|Résumé :||Judicial activism implies a hidden politicization of the Court. The legal arguments and the methods used by the Court of Justice of the European Union (CJEU) might seem coherent. However, an inquiry into judicial activism means looking beyond the legal reasoning of the Court and trying to “connect the dots” of an alternative narrative that can explain the Court’s long-term approach to certain issues. In the case of judicial activism of the CJEU in the case-law concerning public international law, the veil for the politicization of the Court is provided by the pluralist architecture of global law. The heterarchical structure of relations among legal orders in the international arena activates the CJEU as an actor of global governance. Simultaneously, it results in the Court adopting a rather internal and defensive approach, undermining legal security.
Judicial activism of the CJEU finds its particular expressions in the case-law concerning public international law. The pro-integrationist tendency of the CJEU often raised in the literature concerning the Court’s role in the process of EU integration, translates into a substantial and an institutional dimension of judicial activism. The substantial articulation of judicial activism in the case-law concerning international law is the Court’s emphasis on the autonomy of the EU legal order. This internal perspective is adopted not only for virtuous reasons, but also in defense of definitely not universal European interests. The institutional dimension refers to the Court’s position within the EU structure of governance. The case-law concerning international law is marked by a close alignment with the European Commission and the integration of the EU goals in external relations. Moreover, the pluralist veil can cover the extent to which the Court’s decisions concerning international law are influenced by considerations completely internal to the EU.
In my analysis I proceed in three steps that are reflected in three chapters of the thesis. There is no clear and prevalent definition of judicial activism, but instead rather multiple possibilities of approaching the concept. While the general intend of the research project is to critically reflect on the concept of judicial activism of the highest courts within a legal order, the particular focus will be on the CJEU dealing with international law. I proceed in three steps. First, I assess different understandings of the role of the judge and the concept of judicial activism in legal literature in view of ascertaining the relevance of the debate and distilling some general components of a possible definition. Secondly, I identify the factors particular for the position of the CJEU within the EU legal order and with regard to international law. The particular characteristics of the CJEU result in a limited applicability of the general definitions of judicial activism. Finally, I analyze the case-law in view of identifying examples as well as counter-examples of the particular symptoms/attributes. Because judicial activism broadens the scope of the factors guiding judicial decision-making, it enables us to better understand the contingencies in the Court´s jurisprudence.