The European Court of Justice (ECJ) has been evolving over time into the federal supreme court which a more united Union needs. Its judicial authority to ensure that EU law is observed needs now to be fully recognised across the governance of the whole spectrum of Union activity [35].  Notably, the ECJ must be given enhanced powers to review the legality of any act of the European Council when challenged to do so by the Commission, Parliament or member state. This would create a level playing field between the European Council and the other institutions [36].

The Court must be granted full judicial authority over those increasing aspects of the common foreign, security and defence policies that affect fundamental rights [37].  The removal of the present constraints on the ECJ’s jurisdiction in these fields would go some way to overcoming the Court’s own resistance to the EU’s accession to the European Convention on Human Rights (ECHR) – an important injunction of the Lisbon treaty which has not been fulfilled [38].  The ECJ is properly concerned to protect its own prerogatives with respect to the interpretation of EU law. Once it has been persuaded to accept the external supervision of the European Court of Human Rights at Strasbourg on ECHR matters, however, the ECJ will be able to develop confidently its own rights jurisprudence for the EU based on the more modern and wider Charter of Fundamental Rights.   

As the European Court of Justice evolves into a genuine supreme court, it will play a constitutional role in arbitrating rule of law issues involving member states, such as those which have concerned Hungary and Poland in recent years. The Court should be more proactive in defending the values and principles of the Union as spelled out in Article 2 TEU, especially that of the rule of law. It matters to the European Court that the courts of the member states which operate in the field of EU law across the Union should enjoy independent judiciaries capable of delivering the expedient administration of justice. The ECJ in Luxembourg has a duty of care towards the national courts on which it relies. 

Article 2

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

[35] Article 19(1) TEU. 
[36] Article 263 TFEU. 
[37] Article 24(1) TEU and Article 275 TFEU.
[38] Opinion 2/13 on Article 6(2) TEU.


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