‘Judicial Passivism’ in EU Migration and Asylum Law Revisited

Abstract

This paper defines judicial passivism as a subcategory of judicial activism applicable to cases where the Court of Justice of the European Union is consciously not using its powers where it could, due to the political and social sensitivity of the case, often combined with the ambiguity of the legal text. It is argued that the Court’s passivism is often the result of its reluctance to oppose Member States’ consensual will in politically sensitive and legally disputable migration matters. The paper juxtaposes the Court’s abstention in its earlier, politically sensitive migration cases with its strong upholding of migrants’ and asylum seekers’ rights in its recent migration-related judgements against Hungary. It is argued that the shift in the Court’s decision-making should not be viewed as a wind of change, but as the Court’s attempt to correct national rule of law-incompliant behaviour, while knowing that its condemnation of Hungary would find support among most other Member States.

Keywords: Judicial passivism, judicial activism, migration, asylum, Court of Justice of the European Union, rule of law