The CJEU – A Constitutional Court holding the EU together

Wesemann, Anne (2015). The CJEU – A Constitutional Court holding the EU together. In: Society of Legal Scholars Annual Conference 2015, 1-4 Sep 2015, York.

Abstract

The Court of Justice of the European Union is often viewed as a pragmatic court passing pragmatic judgments with a limited perspective on consequential future developments.
This paper will suggest that there is a plan behind the madness. In analogy to the relationship between the German Federal Constitutional Court (Bundesverfassungsgericht) and the German constitution (Grundgesetz), the jurisprudence of the CJEU shows resemblance of an evaluation of the Treaty provisions as constitutional principles.
The hypothesis will draw on Robert Alexy’s Theory of Constitutional Rights, developed with relevance to the German constitution. The application of this theoretical framework to the European Union in analogy to the Germany will be based on aspects of Pluralism.
It will be shown how in certain areas of European Union law (e.g. citizenship and free movement of workers) the CJEU has presented an interpretation of Treaty provisions that allows us to take those as constitutional rights norms. This will not only support the view of the Treaties as European constitutional framework. It will also disprove ongoing arguments against the legitimacy and judicial activity of the CJEU.

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