Questions of great political and constitutional significance are increasingly being submitted to the European Court of Justice, which prompts the question whether the Court has become the arbiter of all major problems facing the European Union today.
In discussing recent trends in case law, Judge Allan Rosas observes that de Toqueville’s description of the importance of the US Supreme Court could apply to today’s European Court of Justice. That said, the Court can only deal with questions that have been specifically submitted to it.
In this paper the author refers to the EU’s external relations, asylum and immigration, economic and monetary policy, citizenship, the rule of law in general, and Brexit, as cases that would probably not have come before the Court were it not for the Treaty of Lisbon. Other explanations for the more recent reliance on the Court may be the inability of the political process to resolve the thornier issues facing the EU, and the fact that the Court is considered by many to be one of the more effective EU institutions.
Finally, Judge Rosas stresses the need for the Court to honour its judicial mandate and to do everything it can to preserve its legitimacy, an objective also furthered by the depoliticised appointment of judges through the so-called 255 panel procedure.
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