The Future of Europe: Judicial Interference and Preferences

Abstract

While recently, academic attention has focused on the visions of the future of ‘Europe’ articulated by politicians in relation to the ongoing debate on the EU constitution, the views of judges have generally been overlooked — a curious fact given the amount of ink spilt on the famous idee de l'Europe of the European Court of Justice (ECJ), and how it pushed this idea forward. However, judicial preferences and their dynamics are an important element in the evolution of the Union, and not only to those who aim to provide a comprehensive model of the integration process. The ECJ has traditionally been viewed as a monolithic actor with pro-integrationist and competence-maximizing preferences, and has been either acclaimed or blamed for using its judicial powers to transform the European Community Treaty into the constitution of a centralized federal legal order, and to promote integration. This article examines judicial preferences, collective and individual, and their formation, particularly in relation to constitutional reform. In so doing, it distinguishes between three institutional contexts in which the EU Judiciary forms and displays its preferences: the political (Convention cum IGC), the judicial and the academic. It suggests that judicial preferences are not what they are usually assumed to be and that they have changed over time. It then proposes explanations of the origin of these preferences (trans)formation, in the light of the main theoretical approaches (i.e., liberal intergovernmentalism and constructivism).