30), 285.
66
Ibid, 286.

15
interpretation, or can depend on more dynamic interpretative components, such as
teleological, systematic, and contextual elements.67 In other words, by actively
interpreting the law, the CJEU can be activist without disregarding the letter of the law.
For this reason, as Poiares Maduro underlines, “some perceive teleological interpretation
as a source of judicial activism”.68 Teleological interpretation in EU law is not limited to
alluding to an interpretation of the applicable legal rules in a specific case, as Poiares
Maduro notes.69 The former AG argues that the CJEU adopts a "meta-teleological"
approach in this regard, which alludes to a particular systemic vision of the EU legal
system that shapes how all of its legislation is interpreted.70

Therefore, understanding how the CJEU interprets the Treaties, and the EU secondary
legislation is essential.71 Article 19 TEU is clear: the Court of Justice “shall ensure that
in the interpretation and application of the Treaties, the law is observed”.72 The Treaties
are explicit concerning the CJEU’s mission. However, they do not specify how EU law
shall be interpreted, and arguably therefore, given its responsibilities under Article 19
TEU, the Court of Justice was free to choose its interpretive approach73. In this regard,
the CJEU explained its interpretive methodology in Merck v. Hauptzollamt Hamburg-
Jonas ruling:

“In interpreting a provision of [Union] law it is necessary to consider not only its
wording but also the context in which it occurs and the objectives of the rules of
which it is part”.74

Through this transcript, it is possible to understand that the Courts of Justice’s legal
analysis is guided by text, context, and telos as with many other courts75. In other

67
Sabine Saurugger and Fabien Terpan, Measuring Judicial Activism: Is the Court of Justice of the
European Union an activist court (2017).
68
Poiares Pessoa Maduro (n 32) 7.
69
Ibid.
70
Ibid.
71
Ibid.
72
Consolidated Version of the Treaty on European Union [2008] OJ C115/13
73
Lenaerts and Gutiérrez-Fons (n 50).
74
Case 292/82. Firma E. Merck v Hauptzollamt Hamburg-Jonas ECLI:EU:C:1983:335, para 12.
75
Poiares Pessoa Maduro (n 32).

16
decisions, the Court reinforced this approach, stressing that the "legislative history of a
provision of EU law may also reveal elements relevant to its interpretation".76

However, it is undeniable that CJEU adopted a path based on a strong teleological

component to fulfil its mandate of "interpretation and application of the Treaties”.77
Following Bengoexta's typology, teleological interpretations can be further broken down
into three categories78 first, in the "consequentialist interpretation” the Court of Justice
focuses on the effects of a decision.79 Second, the "functional interpretation", where the
CJEU aims to ensure the effet utile of EU law80, and finally a "teleological interpretation
stricto sensu", where the CJEU interprets an EU provision considered ambiguous or
incomplete bearing in mind the objective of such provision.81

The CJEU has, in conclusion, "had limited recourse to the traditional methods of
interpretation," as Albors-Llorens emphasises, despite using the teleological approach to
interpretation more frequently than other courts”.82 This increased frequency is viewed
by some as an activist gesture, though. The reasons for this I will explain in the next
section.

5. Is judicial interpretation a form of activism?

As Donna Starr-Deelen and Bart Deelen mention, the CJEU because of its creative
teleological interpretation "has been accused of being inconsistent and undermining a
European architecture based on the rule of law".83 This approach was criticised by authors
such as Rasmussen, Hartley, Neill, and Conway, who claimed that the Court's teleological
interpretation removed all restrictions imposed by the letter of the law and gave judges
unrestricted freedom to determine the correct interpretation of a given rule.84 In this sense,

76
Case C-355/21. Perfumesco.pl sp. z o.o., sp. k. v Procter & Gamble International Operations SA
ECLI:EU:C:2022:791, para 39.
77
Lenaerts and Gutiérrez-Fons (n 50).
78
Joxerramon Bengoetxea, The legal reasoning of the European Court of Justice: towards a European
jurisprudence (Oxford University Press, USA 1993)
79
Costa v Enel (n 5).
80
Joined cases C-188/10 and C-189/10. Aziz Melki and Sélim Abdeli ECLI:EU:C:2010:363
81
Van Gend en Loos (n 5).
82
Albertina Albors Llorens, ‘The European Court of Justice, more than a teleological Court’ 2 Cambridge
Yearbook of European Legal Studies 373, 382.
83
Donna Starr-Deelen and Bart Deelen, ‘The European Court of Justice as a federator’ 26 Publius: The
Journal of Federalism 81, 87.
84
Lenaerts and Gutiérrez-Fons (n 50).

17
Conway claims that the use of broad systemic considerations was used by the CJUE "to
justify an interpretation that was contrary to both the text and to legal tradition”.85

In the same vein, Neill states the following idea.

“The ECJ has indulged in creative jurisprudence on many occasions. The Treaty
texts and directives agreed between the Member States may at any time be given
by the Court a meaning and impetus that may not have been contemplated by the
negotiators”.86

This quote from Neill´s article is crystal clear. The approach followed by the CJEU does
not represent an act of judicial interpretation, but of judicial activism. In the same sense,
Rasmussen points out that the lower the textual legitimacy of a given interpretation the
more easily a teleological jurisprudence “will result in non-compliance and other forms
of defiance”.87 The same author further states that the CJEU "sought to deprive European
political leaders of the opportunity of controlling the pace and rhythm of the movement
toward the ultimate common goal".88 From a slightly different angle, Neill and Hartley
argued that the CJEU's interpretive approach is illegitimate because it deviates from the
recognized canons of interpretation applied within the different legal systems in the EU,89
“particularly within English law, as Horsley points out.90

Even though not unexpected, this critique cannot be accepted. In this regard, in addition
to the fact that the CJEU was created at a time of change concerning the processes of
judicial interpretation, it is important to call attention to the particularities of EU
legislation that support the widespread use of a teleological interpretation.91 In this regard,
it is pivotal to underline the open nature of the Treaties and the multilingualism of EU

85
Gerard Conway, The limits of legal reasoning and the European Court of Justice (Cambridge University
Press 2012), 205.
86
Neill and European Policy (n 23) 2.
87
Rasmussen (n 16) 29.
88
Ibid 380.
89
Hartley (n 13).
90
Thomas Horsley, ‘Reflections on the role of the Court of Justice as the “motor” of European integration:
Legal limits to judicial lawmaking’ 50 Common Market Law Review, 938 ibid.
91
Lenaerts and Gutiérrez-Fons (n 50).

18
law92, as well as the absence of legislative action during the early years of integration,
which compelled the Court to act.93

In this regard, from the outset, it is pivotal to underline that there are numerous sources
of "indeterminacy or uncertainty" in EU law94, something which is stressed by Gunnar
Beck, who contends that these factors set EU law apart from other legal realities.95 In this
regard, the Treaties are the outcome of diplomatic conversations providing only a
fragmented picture of how the EU should operate, making European law much more
imprecise and unclear. In the words of Koen Lenaerts and José A. Gutiérrez-Fons, this
inaccuracy explains why a “purely textualist approach is not enough to interpret,
completely and consistently, the provisions of the Treaties which are of open texture”.96
The same authors conclude that the CJEU has "no choice but to take into account the
objectives pursued by the Treaties"97, giving special importance to teleological
interpretation.98 On the opposite side, Rasmussen states that "the interpretative work of
the Court may have been inspired by the spirit of integration”.99 The EU Treaties are
distinguished by the incorporation of a wide range of overarching functional goals that
are brought together to ensure an "ever-closer Union of the Peoples of Europe”.
Therefore, as Hartley mentions it is difficult to criticize this approach when it is the
Treaties themselves to establish a clear integrationist path.100

In this sense, as Poiares Maduro claims, reasoning through "telos will be an increased
need in the context of a pluralistic legal order".101 The space for conflict between legal
norms grows because of pluralism, which often makes legal provisions more ambiguous,
requiring an interpretation far beyond the letter of the law.102 In short, textualism in EU
law is limited by the characteristics of Treaties and because of the principle of linguistic
equality, which gives the same legal force to all twenty-four EU languages, increasing
the pluralism and uncertainty of European law.103 As Gunnar Beck correctly underlines,

92
Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2013).
93
Grimmel (n 56).
94
Poiares Pessoa Maduro (n 38) 17.
95
Beck (n 92).
96
Lenaerts and Gutiérrez-Fons (n 50).
97
Ibid 25.
98
Ibid 27.
99
Rasmussen (n 16) 27.
100
Horsley (n 90).
101
Poiares Pessoa Maduro (n 32) 8.
102
Ibid.
103
Lenaerts and Gutiérrez-Fons (n 50).

