Volume 50 (2013) / Issue 4
This article argues for a new approach to the assessment of the Court of Justice's contribution to EU integration. Responding to weaknesses identified with the classic "activism" versus "restraint" scholarship on the Court, it constructs a more robust theoretical framework to critique the legitimacy of judicial lawmaking. This framework, inspired by political science scholarship on the Court, positions the ECJ as an institutional actor, engaged alongside the EU legislature in the development of EU law through judicial interpretation. The institutional actor thesis is employed to explore the restraining impact of Treaty provisions on the ECJ's freedom to act as lawmaker. The article identifies a range of Treaty provisions that were conceived as limits on the pace and depth of EU integration and reframes these as "legal limits" to ECJ lawmaking. It then reflects on the challenges, opportunities and broader implications associated with operationalizing these provisions as sources of normative restraint on the ECJ's interpretative competence.
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