The Use of Judicial Precedent as a Form of Activism by the Court of Justice: Strengthening the Union’s Powers to Protect the Rule of Law

Abstract

The article analyses the strategic use of the reference to its caselaw by the Court of Justice as a tool to innovate EU law. It compares such use in two areas of EU law, both recently at the heart of a number of important cases: on the one hand, the European Arrest Warrant (eaw), particularly the balance between national judges’ powers to refuse the execution of the eaw and the principle of mutual trust; on the other, the recent developments in the caselaw concerning judicial independence in the context of the worsening rule of law backsliding in Poland. It shows that, while in both cases the Court makes consistently relies upon its ‘settled caselaw’, it does so in different ways. Specifically, in the case of judicial independence, the Court refers to its previous caselaw to expand and consolidate the power of EU institutions vis-à-vis Member States’ national autonomy.