19
because ambiguity and uncertainty are common components of EU legislation “no less
than the EU treaties," this vagueness extends from the Treaties to EU legislation.104 This
imprecision is explained by the fact that decisions at the EU level are decided by either a
qualified majority or unanimity in addition to the involvement of the European
Parliament.105

Additionally, these criticisms are a consequence of a bias against a teleological

interpretation. In this regard, as Albertina Albors Llorens states "there has been
considerable reluctance to accept this method of interpretation, mainly because it is
viewed as dangerous and undemocratic" in the common law tradition, from which most
critics come.106 This inclination must be categorically rejected. As Poiares Maduro points
out, teleological interpretation can be equally "faithful to the democratic outcomes since
it prevents textual manipulation of the legal rules”107, avoiding unfair situations not
foreseen by the legislator.108 The CJEU can fill up any gaps in such unfair situations by
exerting a teleological extension, but they can also be fixed in the opposite direction by
the so-called teleological reduction.109 In this regard, Poiares Maduro underlines the
following idea:

“An interpretation that pays attention to the goals of the rule, and not simply its
wording, prevents opportunistic behaviours and minimises the risk of an
interpretative manipulation of the legislation"110.

In these cases, manipulation would create effects that "neither wished for nor debated in
the political process"111, and therefore the intervention of the CJEU can be justified. The
Foto-Frost decision is a prime illustration of this point.112 In this case, the Court ruled
that the Court of Justice exclusively has the right to declare an EU act unlawful and that
national courts lacked this authority. Authors such as Neill and Hartley accused the Court

104
Beck (n 92) 185.
105
Susanne K Schmidt, The European Court of Justice and the policy process: The shadow of case law
(Oxford University Press 2018)
106
Llorens (n 82) 381.
107
Poiares Pessoa Maduro (n 32) 10.
108
Ibid.
109
Case 283/81. Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health. ECLI:EU:C:1982:335
110
Poiares Pessoa Maduro (n 32).
111
Ibid.
112
Case 314/85. Foto-Frost v Hauptzollamt Lübeck-Ost. ECLI:EU:C:1987:452

20
of Justice of being overly activist because the CJEU considered the implications of
national courts having the authority to void EU acts, supporting its findings in a
consequentialist interpretation of Article 177 EC (now article 263 TFEU).113 Advocating
a completely different perspective, AG Mancini claimed that a literal interpretation of the
Treaties, in this case, would lead to "dangerous and anomalous results”.114 Concerning
the same case David T. Keeling stated the following idea:

“[No]Principle of hermeneutics which says that clever textual arguments must

triumph even though produce absurd results which are in the interest of none
except mischief-makers bent on destroying the coherence of an entire legal
order”.115

I agree. It would be contrary to the objectives of the Treaties, for national courts to be
able to declare void EU acts. This is an extreme case in which the CJEU was forced to
look beyond that specific legal norm, assessing the case in the broader context of the
Treaties, and not only in the specific context of the provision.

Considering such a ruling, it is critical to enquire: Has the Court acted systematically
against the Treaties during the past 60 years as several critics point out? The answer
appears to be negative, as Arnull explains that "many of the decisions often criticised as
activist were not reached contra legem, that is to say, by disregarding the express terms
of the Treaties”.116 Contrary to what the critics have argued117, the Court has also rarely
entered reserved areas for Member States. As Arnull suggests the CJEU only “answer
questions on which the Treaties were silent or ambiguous in a particular way” 118. In this
sense, the CJEU can be considered activist not because it goes against the letter of the
Treaties119, but because it goes beyond it, either to extend its interpretation, as happened

113
Hartley (n 13).
114
Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost ECLI:EU:C:1987:230, Opinion of Mr Advocate
General Mancini, para 5.
115
David Keeling, ‘In praise of judicial activism. But what does it mean? And has the European Court of
Justice ever practised it?’ But What Does it Mean, 524.
116
Arnull, ‘Judicial activism and the European Court of Justice: how should academics respond?’ (n 26)
224.
117
Hartley (n 13).
118
Arnull, ‘Judicial activism and the European Court of Justice: how should academics respond?’(n 26)
119
David Edward, ‘Judicial Activism–Myth or Reality?’ Legal Reasoning and Judicial Interpretation of
European Law Gostport.

21
regularly in cases such as Dassonville or Cassis De Dijon,120 or in the sense of reducing
it as happened in the CILFT judgement.121 As Rasmussen acknowledges a "mechanical
or scientific" jurisprudence is neither feasible nor desirable, and even the Court may, and
must, make choices between alternative legal constructs.122 However, this choice is not
always obvious. In this sense, David T. Keeling emphasises that the notion of judicial
activism wrongly assumes that every legal problem has a "straightforward answer that
can be found by any well-trained lawyer”123, while arguing that there is no such thing as
a single correct answer for each legal problem, something undeniable in any legal
reality.124 The point is that the existence of these "straightforward answers" in the
European law system is even more reduced by the unique characteristics of European law,
forcing the CJEU to make a more ambitious interpretive effort, as I showed throughout
this section.

6. The limits of judicial interpretation

Naturally, judicial interpretation cannot represent a carte blanche for the CJEU. As
Thomas Bingham argues, “judicial activism taken to extremes can spell the death of the
rule of law”.125 The problem, however, is that the Court's critics incorrectly equate
creative or active judicial interpretation with blatant judicial activism, viewing this
interpretive effort as an infringement on the Treaties as well as a threat to the sovereignty
of the Member States, namely to democracy, resulting in Rasmussen´s words in the
“delegitimization” of the EU judiciary. 126

In this regard, the CJEU has repeated that every "provision must be interpreted, as far as
possible, in such a way as not to detract from its validity".127 Likewise, where a provision
of EU law is open to several interpretations, preference must be given to that
interpretation that ensures the effectiveness of the provision in question.128 From the
outset, there is a limit in this area. As Koen Lenaerts and José A. Gutiérrez-Fons

120
Procureur du Roi v Benoît and Gustave Dassonville and Rewe-Zentral AG v Bundesmonopolverwaltung
für Branntwein. (n 7).
121
Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health. (n 109).
122
Rasmussen (n 16).
123
Keeling (n 116) 508.
124
Ibid.
125
Tom Bingham, The rule of law (Penguin Uk 2011) 45.
126
Rasmussen (n 16) 42.
127
Case C-403/99. Italian Republic v Commission of the European Communities. ECLI:EU:C:2001:507
128
Lenaerts and Gutiérrez-Fons (n 50).

22
underlined, the Court “must not trespass on the limit of contra legem”.129 Thus the CJEU
“must give priority to that which guarantees compliance with primary EU law and ensures
its effectiveness”.130

To this end, the CJEU must maintain a dynamic equilibrium between "making sense of
the political compromises embodied in the relevant legislation" and the fundamental
principles of the agreements that comprise European law, as Anthony Arnull puts it.131 In
other words, it is pivotal to ensure that there is mutual trust between all parties, that is,
between the CJEU, the different institutions, and the Member States. How does the CJEU
accomplish this, exactly? To achieve this end, Karen Alter underlines that the CJEU
maintains "the appearance of judicial neutrality”132, which is for Alter the “basis for
parties accepting the legitimacy of decisions”.133

How can the CJEU make sure that this confidence holds up over time? Firstly, the Court
must limit its interpretations to those permitted by the letter of the law and avoid contra-
legem interventions. A perfect example of this can be found in the cases of Jégo-Quéré
and Unión de Pequenos Agricultores v. Council where the CJEU held that despite
criticism of its approach134, a more expansive interpretation of Article 173 EC (now
Article 263 TFEU) would necessarily require a Treaty amendment, showing that it
understands its limits.135 Second, it must respect the principles of inter-institutional
balance and mutual collaboration outlined in Article 13 (2) TFEU. Thirdly, the CJEU
must pay due respect to the “common national legal traditions”136, namely by respecting
the main principles or constitutional identity of the national legal orders.137

Therefore, I argue that contrary to what several critics of the CJEU pointed out, the Court
of Justice generally respects these red lines. Three points demonstrate this precisely.

129
Ibid 16.
130
Ibid.
131
Anthony Arnull, ‘Joined Cases C-39/05 P & C-52/05 P, Sweden and Turco v. Council, judgment of the
Grand Chamber of 1 July 2008’ 46 Common Market Law Review.
132
Karen J Alter, ‘Who are the “masters of the treaty”?: European governments and the European Court of
Justice’ 52 International organization 121, 135.
133
Ibid.
134
Case C-50/00 P. Unión de Pequeños Agricultores v Council of the European Union.
ECLI:EU:C:2002:462 and Case C-263/02 P. Commission of the European Communities v Jégo-Quéré &
Cie SA. ECLI:EU:C:2004:210
135
Albertina Albors-Llorens, ‘Remedies against the EU institutions after Lisbon: An era of opportunity?’
71 The Cambridge Law Journal 507.
136
Poiares Pessoa Maduro (n 32) 10.
137
Miguel Poiares Maduro, Contrapunctual Law: Europe’s Constitutional Pluralism in Action’in N Walker
(ed), Sovereignty in Transition (Oxford, Hart Publishing 2003).

