Judicial law-making in a changing European legal order​


by Timo Zandra (student assistent)

Theory and practice suggest that the European judiciary increasingly takes on a more active role when deciding on cases in which ifferent norms conflict. The courts are increasingly called upon to balance different values and to reconcile conflicting interests, such as balancing public interests in private relationships, as in Urgenda (2015) and CJEU Aziz (2013). Such delicate balancing necessarily comprises legal-political and institutional dimensions, and the court’s value-judgements as such invariably yield political implications. At present, a continuing ‘Europeanisation’ of private law extends this judicial balancing to the interplay of national and supranational rules in the multi-layered order of the EU, involving diverging ideas of justice and principles of law at the interface of EU and national private laws. Such hard cases may provoke innovative case law, sometimes attracting the label of ‘judicial activism’. How can we explain such rulings? How do we assess their democratic legitimacy? And, ultimately, what should the role of the judiciary be when reconciling conflicting interests at the interface of EU and national private laws? The workshop of 28-29 September facilitated dialogue between leading academics and legal practitioners on these questions (click here for the programme).

Contributions came from inter alia Jaap Spier and Luc Lavreysen, who argued that the judiciary should take on a more active role in solving global issues such as climate change in order to compensate political inertia. Moreover, CJEU Advocate General Maciej Szpunar elaborated on the tension between the case law of the Court and the procedural autonomy of the Member States, whilst Laura Burgers proposed a democratic legitimation of the Urgenda decision from Habermasian democratic theory. Oliver Gerstenberg, Chantal Mak, Micheal Dowdle and Dorota Leczykiewicz presented their work on the ideas of justice underlying the construction of a European polity and the potential of Fundamental Rights to serve as standards in judicial deliberations.

Furthermore, Fabrizio Cafaggi and Anna van Duin presented on the eminent role of courts in the interpretation and application of, and the development of (national) remedies and procedures based on, the fundamental right to effective legal protection – in particular under EU consumer law. Cafaggi spoke of the interaction between private and administrative enforcement; Van Duin presented on the role of article 47 ECFR in the case law of the CJEU on unfair terms. Spanish judge José Maria Fernández Seijo emphasised the search for justice in finding solutions for ‘real-life’ problems; Aida Torres Perez expanded on the narrative of judicial mobilisation in the case of housing rights in Spain. And finally, Aurelia Colombi Ciacchi expanded the debate to the level of judicial governance, expanding on different models across the EU member-states.
Just as the case law will evolve and develop, so will the questions discussed during the workshop increasingly be coming back to the national and European judiciary. The debate is blooming and, in the face of rising Euroscepticism and pan-European challenges, perhaps more relevant than ever: the shared search for justice binds the European polity – people and judiciary alike.

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