The CJEU and EU (De)constitutionalization—Unpacking Jurisprudential Strategies

Abstract

The Court of Justice of the European Union (CJEU) has long been considered a steadfast advocate and engine of the constitutionalization of the European Union (EU). 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 favour of constitutionalization, nor is it deferential to governments’ wishes. Instead, we highlight in our interdisciplinary study, which combines analytical tools and conceptual insights from legal scholarship and political sciences research, that contextual elements prompt the Court to pursue different jurisprudential strategies on issues of constitutional salience, ranging from the expansion of constitutionalization to its retreat. To probe our assertion, we zoom into the EU’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 strategies are likely to be affected by two factors, namely different levels of politicization and juridification.

Keywords: CJEU; constitutionalization; politicization, EU security policies