23
First, as noted by Grimmel, the Court "always demonstrated sensibility towards the legal
opinions and reasoning of national high courts."138 The relationship between the CJEU
and the German Constitutional Court (Bverfg) serves as the best example of this, as the
CJEU and the Bverfg engage in continuous constitutional dialogue about the concepts of
supremacy and sovereignty.139 In this context, recent research indicates that national
judges trust the CJEU, indicating the existence of a relationship based on dialogue
between national courts and the Court of Justice.140 Secondly, not all cases brought to
Luxembourg have been decided in favour of the expansion of EU law141. Third, the Court
has been less ambitious recently than it was in its early years. This is exactly what the
data from Fabien Terpan and Sabine Saurugger indicate, with just about 10% of activist
judgements between 2010 and 2011, as opposed to at least 20% throughout the preceding
periods.142 In the same vein, Franklin Dehousse emphasised the Court's increased caution
by stating that "the era of sweeping declarations and judgments of principle is over”.143
In the same sense, Grimmel points out that although during the foundational period, the
Court based its reasoning on a teleological stricto sensu interpretation of the Treaties, in
recent decades with the consolidation and embodiment of EU law, the CJEU case law
denotes a predominance of arguments supported by the coherence of the common legal
order, as well as, most notably, the "effet utile".144

7. Conclusion:

I started by grasping the origins of accusations of judicial activism and how formalism
continues to shape how the law is perceived, and as a result, how the actions of judges
and courts are perceived.

138
Grimmel (n 56) 19.
139
Valerie Dhooghe, Rosanne Franken and Tim Opgenhaffen, ‘Judicial Activism at the European Court of
Justice: A Natural Feature in a Dialogical Context’ 20 Tilburg Law Review 122.
140
Juan A Mayoral, ‘Impact Through Trust: The CJEU as a Trust-Enhancing Institution’
Forthcoming“Impact through Trust: The CJEU as a trust-enhancing institution” in International Courts and
Domestic Politics Marlene Wind and Andreas Follesdal (eds) Oxford: Oxford University Press, iCourts
Working Paper Series.
141
Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health. (n 109).
142
Saurugger and Terpan (n 67).
143
Franklin Dehousse, ‘The reform of the EU Courts (IV)-The need for a better focus on the European
Court's of Justice core mission’ Egmont Papers n° 96, 10.
144
Grimmel (n 56).

24
Second, I described the CJEU as a court that is concerned with expressing communal
values rather than just following the letter of the law. In this sense, the role of the CJEU
as the “motor" of the European Integration project is undeniable, providing solutions to
problems for which the Treaties had no answer. Therefore, I argue that the Court of Justice
because of the characteristics of the "new legal order" could not be limited to a static
interpretation of the law based mainly on the content of the letter of the Treaties. This
approach which was described by Rasmussen as the "invention of a teleological
inevitability"145, allowed the Court to fulfil its obligation under the Treaties. The opposite
scenario, i.e., the refusal to interpret a provision of EU law because it is unclear, silent,
or insufficiently clear, as Mertens de Wilmars points out, would constitute a clear example
of denial of justice, breaching therefore the principle of effective judicial protection
protected by Article 19 TEU and Article 47 of the Charter.146

The gap-filing of the Treaties by the CJEU sparked criticism of judicial activism, with
authors such as Rasmussen arguing that the Court of Justice had seized control of the pace
of European integration through the overuse of teleological interpretation.147 In this sense,
this chapter has also shown that there is a distrust of the use of interpretive elements other
than textualism, particularly concerning teleological interpretation. In this sense, the
Court's use of telos is framed in a context dominated by a legislative design characterised
by its vagueness and uncertainty, which compels the Court of Justice to be active to
provide solutions to the cases that reach the Palais de la Cour de Justice.

Nevertheless, this does not mean that the CJEU should not be scrutinised. In this regard,
several aspects of the CJEU's performance should be criticised, including its legal
reasoning, which is frequently flawed and with obvious logical leaps in its decisions.
These problems also involve structural problems, such as the lack of dissenting opinions
or the possibility of reappointing judges and advocates generals at the end of their terms
of office.148

145
Rasmussen (n 16) 380.
146
M DE WILMARS, ‘Reflexions sur les Méthodes d’Interprétation de la Cour de Justice des Communautés
Européennes’ Cahiers de droit européen 5.
147
Rasmussen (n 16).
148
Joseph HH Weiler, ‘Epilogue: judging the judges–apology and critique’ Judging Europe’s judges: the
legitimacy of the case law of the European court of justice 235.

25
Therefore, after identifying the role of the CJEU and the limits of the performance of
judges based in Luxembourg, it is time to define judicial activism in the context of the
CJEU.

26
 CHAPTER 3
A journey between Europe and the US in a quest to define judicial activism in the
context of the CJEU

1. Introduction

Judicial activism is frequently misunderstood, a problem that is not specific to the

European Union. In the American context, Keenan D Kmiec has stressed that judicial
activism has been defined over time "in several nonsense, even contradictory
ways”.149 Undeniably, the main literature supports Kmiec's statement with an endless
series of definitions and perspectives. In the same vein, Green argues that nonetheless of
the popularity of the concept and its common use among commenters, politicians, or
judges, the term judicial activism is “poorly understood”150. I will examine the different
attempts to define the term in this chapter, highlighting which ones can be framed in the
context of the CJEU and outlining the challenges involved in doing so. In the end, I
contend that rather than being labelled as activist, the CJEU case law should be described
as dynamic or active because not all activist judgments are detrimental to the rule of law.

2. Judicial Activism: An empty and plastic term

The difficulty to define judicial activism is largely explained by two problems: Firstly,
the emptiness of the term, and secondly the difficulty of the different notions of judicial
activism to deal with textual vagueness and indeterminacy.

In this sense, Nuno Garoupa classifies the concept of judicial activism as an "empty"
notion. 151In the same manner, Anthony Arnull argues that the term judicial activism "is
far too indeterminate to provide a useful prism through which to view the Court's case
law”.152 Both authors are right. From my perspective, judicial activism is an umbrella
concept used by politicians, journalists, and analysts to criticise the work of the courts.
As Garoupa suggests, “general commentators have tended to use the term loosely as a

149
Kmiec (n 25) 1443.
150
Craig Green, ‘An Intellectual History of Judicial activism Emory Law’ 58 Journal, 1197.
151
Nuno Garoupa, ‘Comparing Judicial Activism-Can we Say that the US Supreme Court is more Activist
than the German Constitutional Court?’ Revista portuguesa de filosofía 1089, 1090.
152
Arnull, ‘Judicial activism and the European Court of Justice: how should academics respond?’ (n 26) 30.

27
form to criticise unpleasant court decisions”.153 This void explains why the CJEU has
been accused of being activist for numerous different reasons, including the standard
assertion that the CJEU has a federalist agenda154, the alleged implementation of a
neoliberal perspective155, or the Court of Justice claimed alignment with the biggest
Member States.156 As Catarina Botelho states, the term judicial activism is an "ether label
adaptable to what we are interested in defending" characterised by its plasticity, being
employed as an opportunistic comment “that frequently neglects a methodological
critique”.157

In a sense, there are allegations to “suit every taste”, which leads me to concur with Nuno
Garoupa's assertion that “judicial activism is a form of critique when particular groups
are displeased with the outcome of constitutional review”.158 As Arnull states most
accusations of judicial activism “can be refuted by choosing a different baseline from the
accusers”.159 In this regard, CJEU president Koen Lenaerts underlines that it is always
necessary to make a key question: "who is making the fuss about such judgments”.160 In
other words, in countless situations, the criticism of activism has nothing to do with the
substance of the judgement, nor with the rationale of the ruling. For instance, Fuad
Zarbiyev argues that “those who are happy with the outcome of a case are unlikely to call
the judge activist”.161 This idea, which Zarbiyev and Lenaerts emphasise, is obvious. In
the end, the allegations of activism generally come down to the analysis of the winners
and losers of such rulings. An illustration of this circumstance can be found in the
contentious Sturgeon judgement, in which the CJEU determined that passengers who
experienced lengthy delays in addition to those who were denied boarding and those
whose flights were cancelled were eligible for compensation of up to 600 euros162. When
faced with this situation, the airlines immediately heavily criticised the Court, which

153
Garoupa (n 151) 1091.
154
Neill and European Policy (n 23).
155
Kaupa (n 20).
156
Belchev (n 19).
157
Catarina Santos Botelho, ‘O lugar do Tribunal Constitucional no século XXI: os limites funcionais da
justiça constitucional na relação com os demais tribunais e com o legislador’ Julgar 111, 121.
158
Garoupa (n 151) 1090.
159
Arnull, ‘Judicial activism and the European Court of Justice: how should academics respond?’ (n 26).
160
Judge Koen Lenaerts highlighted this argument in the High-Level Workshop ‘Judging the Judges in a
transformed Europe’ (3–4 November 2011).
161
Zarbiyev (n 51) 252.
162
Joined cases C-402/07 and C-432/07. Christopher Sturgeon, Gabriel Sturgeon and Alana Sturgeon v
Condor Flugdienst GmbH and Stefan Böck and Cornelia Lepuschitz v Air France SA ECLI:EU:C:2009:716

28
prompted them in the words of Sascha Garben to adopt a “strategy to boycott the
judgment en masse”.163 Of course, the users of these companies had the opposite reaction,
praising the results of that judgement.

