The CJEU and EU (de-)constitutionalization: Unpacking jurisprudential responses

Abstract

Abstract The Court of Justice of the European Union has long been considered a steadfast advocate and engine of the constitutionalization of the European Union. More recently, however, critical voices about the Court’s seemingly deferential stance on executive (crisis) governance have amplified among legal scholars and political scientists. We take issue with this claim and show that the Court’s jurisprudence is neither predominantly hard-wired in favor of constitutionalization, nor is it deferential to governments’ wishes. Instead, we show that factors external to the law—the politicization of an issue—and internal to the law—the juridification of an issue—prompt the Court to adopt different jurisprudential responses on issues of constitutional salience, ranging from the expansion of constitutionalization to its retreat. To probe our assertion, we zoom into the European Union’s internal and external security policies—namely Justice and Home Affairs, on the one hand, and the Common Foreign and Security Policy, on the other—which exhibit contrasting constitutionalization trajectories. Based on a qualitative case law analysis, we demonstrate that the Court’s constitutionalization responses are indeed systematically affected by different levels of politicization and juridification.