Volume 51 (2014) / Issue 6
If the ECJ delivers politically unwelcome judgments, can the legislature override these by adopting new laws? The question goes to the balance of power between legislators and courts, and to which organs are capable of steering the integration process. The answer in the EU context is distinctive, because the Union is so highly constitutionalized: most important legal questions are reducible to Treaty interpretation, which apparently excludes the legislature from their resolution. Drawing on American scholarship which advocates co-interpretation of the constitution by both legal and political branches, and using actual and hypothetical examples of situations where the legislature and the ECJ have wished to take different directions (e.g. citizenship, general principles, non-discrimination) this article examines three Court techniques to avoid legislative constraints: annulment, emasculatory interpretation, and avoidance. It also considers the ways in which legislation can be drafted to maximize its influence upon the Court.
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