Two implications can be drawn from this: First, the notion of judicial activism is
characterized by its emptiness. Secondly, the meaning of this term depends on the goals
of the accusers. In the next section I will show how despite the multiplication of
accusations of activism against the CJEU, this concept remains to be defined in European
literature.

3. Judicial Activism in Europe: An “I know when I see it” approach

This challenge to define judicial activism is even more problematic in the European
context since most European authors avoid the difficult task of defining this notion.164
Even Hjalte Rasmussen, the author who is for many the precursor of accusations of
judicial activism against the CJEU does not provide a sustained definition.165 Rasmussen
only made a distinction between three types of judicial interpretation from which it is
possible to identify situations of activism.

In the first situation, the judicial interpretation operates “within the text of the disputed
provisions”.166 In this situation, the disputed provision must provide “with two or more
rationally (almost) equally defensible decisional alternatives”.167 As Rasmussen argues
that the “overall behaviour of the Court in this area is also undeniably activist", but asserts
that in these circumstances, activism can be appropriate, using the Dassonville
"acceptable” reading of Article 30 EC (now Article 34 TFEU) as an illustration.168

In the second situation, the Court interprets the text to fill gaps, and an additional test is
needed to understand whether this interpretation constitutes an example of illegitimate
policy-making or judicial activism.169 To understand whether the gap-filling of the Court

163
Sacha Garben, ‘Sky-high controversy and high-flying claims? The Sturgeon case law in light of judicial
activism, euroscepticism and eurolegalism’ 50 Common Market Law Review, 40.
164
May Barth, ‘The Different Sides of Judicial Activism at the European Court of Justice’ Leiden University
165
Rasmussen (n 16).
166
Ibid, 26.
167
Ibid, 28.
168
Ibid, 27.
169
Ibid.

29
“constitute a transgression of judicial power”170, it is necessary, in Weiler's words, to do
an “additional test”.171 Rasmussen divides the test into “Level I” and “Level II”.
Unfortunately, the Level I analysis of this test is based on a subjective examination that
Rasmussen refers to as the “I know when I see it” attitude and the Level II analysis is
based on the evaluation of the responses of various institutions to the Court’s
judgments.172 As a result, this test does not provide us with a reliable test to identify
situations of alleged activism because of the test’s subjective nature.

In the third and last situation, the Court engages in policy decision-making because the
judicial interpretation is disrespectful of the text of the Treaties. For Rasmussen, his last
situation is “blatant and unacceptable activism”173. Following a similar logic, Hartley,
another critic of the Court merely established a “framework for discussion” close to
Rasmussen´s, based on rulings “within the text”, rulings “outside the text” and rulings
“contrary to the text”.174 These frameworks, although useful, do not define the term,
particularly since, as I showed in the previous chapter, they all confuse in many cases,
teleological interpretation with inappropriate use of judicial powers.

Another illustration of the difficulty to define this concept can be found in the book
Judicial Activism at the European Court of Justice175, where only two authors out of
sixteen sought to define the term. One of them, Maartje de Visser, argues that judicial
activism is intimately attached to how politicians, the media, and the public regularly
“perceive the legitimacy of the Court and its judgments”.176

The same author underlines that the debates over the performance of constitutional courts
are usually conducted concerning “expressions as the proper role of the court, ‘judicial
lawmaking and the court’s legitimacy and authority in the eyes of its main
interlocutors”177, a topic I have covered in Chapter 2. Arnull also focuses on the role that

170
Ibid, 28.
171
Weiler, ‘The Court of Justice on trial–A review of Hjalte Rasmussen: On law and policy in the European
Court of Justice’ (n 17), 562.
172
Rasmussen (n 16), 53.
173
Ibid.
174
Hartley (n 31), 95.
175
Bruno de Witte, Elise Muir and Mark Dawson, Judicial activism at the European Court of Justice
(Edward Elgar Publishing 2013)
176
Maartje De Visser, ‘A cautionary tale: some insights regarding judicial activism from the national
experience’ in Judicial activism at the European Court of Justice (Edward Elgar Publishing 2013), 188.
177
Ibid, 189.

30
commentators and politicians have in creating these critics178. For Arnull, an activist court
“is a Court that has been improperly strayed beyond the limits of the judicial function, by
misusing its powers”179, an idea subscribed by Convey, which underlines that “at the core
of criticism of judicial activism lies a concern that the judiciary is acting outside its proper
role”.180 Conway goes further and notes that activism in the context of legal reasoning
refers to “creative or innovative interpretations”, a topic that I have already addressed in
Chapter 2.181 Other authors claim that the activist judiciary is acting as the legislator.182

Two conclusions emerged from this review: first, there is widespread agreement that
judicial activism is linked to judicial dysfunction; and second, despite the abundance of
material on the topic, there is a glaring lack of conceptualization by European authors,
with the Rasmussen test "I know when I see it" serving as the best example. For these
reasons, the next step to comprehend this notion is to visit the USA, the country where
the term was first used in the 1940s.

4. Judicial activism in the USA: a useful comparison?

The creation of the term judicial activism dates back to Arthur Schlesinger’s Fortune
magazine article in the 1940s183. Despite the importance of Schlesinger’s work, this
article did not define judicial activism in a precise way. Since then, many have tried to
define the concept, although without great success. In this sense, I will start by examining
the American definitions of the term to determine whether they make sense in the context
of the CJEU.

In the US, a vast group of legal academics such as Greg Jones or Cass Sunstein, often
portray judicial activism as “judicial invalidation of legislative enactment”184. The CJEU
has the power to examine the legality of EU acts to guarantee their lawfulness under
Article 263 TFEU. Therefore, this definition must be disregarded instinctively. Indeed,
most definitions defended over time by American authors run into the same problem. For

178
Arnull, ‘Judicial activism and the European Court of Justice: how should academics respond?’.
179
Ibid, 215.
180
Conway (n 85), 182.
181
Ibid.
182
Ernő Várnay, ‘Judicial Passivism at the European Court of Justice?’ 60 Hungarian Journal of Legal
Studies 127.
183
Arthur SCHLESINGER JR, The Supreme Court: 1947, Fortune, n. 35 (jan 1947).
184
Kmiec (n 25), 1463.

31
example, Lino A. Graglia defends that judicial activism translates into practice by "judges
of disallowing policy choices by other governmental officials or institutions that the
Constitution does not clearly prohibit”.185 Others understand judicial activism "as any
serious judicial error".186 Further authors rely on understanding judicial activism as a
deviation “from cultural norms of judicial role”, or as “any controversial or undesirable
result”.187

All these definitions have two things in common. First, they face the barrier highlighted
by Garoupa: there is no “consensus on how courts should deal with textual vagueness and
indeterminacy"188, two legislative tools used abundantly in any Constitution and above
all in EU law. As I have shown in Chapter 2, the textual ambiguity that can be found in
the Treaties and EU secondary legislation provide serious interpretive challenges and
significant levels of uncertainty, which call for an immediate rejection of these
viewpoints. Otherwise, as Garoupa concludes, “activism simply becomes synonymous to
judicial review”.189

Secondly, all these conceptions of judicial activism advocate a judiciary more tied to the
letter of the law. In other words, they support a strategy of judicial restraint. In this sense,
it is pivotal to underline that a strategy of judicial self-restraint may be more pernicious
than an activist or dynamic attitude. According to Gonçalo de Almeida Ribeiro, judicial
restraint is a "survival tactic" of constitutional legalism that aims to circumvent the
paradox that the judiciary has the authority to nullify rules coming from institutions with
direct democratic legitimacy even though judges are not directly elected by citizens190. It
should be noted that, as I displayed in Chapter 2, an attitude of judicial restraint in the
case of the CJEU would undermine the Court´s constitutional duties, weakening the
framework established by Article 267 TFEU, which ensures the coherence and uniformity
of European law; consequently, these definitions must be rejected.

185
Lino A Graglia, ‘It's Not Constitutionalism, It's Judicial Activism’ 19 Harv JL & Pub Pol'y 293, 296.
186
Green (n 150) 1201.
187
Ibid, 1217.
188
Garoupa (n 151) 1093.
189
Ibid.
190
Gonçalo Almeida Ribeiro, ‘O Paradoxo Democrático na Constituição Portuguesa de 1976 (The
Democratic Paradox in the Portuguese Constitution of 1976)’ Estudos em Homenagem ao Conselheiro Rui
Moura Ramos, Coimbra: Almedina, 147.

