‘Constitutional Justice’ and Judicial Review of EU Legislative Acts

Abstract

The chapter argues that in order to focus our attention more sharply on the question of institutional authentication of the Court of Justice of the EU in its constitutional review reasoning the language of 'legitimacy' should be accompanied by that of ‘constitutional justice’. The chapter assesses the effectiveness of the existing conceptual constraints on the reasoning of the Court in constitutional review cases. It focuses in particular on the intensity of constitutional review carried out by the Court as evidenced by its reasoning practices. The chapter argues that judicially created principles of ‘the rule of law’ and ‘proportionality’ do not act as effective standards of constitutional review reasoning. It then discusses the Charter of Fundamental Rights as a new source of such standards and looks at post-Lisbon case law for evidence of judicial shift. The chapter concludes by expressing a view that the language of justice is necessary to compensate for deficiencies of the EU conceptual structure and that only the shift from legitimacy to justice in the theoretical discussion about the Union’s constitutional court will enable better articulation of the demanding expectations as to the Court’s justificatory practices.