Judicial Responses to Autocratic Legalism: The European Court of Justice in a Cleft Stick?

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Table of Contents: I. Introduction. – II. Autocratic legalism: a threat to the ECJ’s authority. – II.1. Autocratic counter-interpretations of Union law. – II.2. An autocratic contestation of the ECJ’s authority. – III. A constitutional response to a crisis of values. – III.1. A dynamic response to the formalism of autocratic legalism. – III.2. A flexible response to a crisis of values. – IV. Alternative responses to autocratic legalism. – IV.1. Decentralised solutions to a crisis of values. – IV.2. Administrative reasoning as a response to autocratic legalism. – V. Conclusion.

Abstract: In recent years, the Court of Justice has become one of the most pronounced voices of opposition to illiberal projects in Europe. Its tenacity, however, has turned the Court into the target of national lawmakers who seek to undermine the authority of the Court and Union law more generally. The present investigation suggests that these attacks share recurrent features and may be qualified as “autocratic legalism”. It will be argued that, above all, attacks of this nature are aimed at calling into question the authority of the European Court of Justice among national audiences. For European judges, consequently, this raises the question how to appropriately respond to such efforts. Although there may be no ideal solution in this regard, the present investigation discerns three responses in the jurisprudence of the Court and assesses these approaches in the light of the strategic objectives pursued by autocratic legalists.

Keywords: autocratic legalism – European Court of Justice – rule of law – refugee crisis – Poland – Hungary.

European Papers, Vol. 7, 2022, No 2, pp. 651-670
2499-8249 - doi: 10.15166/2499-8249/592

* Research assistant, University Konstanz, jonas.bornemann@uni-konstanz.de.


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