32
Another attempt to define the concept was made by Keenan Kmiec by providing five
distinct definitions of judicial activism. According to the first definition, the judges are
activists when they strike “down arguably constitutional actions of the other
branches”.191In response to this definition, Anthony Arnull argues that this description
does not fit in the Court of Justice actions as a result of the protection given by the CJEU
to EU institutions “from challenges to the validity of legislative acts”.192 In fact, the Court
has been criticised for doing exactly the opposite of that, i.e., for failing to limit the EU's
sphere of competencies. An illustration of this is the CJEU's latitude in the broad use of
Article 114 TFEU as a legal basis, giving the European legislative power in circumstances
where its competence is questionable. 193 As Arnull states, "the case law of the ECJ in
this context exemplifies not activism but restraint".194

The second definition offered by Kmiec can be interpreted as a failure to follow the
precedent (“Ignoring Precedent”).195 Again, this characterization does not suit completely
the context of the CJEU. Contrary to what takes place in the US and UK the CJEU does
not follow the principle of stare decisis despite normally following its own decisions. As
Takis Tridimas underlines the CJEU “has in fact expressly overruled precedent only in
very few cases”.196 In this sense, “the value of precedent has been accepted by the political
constituencies to such an extent that it can now be said to have a quasi-normative
character”.197As Gunnar Beck explains, precedent in Union law functions as a "rebuttable
presumption in favour of a particular construction of certain written provisions".198 In this
sense, I consider that in the case of CJEU, a definition a contrario makes more sense.
That is, in my perspective, the CJEU can be considered activist by creating precedents
but not by breaking them as Kmiec considers. Taking an idea underlined by Alter, "the
ECJ expanded its jurisdictional authority by establishing legal principles but not applying
the principles to the cases at hand". 199

191
Kmiec (n 25), 1463.
192
Arnull, ‘Judicial activism and the European Court of Justice: how should academics respond?’ (n 26),
216.
193
Stephen Weatherill, ‘The Limits of Legislative Harmonization Ten Years after Tobacco Advertising:
How the Court's Case Law has become a “Drafting Guide”’ 12 German Law Journal 827.
194
Arnull, ‘Judicial activism and the European Court of Justice: how should academics respond?’ (n 26).
195
Kmiec (n 25), 1466.
196
Takis Tridimas, ‘Precedent and the Court of Justice’ in Philosophical foundations of European Union
law (Oxford University Press 2013) 316.
197
Ibid 329.
198
Beck (n 92) 180.
199
Alter (n 132), 131.

33
The third definition given by Kmiec consists of what he calls "judicial legislation"200. If
we adopt this definition to the context of the CJEU, activist judges overstep their power
by taking political decisions concerning the direction of the European integration project.
To put it differently, according to this definition, activist judges create legislation from
the benches of the court, violating the balance of power between the legislative and the
judicial power. This criticism is quite common in the context of CJEU. To illustrate,
Roman Herzog and Lüder Gerken criticised the CJEU ruling in Mangold, claiming that
the CJEU acted as the legislator.201 Another example is the above-mentioned Sturgeon
judgment, where the CJEU has been criticised for engaging "in judicial legislation and,
allegedly, unwarranted judicial activism”.202

Another definition given by Kmiec corresponds to the departure from "accepted

interpretation canons". This definition has two problems. First, it presupposes that this
acceptance of the cannons exists; secondly, it presupposes the existence of a hierarchy
between elements of interpretation of the law, something that as I have shown in Chapter
2 does not exist in the EU law and so it must be rejected.

Finally, according to the last definition given by Kmiec, a decision is "activist" if two
cumulative criteria are met: Firstly, the judge must have “an ulterior motive for making
the ruling;” and, secondly, the decision must depart “from some baseline of
correctness”.203 In this sense, the level of activism is dependent on “how far it deviates
from this baseline”204. Concerning this second point, accusations of judicial activism “can
always be rebutted by choosing a different baseline from that of the accuser", as Arnull
underlines.205 Regarding the first element, since every judge has interests and motivations,
this definition has the unquestionable advantage of highlighting the inherent subjectivity
of any judicial decision. In the case of the CJEU, former Judge Pescatore once stated that
judges have "une certaine idee de I’Europe" which may support the validity of this
statement. 206Nevertheless, despite it is conceivable that the CJEU may have had judges

200
Kmiec (n 25) 1471.
201
Roman Herzog and Lüder Gerken, ‘The Spirit of the Time: Revise the European Constitution to Protect
National Parliamentary Democracy’ 3 European Constitutional Law Review 209.
202
Garben (n 164) 18.
203
Kmiec (n 25) 1441.
204
Ibid.
205
Arnull, ‘Judicial activism and the European Court of Justice: how should academics respond?’ (n 26),
230.
206
Pierre Pescatore, ‘The Doctrine of" Direct Effect": An Infant Disease of Community Law’ European
Law Review 135, 137.

34
who had a "further motive for making the ruling", this does not demonstrate that the Court
was committed to these motivations, particularly over such a prolonged period of time,
as is the case of CJEU. As Franklin Dehousse points out, while some judges are more
active than others, this does not imply that the entire Court is activist.207 Therefore, for
the following three reasons, such a definition is inappropriate for a court with the
characteristics of the CJEU: First, since it lacks initiative power208, second, it must make
decisions in accordance with the collegiality principle209, and third, because of the
diversity of the body of judges. This notion of the CJEU as an agenda-setter is even more
absurd given the volume of cases filed to the two courts annually and the stringent
selection procedure established by Article 253 TFEU. As a result of this, it is practically
impossible that such a massive body of judges, characterised by significant legal-cultural
differences, could have imposed over the past 70 years an agenda of its own.

5. Conclusion:

It is clear from the literature that judicial activism is frequently linked to improper action
on the part of the judiciary. As Bingham claims, "judicial activism taken to extremes can
spell the death of the rule of law"210. In the same vein, Hatzopoulos associates activism
with a "misuse of powers" by judicial power. 211 In this regard, I argue that not all activist
behaviours are necessarily negative or essentially a “misuse of power” using
Hatzopoulos's expression. In this sense, I have framed three definitions of activism to the
case law of the CJEU. The first corresponds to the concept of judicial law-making; the
second to the creation of precedents with a quasi-binding character and, finally, the
definition given by Conway of creative interpretation.

None of these behaviours, in my opinion, qualify as ultra-vires actions. On the contrary,

they fall within the margin of interpretation given to the CJEU. As Valerie Dhooghe,
Rosanne Franken, and Tim Opgenhaffen explain, the Court of Justice’s “judicial activism

207
Dehousse (n 143).
208
See: Šadl Urška, & Wallerman, A. (2019). ‘the referring court asks, in essence’: is reformulation of
preliminary questions by the court of justice a decision writing fixture or a decision-making approach?
European Law Journal, 25(4), 416–433.
209
Dehousse (n 143).
210
Bingham (n 125).
211
Vassilis Hatzopoulos, ‘Actively talking to each other: the Court and the political institutions’ in Judicial
activism at the European Court of Justice (Edward Elgar Publishing 2013), 109.

35
is a natural feature in a dialogical context” between the CJEU, the national courts, and
the European Union.212

Due to the negativity surrounding the term judicial activism, I suggest this activist
behaviour of the CJEU should be categorised using a different name. There are several
choices to consider in this regard, ranging from Iyiola Solanke's claim that the CJEU
and its judges should be described as "entrepreneurial"213 to a description of the CJEU
as an active or dynamic court. 214 Making this distinction, in my opinion, is more than
just a formality. Creating this distinction will make it easier to differentiate between
actions that naturally flow from the CJEU's role and those that are blatantly activist and
detrimental to the rule of law, such as judicial treaty revision or judicial campaigns
driven by ideological or politically biased interests.215 In the next chapter, I will show
how this active stance can lead to the strengthening of the rule of law and not to its
death.

212
Valerie Dhooghe, Rosanne Franken and Tim Opgenhaffen, ‘Judicial Activism at the European Court of
Justice: A Natural Feature in a Dialogical Context’ 20 Tilburg Law Review 122, 141. 141.
213
Iyiola Solanke, ‘‘Stop the ECJ’?: An Empirical Analysis of Activism at the Court’ 17 European Law
Journal 764, 784.
214
In the last chapter, I will follow this last description.
215
A good example of this type of Judicial Activism can be found in Spain. See: Joaquín Urías Martínez,
‘Spain has a Problem with its Judiciary’.

36
 CHAPTER 4

Judicial Dynamism to the rescue of the Rule of Law in the EU

1. Introduction

If in the 1960s the CJEU compensated for the political stagnation verified at that time
with its constitutionalization case law216, more than 50 years later in a scenario also
overshadowed by a mix of inertia and ineffectiveness, the Court of Justice through its
case law has taken important steps in the defence of the European values in the context
of the so-called “rule of law crisis”. 217

In this last chapter, I will explain how the Court has been important in the defence of the
rule of law in the EU by adopting an active interpretation stance. To this end, the focus
of this chapter will be the Portuguese Judges case, where the Court established a "general
obligation for Member States to guarantee and respect the Independence” of their national
courts and tribunals218. This innovative interpretation of Article 19 TEU has created new
pro-integration precedents that widened the scope of EU law, empowering the CJEU to
interfere with greater acuity in issues relating to the independence of the judiciary of the
Member States.219

I will begin by briefly examining the response of the different EU institutions to the crisis
of the rule of law in Hungary and Poland, appreciating the consequences of this erosion
for the Union. I will then summarise the Portuguese Judges Ruling, identifying the
"active" or "activist" elements of the Court in this case. Finally, I will analyse how this
ambitious stance defended judicial independence and the values set out in Article 2 TEU,
protecting in this way the rule of law in the EU.

