4. Discussion: from judicial activism to self-restraint

The unlimited jurisdiction of the Court, its status as the monopolist juridical authority in the European Union and extremely powerful position induced to emerge several problematic concerns. The settled case law of the Court of Justice, its influence on the legislation processes of the European Union in contravention of the check-and-balance institutional system require an expert theoretical reflection on the issue with a reference to the reasons and consequences of such a behavior in the European policy field. Researches engaged into the studying of the judicial politics offer several theoretical models that construct explanation of the Court's actions. Some of them were presented throughout this research paper briefly. In this part of the work we concentrate on those theories that seems the most appropriate. One of them is a judicial activism, approach becoming one of the most popular and frequently explored according to the circumstances that take place in the European space nowadays. At the same time there is no unified understanding of what judicial activism is (Zarbiyev, 2012). In the broad sense the judicial activism concerns the actions of the judiciary going beyond the frames of the dictated by the status behavior - an impartial institution that stands on the protection of the rule of law. The same time judicial activism can be related with the willingness of the courts to create a policy. Today courts become more important political actors by making crucial policy decisions, thus gaining more power and respect. Courts begin to act as legislators. Courts have surely extended their powers further than their founders originally intended. The Court of Justice of the European Union was one of the first courts blamed for being extremely active. The main rounds of the debates happened in the 1980s-1990s and quieted down in the recent time. However, the discussion has not been finalized still (Waele, 2010). From its establishment, one of the most arguable issues was a gap between the formal roles of the Court prescribed by the founding treaties of the Community and de facto the actions the ECJ executed (Starr-Deelen & Deelen, 1996). Its legislative unofficial authority was clearly seen through its rulings where the Court not only interpreted the provisions and norms but also rewrote them in a new way. The evidence of the judicial activism can be found in the doctrinal changes organized by the Court. Regarding the creation of the general principles of the EU law as its mission (Everling, 2000) the Court established the doctrines of the direct effect and supremacy, the principle of the liability of a Member State for the infringement of the EU law towards persons (cases Van Gend&Loos, Costa, Francovich). As Rasmussen (1986) mentioned “the transfer of decision-making rights from the legislature, the cabinet, or the civil service to the courts” has begun. Along with the Rasmussen there are several authors who states that ECJ is an extremely activist court. According to Arnull (2012), an activist court is a court, which has behaved improperly by straying beyond the limits of the juridical function, by misusing its powers. Keeping on the topic of special status of ECJ Alter (1998) gives her own “critical” estimation of the ECJ as the Court “declare illegal EU laws and national laws that violate the Treaty of Rome in areas traditionally considered to be purely the prerogative of national governments”. Others criticize the Court for not fulfilling its main function of applying the law as an economic tribunal (Rosas, 2007). In 2013 the Dutch government prescribed the European Court of Justice making an interpretation of the legislation that was fully in misbalance with legislature. In accordance with the Netherlands, the last must be more proactive and correct the judgments (Chalmers, Davies & Monti, 2014). However, some authors regard the judicial activism of ECJ as an aggressive one (Gibson & Caldeira, 1995) accusing the Court of being the least democratic institution nowadays. Thus, in the democratic sense 27 judges (even respectful) or a chamber (4-5 judges) cannot decide on the questions of integration and rule the future of the whole Community (Waele, 2010). The decisions of any court are incomparable with the legislation acts on criteria of quality and clearness. Judicial activism undermines the judicial authority. However, there are some authors who deny the activist nature of the European Court of Justice. Thus, Horeth (Horeth, 2013) claims the power of the Court is a result of the “unique system of checks and balances” (we will return to this theory later). Hatzopoulos (2013) goes further and states that the salient judgments of the Court, provoking new feelings and breaking the field of law, is an inevitable part of the dialog between actors necessary for the EU law development and stimulus for the political process. Somehow, the actions of the Court partly could be dictated by the objective necessity making the judicial activism practically inevitable. The first Treaties (Treaty of Paris, Treaty of Rome) were of framework character, declarative, without providing any concrete details on the real processes of policy within new Union (Pollicion, 2004). Additionally, the founding fathers of the new polity faced the problems of multilingualism and equality of authentic translations. The Court of Justice took the challenge to create the most fundamental pillars and unified the legal structure of the EU. To be objective, there are some signs allowing us to admit the phenomenon of judicial activism in the case of the ECJ despite mentioned. The style of reasoning in the judicial cases has lost its quality characteristics. Thus, the Court of Justice recognizing some questions of the national courts in the request for the preliminary ruling as superfluous can reject to answer them (Witte, 2013). Moreover, the texts of the cases are full of asymmetrical usage of generalizations and teleological concepts that leads to needless variability, uncertainty and unpredictability (Conway, 2012). The Court lacks the specificity of the detailed reasoning in the technically difficult cases, there is no individual approach to each case and existence of priority to one of the parts (for instance, Commission as it was proved above by the statistical data) (Chalmers, Davies & Monti, 2014). In the case Mangold, for instance, the idea of horizontal direct effect of general principles of EU law was not supported by strong argumentation, thus, giving birth for debates. Some provocative judgments constructed by the ECJ has led to the destabilization effects in the whole society (for instance the opinion of the Court on the topic of the accession to the European Convention on Human Rights) as there is no a balance between the Member States and the supranational institutions. Besides, the first ones are practically deprived of an ability to re-regulate the consequences of the resonance judicial cases. However, it is not honest to deny that the great amount of the judicial cases have lead the EU on the progressive way of development strengthening the Union, integrating the separate Member States into the real polity with prospects of the international actor. The revolutionary steps of the Court created the constitutional basis of the EU - special EU legal order (Volcansek, 1997, p. 12). The circumstances forced the Court of Justice to take up the leading positions. The Council of Ministers have stayed passive with an inert legislative agenda while the European Parliament has received the real authority to act only with the support of the Court much later (Starr-Deelen & Deelen, 1996). Nowadays, some authors advise the Court to limit the judicial activity spread out by the controversial cases as the time of the EU integration priority allowing it to turn the legislative processes on its own has come to the finalizing point. Too much divergence can lead to the undermining of the Court's legitimacy (Starr-Deelen & Deelen, 1996).

