Anthony Arnull


The European Court of Justice (“the ECJ” or “the Court”) is widely recognized as one of the world's most successful international tribunals and has been held up as a model for others. Its reputation is in large measure based on its contribution to the “constitutionalization” of the European Community Treaties and to the functioning of the common market, particularly in the 1960s and 1970s. What has perhaps received less attention is the range of mechanisms employed by the Member States since the late 1980s to contain what they regard as expansive lawmaking by the ECJ. Those mechanisms have sometimes generated new waves of activism on the part of the ECJ as it has sought to compensate for their perceived defects. Is this frosty dialogue between the ECJ and the Member States conducive to the healthy development of the European Union and its legal order? If not, what can be done to break the pattern? In Part I, I attempt to anchor discussion of these issues in some of the academic literature on the post-war proliferation of international courts and tribunals. In Part II, I describe briefly some of the main decisions on which the reputation of the ECJ is based. The third (and longest) Part is concerned with Member State responses to expansive lawmaking by the ECJ. The final section attempts to answer the two questions posed at the end of the preceding paragraph.