216
Van Gend en Loos and Costa v Enel (n 5).
217
Zoltán Fleck, Nóra Chronowski and Petra Bárd, ‘The Crisis of the Rule of Law, Democracy and
Fundamental Rights in Hungary’ 2022 MTA LAW WORKING PAPERS 1.
218
Laurent Pech and Sébastien Platon, ‘Judicial independence under threat: the Court of Justice to the rescue
in the ASJP case’ 55 Common Market L Rev 1827, 1847.
219
Matteo Bonelli and Monica Claes, ‘Judicial serendipity: how Portuguese judges came to the rescue of
the Polish judiciary: ECJ 27 February 2018, Case C-64/16, Associação Sindical dos Juízes Portugueses’ 14
European Constitutional Law Review 622.

37
 2. The Rule of Law Backsliding – A brief rewind

The problems created by the rule of law backsliding in Hungary and Poland over the past
decade opened unprecedented challenges to the EU over the past decade.220

In this sense, due to the degree of interdependence among Member States, it is recognized
that it is impossible to limit the effects of the rule of law deterioration just to the
backsliding states221. The threat posed by the judiciary capture by an undemocratic ruling
party extends beyond the risk to the effective implementation of EU law in that specific
Member State, having effects on the entire Union in several areas: Firstly, these threats
call into question the principle of mutual trust, thereby jeopardizing the uniformity and
effectiveness of EU law222, namely by threatening the efficiency of the European Arrest
Warrant's framework.223 Second, by hindering vertical cooperation between the Member
States and the EU, the rule of Law backsliding also affects the proficiency of Article 267
TFEU, a mechanism based on cooperation between the national courts and the
CJEU. Thirdly, the backsliding states challenge the effectiveness and credibility of the
EU decision-making process, affecting in this way the confidence in the EU institutions
both domestically, among its citizens, and externally, in the international community.224

In light of these circumstances and taking into account the increasing problems in Poland
and Hungary, the European Commission has tried to present the rule of law as a well-
defined principle whose core meaning “is the same in all Member States”.225 In this sense,
until 2018, the year of the Portuguese Judges ruling, several initiatives were developed to
supervise and dissuade the problematic Member States, namely the creation of the so-

220
Pech Laurent and Kim Lane Scheppele, ‘Illiberalism within: rule of law backsliding in the EU’ 19
Cambridge Yearbook of European Legal Studies 3.
221
Laurent Pech, ‘The rule of law as a well-established and well-defined principle of EU law’ 14 Hague
Journal on the Rule of Law 107.
222
Ibid.
223
Joined Cases C-404/15 and C-659/15 PPU Pál Aranyosi and Robert Căldăraru v
Generalstaatsanwaltschaft Bremen. ECLI:EU:C:2016:198.
224
Petra Bárd, ‘In courts we trust, or should we? Judicial independence as the precondition for the
effectiveness of EU law’ 27 European Law Journal 185.
225
European Commission, Commission Communication, Strengthening the rule of law within the Union. A
blueprint for action (2019), 1.

38
called Justice Scoreboard226, the development of the Rule of Law Tool Box227, or the Rule
of Law Mechanism.228

Nevertheless, the Polish judicial reform and the Commission’s Rule of Law Reports229,
prove that the defence of the rule of law in both countries has not been effective. The
limitations of Article 7 TEU, the alleged "nuclear option" constructed to protect the values
mentioned in Article 2 TEU, were also clear during this period.230 The strict procedural
requirements of Article 7(2) TEU, which stipulate that any sanction must be the result of
a unanimous vote in the European Council (excluding the country involved in the
proceedings), make the implementation of this mechanism impossible to achieve231. As a
result, this mechanism was blocked by Hungary and Poland in the Council, demonstrating
the inability of Article 7 TEU to solve this crisis.

It was in this context dominated by political inertia and by the ineffectiveness of the
European Institutions, that the Portuguese Judges case emerged. This decision undeniably
marked a new era in defence of the rule of law in recent years, leading Laurent Pech and
Dimitry Kochenov to consider that this "judgment can be viewed as belonging to the
Pantheon of ECJ rulings, on par with Van Gend en Loos and Costa Enel”.232

3. The Background to the Preliminary Ruling: An austerity case?

It is doubtful (perhaps impossible) to think that the judge on the Portuguese Supreme
Administrative Court (STA) who referred the preliminary question to the CJEU knew
how significant this case would be. After all, the scope of this case was limited. It resulted
from Portugal's adoption of austerity measures in the context of the Memorandum of
Understanding agreed in May 2011 with the European Commission. The Memorandum
included the specific economic requirements for Portugal to receive financial assistance
from the EU under the European Financial Stabilization Mechanism (EFSM). In this

226
Jakab, A., & Kirchmair, L. (2021). How to develop the EU justice scoreboard into a rule of law index:
using an existing tool in the EU rule of law crisis in a more efficient way. German Law Journal, 22(6), 936-
955.
227
Laurent Pech, ‘The rule of law in the EU: The evolution of the Treaty framework and rule of law toolbox’.
228
Molly O'Neal, ‘The European Commission's enhanced Rule of Law mechanism’.
229
Laurent Pech, ‘1095 days later: from bad to worse regarding the rule of law in Poland (Part I)’
Verfassungsblog: On Matters Constitutional.
230
Dimitry Kochenov, ‘Article 7: A Commentary on a Much Talked-About ‘Dead’Provision’ in Defending
Checks and Balances in EU Member States (Springer, Berlin, Heidelberg 2021).
231
Dimitry Kochenov, ‘Busting the myths nuclear: A commentary on Article 7 TEU’.
232
Laurent Pech and Dimitry Kochenov, ‘Respect for the rule of law in the case law of the European Court
of justice: A casebook overview of key judgments since the Portuguese judges case’ 3 SIEPS, Stockholm,
12.

39
context, Portugal adopted Law 75/2014 which reduced the remuneration for persons
working in the Portuguese public administration, including national judges.

Due to this reduction, the Associação Sindical de Juízes Portugueses (a Portuguese

judges' union), acting on behalf of the members of the Tribunal de Contas (Court of
Auditors), filed a special administrative action with the STA, alleging a violation of the
“principle of judicial independence" codified both in the Portuguese Constitution and in
the second subparagraph of Article 19(1) TEU.

4. The Ruling: The Portuguese Judges Case

The CJEU’s decision and AG Saugmandsgaard's Opinion reach the same conclusion
regarding the dispute's main contention, the salary reductions in the judiciary, and its
relationship with the principle of independence of the judiciary. In this regard, the CJEU
and the AG concur that general salary reductions in the public sector, such as those that
took place after Law 75/2014 came into effect do not breach the independence of the
judiciary (Article 19 TEU and Article 47 of the Charter). Nevertheless, the justifications
for sustaining the decision could not be more different. The CJEU's rationale was solely
based on Article 19 TEU, whilst the AG invoked Article 47 of the Charter. The AG
asserted that the Charter was applicable because Law 75/2014 was an implementation of
EU law and then continued to examine whether the wage reductions of the judiciary
conformed with the Article 47 of the Charter, which establishes the fundamental right to
a hearing before an independent tribunal.233

The Court's reasoning was different and opted for an interpretation based on Article 19
(1) TEU. The CJEU after restarting the principles outlined in Article 2 TEU234,
emphasised that the EU is a "union based on the rule of law”235, and highlighted that
Article 19 TEU "gives concrete expression to the value of the rule of law stated in Article
2 TFEU"236. In this sense, the CJEU continued by stressing that national courts and
tribunals are also responsible for "ensuring judicial review in the EU legal order".237

233
Case C-64/16. Associação Sindical dos Juízes Portugueses v Tribunal de Contas. ECLI:EU:C:2018:117,
Opinion of AG Saugmandsgaard Øe.
234
Associação Sindical dos Juízes Portugueses v Tribunal de Contas (n 24), para 29.
(see, to that effect, Opinion 2/13 Accession of the European Union to the ECHR EU:C:2014:2454, para
168).
235
Associação Sindical dos Juízes Portugueses v Tribunal de Contas (n 24), para 31. See also Case C‑583/11
P. Inuit Tapiriit Kanatami and Others v European Parliament and Council of the European Union
ECLI:EU:C:2013:625.
236
Associação Sindical dos Juízes Portugueses v Tribunal de Contas, para 32.
237
Ibid.

40
Using the third subparagraph of Article 19(2) TEU, the CJEU clarifies that the "guarantee
of Independence (...) is required not only at the EU level as regards the Judges of the
Union and the Advocates-General"238, but also additionally at the "level of the Member
States as regards national Courts”.239

The CJEU further clarified the meaning of the term "judicial independence," stating that
this notion refers to the exercise of judicial powers "wholly autonomously, without being
subject to any hierarchical constraint or subordinate to any other body”.240 The CJEU
goes further and adds that judicial independence presumes the protection "against external
interventions" that can affect the judgments and independence of court members.241

In this way, the Court of Justice established that all Member States must ensure that the
bodies classified as "courts or tribunals" within the meaning of EU law meet the
requirements of effective judicial protection. That is, the independence of the judiciary is
a condition of sine qua non for effective judicial protection and for ensuring uniformity
of the application of EU law.242 This condition is based on the case law of the CJEU, with
the Court stressing the intrinsic relationship between the independence of the judiciary
and the need for a dialogue between national judges and the Court of Justice under Article
267 TFEU.243

In this regard, the CJEU establishes a link between the necessity to "ensure effective legal
protection in the fields covered by Union law" and the requirement to sustain an
independent judiciary by invoking Article 19 (1), second paragraph. In other words,
considering this interpretation, it is not necessary for the Member State court to actually
decide an issue of EU law in a specific case. The possibility of handling such issues is
sufficient to apply Article 19(1) second paragraph.

Using these standards as a basis, the Court determined that “the second subparagraph of
Article 19(1) TEU must be interpreted as meaning that the principle of judicial
independence does not preclude general salary-reduction measures, such as those at issue
in the main proceedings”. 244

238
Ibid, para 42.
239
Ibid.
240
Ibid, para 43.
241
Ibid, para 44.
242
Ibid, para 43.
243
Ibid, para 44.
244
Ibid, para 53.

41
Nevertheless, this outcome is not particularly noteworthy. What is important is to look at
the Court's reasoning and how the CJEU's interpretation can be viewed as ambitious or
even activist.

5. An activist interpretation of Article 19 TEU?

In this case, the CJEU transformed the rule of law into a "legally enforceable standard to
be used against national authorities to challenge targeted attacks on national
judiciaries”.245 This interpretation, as Laurent Pech and Sebastian Platon mention, is the
result of a "combined reading of Article 2 TEU, Article 4(3) TEU (principle of sincere
cooperation) and Article 19(1) TEU (principle of effective judicial protection)”.246

From the outset, this interpretation stands out for its creativity because there is no express
indication in the Treaty's text which supports this approach. In this sense, the CJEU
through a teleological interpretation of Article 19 (1) TEU created a precedent extending
the jurisdictional reach of the CJEU.

Without surprise, the Court was accused of displaying “an active, even political attitude"
toward the rule of law crisis with this ruling. 247 Claims of "over-constitutionalization" by
the CJEU are frequently in decisions such as this, where the Court of Justice expands its
jurisdiction using a teleological interpretation-based strategy.248 In this sense, Bonelli and
Claes considered that "the Court used the Portuguese reference as an opportunity” to enter
the EU Rule of Law crisis.249 In this regard, it is important to highlight that the Court has
previously denied the admissibility of other austerity cases.250 Because of this, the same
authors claim that the CJEU "entirely downplayed" the specific context of austerity
measures by shifting the case's emphasis "from the economic crisis to the rule of law
crisis”.251 In fact, neither the Member States nor the Commission had expressed any
interest in the case, something that was illustrated by the fact that only Portugal and the
Commission decided to intervene in this preliminary ruling. In this sense, Ovádek
contends that it was the absence of "Member State opposition" that made the case's

245
(n 218), 1836.
246
Ibid, 1827.
247
Bonelli and Claes (n 219), 641.
248
Dieter Grimm, The constitution of European democracy (Oxford University Press 2017); and Pech and
Platon (n 218), 1841.
249
Bonelli and Claes (n 219).
250
Case C-128/12, Sindicato dos Bancários do Norte and Others v BPN – Banco Português de Negócios
SA ECLI:EU:C:2013:149;
251
Bonelli and Claes (n 219), 263.

42
resolution possible, questioning the Member States' willingness to accept the Court's
activism rather than face the Polish and Hungarian governments.252 In this regard, Bonneli
and Claes contend that the CJEU's interpretation is "complex and not entirely
convincing," with Article 19 TEU serving as both the basis for the CJEU's affirmation of
its jurisdiction and as a "source for the principle of judicial independence”.253

6. Response to this criticism: a creative but valid interpretation of Article 19

TEU

Regarding this criticism, I consider that although the creativity and dynamism of the
CJEU in this decision are undeniable, the legal reasoning of the Court of Justice is well
constructed. In this sense, after connecting Article 19 TEU with the "value of the rule of
law stated in Article 2 TFEU”254, the Court of Justice expanded the scope of Article 19
(1) TEU by highlighting how the system established by Article 267 TFEU depends on the
independence of the national court that submits a question to the CJEU255. In this way,
the judges in the Palais de la Cour de Justice cleverly asserted that the independence of
courts and tribunals is "essential to the proper working" of the European judicial
cooperation system. This idea is reinforced by the invocation of the principle of sincere
cooperation, stressing that the protection of judicial independence is essential to preserve
the cooperation between national courts and the Court of Justice, because only
independent judges can be tasked with the lawful application of EU law256. The CJEU
amplified the scope of Article 19 (1) through a functional interpretation, taking advantage
of the provision's ambiguity and vagueness, two features that, as I demonstrated in
Chapter 2, encourage a teleological reading.

In this sense, this functional interpretation of Article 19(1) TEU has a clear aim of
safeguarding the effectiveness of the EU system by setting a precedent with a quasi-
binding character257, that enables the CJEU to monitor legislative reforms of the Member
258
States that may infringe the values enshrined in Article 2 TEU. In this regard, it is

252
Michal Ovádek, ‘The making of landmark rulings in the European Union: the case of national judicial
independence’ Journal of European Public Policy 1, 20.
253
Bonelli and Claes (n 219).
254
Associação Sindical dos Juízes Portugueses v Tribunal de Contas (n 24), para 32.
255
Case C-54/96 Dorsch Consult ECLI:EU:C:1997:413, paras 34–36.
256
Associação Sindical dos Juízes Portugueses v Tribunal de Contas, (n 24), para 34.
257
Aiste Mickonyte, ‘Effects of the rule-of-law crisis in the EU: towards centralization of the EU system of
judicial protection’ 79 ZaöRV 815.
258
Maciej Taborowski, ‘CJEU Opens the Door for the Commission to Reconsider Charges against Poland’
Verfassungsblog: On Matters Constitutional.

43
important to stress that no court decision is made in a vacuum. Therefore, it is impossible
to separate this ruling from the institutional impasse caused by the inefficiency of Article
7 TEU and by the successive challenges created by the backsliding states to the European
legal order. 259 In this way, this interpretation of Article 19 TEU represents a "functional
necessity" for the EU justified by the need to protect the EU legal order from the threats
created by the rule of law backsliding. This need is felt in several areas260, namely in the
decision-making process, where the affected Member States participate as members of
the Council261. This necessity is also explained by other reasons: firstly, by the need to
ensure vertical cooperation between the Member States and the EU, particularly regarding
the preliminary ruling procedure, and secondly, because of the importance of horizontal
cooperation between the Member States.

In this sense, the Court's interpretation in this case, although ambitious, respects the limits
that I addressed in Chapter 2. In this sense, it is important to highlight three points:

Firstly, as I have shown in Chapter 2, teleological interpretation can be more faithful to a

democratic outcome than a less dynamic interpretation "since it prevents textual
manipulation of the legal rules” which can produce effects that "were neither wished for
nor debated in the political process".262 Applying this reasoning to this case, it is clear
that the CJEU intended to uphold these values and principles—the respect for the rule of
law and the independence of the judiciary—that were expressed during the political
process and later integrated into the Treaties. Secondly, although this interpretation falls
under Conway's definition of a "creative interpretation”263, it is within the scope of
interpretations allowed by the text of Article 19 (1) TEU and therefore does not constitute
a counter-legem intervention on the part of the CJEU. In third place, this interpretation
of CJEU respects the principles of inter-institutional balance and mutual collaboration
outlined in Article 13 (2) TFEU. In this respect, this decision does not restructure national
judicial systems because that power still rests solely with the Member States.264
Therefore, the CJEU is solely empowered to determine whether the courts of each
Member State "comply with the concept of judicial independence" as potential enforcers

259
Inês Pereira de Sousa, ‘The Rule of Law Crisis in the European Union: From Portugal to Poland (and
Beyond)’ 114 Teisė 144.
260
Pech and Platon (n 218).
261
Ibid.
262
Poiares Pessoa Maduro (n 32).
263
Conway (n 85).
264
Koen Lenaerts, ‘New Horizons for the Rule of Law within the EU’ 21 German Law Journal 29

44
of EU Law265. Finally, as I explained in chapter 2, “the legitimacy of the EU legal order
requires the CJEU to pay due respect to the common national legal traditions”266, and that
is exactly what the Court of Justice did in this case by strengthening the rule of law and
the principle of judicial independence, a principle that "stems from the constitutional
traditions" of the Member States267, being one of the core elements of the definition of
the rule of law.268

Therefore, the operationalization of Article 19 TEU should not be viewed as an example

of improper behaviour on the part of the CJEU. This interpretation is a reaction of the
Court of Justice to the identified threats to the EU legal system posed by the erosion of
the Rule of Law in Poland and Hungary, having ensured a solidification of the rule of law
by implementing the principle of legal independence.

7. The Consequences of the Portuguese Judges’ Ruling

In the last four years, several rulings have developed the obligation for Members States
to ensure judicial independence under Article 19 (1) TEU established in the Portuguese
Judges ruling. This development was directly achieved through infringement actions and
indirectly under the Preliminary ruling system.

In this regard, the Commission's position regarding the launch of infringement actions
under Article 258 TFEU changed by the clarification of the substance of the obligation
set forth in Article 19 (1) TEU.269 In this regard, the Commission has been highly active
in this area, launching several infringements actions during this period against the Polish
State270. Most notably, in the case Commission v. Poland (The Independence of Supreme
Court), the Court of Justice ordered a complete restoration of the status quo before the
reforms implemented by the Polish Government.271

Regarding the application of Article 267 TFEU, the new interpretation established in the
Portuguese Judges ruling permits any private party, including any national judge, to

265
Ibid
266
Poiares Pessoa Maduro (n 38).
267
Lenaerts (n 264).
268
European Commission, 2020 Rule of Law Report. The rule of law situation in the European Union, COM
(2020) 580.
269
Pech and Kochenov (n 232).
270
Case C-192/18. Commission v. Poland (Independence of Ordinary Courts) ECLI:EU:C:2019:924 and
Case C-619/18. Commission v. Poland (Independence of the Supreme Court) EU: C:2018:1021
Case C-791/19. Commission v. Poland (Disciplinary regime for judges) ECLI:EU:C:2021:596
271
Commission v. Poland (Independence of the Supreme Court) (n 271).

45
directly contest any national actions that pose a threat to the independence of any court
or tribunal that applies or interprets EU law. This power has been used by the national
judges, allowing a clarification of the conclusions of the Portuguese Judge’s case. This
is not the space for a thorough analysis of all decisions, but three cases should be
highlighted. In A.K. (Independence of the Disciplinary Chamber of the Supreme
Court)272, the CJEU determined that national judges not only had the power to refuse
jurisdiction to courts that did not uphold the requirements of judicial independence but
also they have the authority to disapply national legislation that granted jurisdiction to
such courts.273 A few months later, the Court of Justice in Miasto Łowicz reaffirmed the
broad application of Article 19 TUE but restricted the procedural admissibility of
preliminary decision requests, demonstrating the CJEU’s caution in this matter.274 In the
Republikka case275, the CJEU strengthened the obligation on Member States to uphold
the independence of the judiciary as a component of the rule of law value mentioned in
Article 2 TEU by establishing the non-regression principle276. This principle prohibits
any national legislation that undermines the "protection of the rule of law, in particular,
the guarantees of judicial independence".277 Therefore, the principle of non-regression in
this context could be understood as the obligation to not drop below the TEU's Article 49
benchmark after EU membership.278

In this sense, these rulings show that the precedent in the case of the Portuguese Judges
served as the starting point for subsequent decisions that placed the CJEU at the centre of
a "truly European system of checks and balances" strengthening in this way the rule of
law and the judicial independence in the European Union.279

272
Joined Cases C-585/18, C-624/18 and C-625/18. A.K. (Independence of the Disciplinary Chamber of the
Supreme Court) EU: C:2019:982.
273
Filipe Marques, ‘Rule of law, national judges and the Court of Justice of the European Union: Let's keep
it juridical’ European Law Journal.
274
Joined Cases C-558/18 and C-563/18. Miasto Łowicz and Prokurator Generalny zastępowany przez
Prokuraturę Krajową, formerly Prokuratura Okręgowa w Płocku v Skarb Państwa – Wojewoda Łódzki
and Others. ECLI:EU:C:2020:234
275
Case C-896/19. Repubblika v Il-Prim Ministru EU:C: 2021:311.
276
Pech and Kochenov (n 232).
277
Repubblika v Il-Prim Ministru, para 65.
278
Mathieu Leloup, Dimitry Kochenov and Aleksejs Dimitrovs, ‘Non-Regression: Opening the Door to
Solving the ‘Copenhagen Dilemma’? All the Eyes on Case C-896/19 Repubblika v Il-Prim Ministru’
279
Marques (n 274) 237.

46
 8. Conclusion:

In this chapter, I showed how, in the context of the crisis of the rule of law within the EU
framework, the CJEU intervened to safeguard the legality and effectiveness of European
law by adopting in the Portuguese Judges case a clever interpretation of Article 19 (1)
TEU.

In this way, the Court of Justice by expanding the scope of EU law opened the door to
preliminary rulings based on this new interpretation and encouraged the Commission to
start infringement proceedings based on Article 19 (1) TEU.

Due to the creativity with which the CJEU connected several Treaty clauses, some
General principles, and its case law, setting a precedent that resulted in the expansion of
the Court of Justice's authority, this dynamism can be seen as an act of judicial activism
on the part of the CJEU. Nevertheless, this interpretation cannot be considered an act of
improper judicial behaviour by the Court of Justice.

It is evident that this activism—or, as I prefer to refer to it, dynamism— constituted a

means to defend the legality of the EU order, assisting in the protection of the rule of law
within the EU.

In conclusion, this interpretation demonstrates once more that the Court of Justice is much
more than a dispute settler by providing through the preliminary ruling system a "thicker
normative understanding of the law

47
 CHAPTER 5:

Conclusion:

1. Final Remarks

Throughout this thesis, I have demonstrated that the notion of judicial activism is
misunderstood. To this end, I started at the source of the problem, which is formalism's
legacy and the strict adherence to textualism. In this sense, I have tried to demonstrate
that the CJEU operates in a context dominated by pluralism, vagueness, and uncertainty,

In this way, decade after decade, the CJEU has helped the EU develop the European
Integration project by cementing the concepts and principles expressed in the Treaties
and secondary EU law through its jurisprudence, providing answers to the myriad of
problems that the Union faces. In this sense, the CJEU has actively contributed to the
interpretation of EU law, closing gaps in the law, and offering clarification to areas where
EU legislation is silent. This approach, which is based on well-established components
of legal interpretation with a preponderance of teleological elements, is the product of the
characteristics of the EU's "new legal”, where a static reading of the law would result in
situations of denial of justice.

To ensure that EU law continues to be effective in attaining Union objectives, the CJEU
has taken (and continues to play) a proactive role in interpreting EU law. An active CJEU
that interprets EU legislation in accordance with the objectives and priorities of the Union
is necessary for the EU as an institution that is constantly evolving and adapting to new
circumstances.

The Portuguese Judges case is a prime illustration of this, in which the CJEU, by cleverly
combining Article 2 TEU, Article 4(3) TEU, and Article 19(1) TEU, strengthened the
notion of the rule of law in the EU, safeguarding the effectiveness and legality of EU law.
Given the context created by the rule of law crisis, the CJEU showed an active stance,
expanding the scope of Article 19 (1) TEU, giving new possibilities to the European
Commission and to the national courts to tackle the severe degradation of the rule of law
in Poland, but also in other Member States. This expansion of the scope of EU law based
on a teleological interpretation of the above-mentioned provisions created a precedent,

48
which has been used successfully both in infringement actions under Article 258 TFEU
and under Article 267 TFEU, showing the strength of this new interpretation of the CJEU.

To conclude, given its powers and the context in which it operates, it seems obvious that
the CJEU could never serve as a simple dispute settler or a mouthpiece of the law. In this
way, I consider that during its 70-year history, the CJEU has generally taken an activist
stance and that this approach is appropriate in the context of the European Union.

Recalling the words of Thomas Bingham: "Judicial activism taken to extremes can spell
the death of the rule of law". This is true. However, the extent that the CJEU has been an
activist, or active as I prefer to define it, fits within the legal and institutional boundaries
that delimit the CJEU’s functions.

The Court of Justice's judicial activism did not reach "extremes," to borrow Bingham's
words once again, that would have led to death or a weakening of the rule of law. Quite
the contrary, the recent case law of the CJEU on the rule of law demonstrates that a
dynamic/activist interpretation of EU law can be a successful tool to defend legality, the
rule of law, and the effectiveness of EU law. This is what the CJEU accomplished in the
Portuguese Judges case, illustrating how judicial activism may be a useful tool for
preserving the rule of law and legality in the EU.

49
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Conferences:
• High-Level Workshop ‘Judging the Judges in a transformed Europe’ (3–4
November 2011)

Magazines:
• SCHLESINGER JR A, The Supreme Court: 1947, Fortune, n. 35 (jan 1947)

British Parliament:

• 46 PARL. DEB., H.L. (5th ser.) 560 (UK) (1993)

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