The theory of `judicialization of politics' are often equated with the `judicial activism' but it is a fully independent concept. There happen to be also such distinct phenomena as politicization of judiciary and rights jurisprudence. However, one of the main differences is that the accent of the presented concept `judicialization of politics' is placed on the judicial review and policy processes while judicial activism concentrates on the behavior of the Court, particularly the Court of justice. Standard understanding of the court as an institution in the frames of the constitutional canonic theory was transformed into the court in the judicialization of politics: the policy making-sphere was widened with a new actor by transferring to the courts some significant polemical questions to decide on them (Hirschel, 2008). Exactly the courts were defined as the most sufficient actors to take the decisions. Despite the fact that `judicialization of politics' can be marked today as a trend in the research sphere, there are only several authors who develop the ideas of this theory (Tate and Vallinder, Shapiro, Stone Sweet, Sieder) See: Tate, C. N., & Vallinder, T. (1995). The global expansion of judicial power. New York: New York University Press; Shapiro, M. M., & Sweet, A. S. (2002). On law, politics, and judicialization. Oxford: Oxford University Press; Sieder, R., Schjolden, L., & Angell, A. (2005). The judicialization of politics in Latin America. New York: Palgrave Macmillan. . The majority consider this idea as an `appendix' of the globalization processes and human rights proclamation. Nevertheless, the `judicialization of politics' is a meaningful notion needed to be presented in that part of discussion. Generally, this concept is an-umbrella one as it covers three processes happening in the society. The first one is quite abstract: the legal discourse implemented into the decision-making sphere and the policy as a whole (Hirschel, 2008). It can be named as the process of the law popularization, which is mostly observable in the society, social relations, culture. Another type of judicialization is the participation of the judicial instances in the determination of the outcomes in the policy fields by its judgments. Using the preferences of being an actor in the public policy sphere the courts rely on their own principles imported form the procedural rules. Among them is equality of the parties' positions, comparability, subsidiarity, transparency, accountability, reasoning schemes. Process of judicialization of politics is the most obvious in the European part of the world (Weiler, 1999). The Court of Justice of the European Union is undoubtedly one of the brightest participants in this process. The European Court of Human Rights in Strasbourg is another one. The same time different kinds of courts and tribunals, agencies and commissions (attached to WTO, NAFTA, or ASEAN; Criminal Tribunal in the Hague, the International Criminal Court) with multiple competences on the questions of finance, human rights, international affairs were established on the international level. The third type of the `judicialization of politics' is a responsibility of courts or quasi judicial structures for dealing with the core political issues (national security, electoral process and the outcome of the elections, democratic issues (change of the political regime), war, etc.). The case of the judicialization of politics has touched a lot of countries; due to the ECJ activity the European Union has become the unprecedented polity where the spheres of law and policy intertwined at the maximum. As we revealed the Court of Justice influenced all the cycles of the policy-making - from agenda setting to implementation. What are the possible reasons of the initialization of this process? The first category includes the existence of special institutional features. Most of all, the judicial body must be implemented into the institutional system with defined authority and jurisdiction. As well, it must have a proper legal basis (for instance, Constitution). Established human rights catalogue and procedural mechanism are also in the set of the necessary conditions. Behavior of judges, their interests, values and motivation are the second category of causality factors (sub-chapter 2.1. of this research paper is devoted to the analysis of this theme). The final category of reasons is the most influential and unpredictable. Political determinants, a blurred notion, may contain 3 sub-fields as R. Hirschl (2008) mentions: macro socio political trends (for instance, democratic governance), orientation on the human rights discourse and maneuvers made by the stakeholders in the policy frames. The last one is the crucial element. By admitting the Court as a policy maker, the stakeholders create the guarantee of reducing the volume of responsibility for unsatisfying decisions. This delegation seems rational as the participation of the court decrease the incredibility and verifies the legitimacy of the actions (Voigt and Salzberger, 2002). To sum up, the concept `judicialization of politics' is a reflection of the real power sharing between the legislative and executive bodies, from the one side, and the judicial institutions from another. As a result the courts gain more authority uncharacteristic of them and apply not typical decisions. The pattern of the political environment is changing without the securing of balance and stability.

One more concept that can explain the policy of the Court of Justice from period to period is the institutional environment (Dehousse, 1998) in the European Union differing from the traditional ones. The strengthening of the Court's role in the political life is a consequence of the tensions happening between the Member States and the supranational bodies periodically. The imbalanced political situation has become possible on the reason of uncoordinated division of legislative competence and jurisdiction (Dawson, 2013). The Catalogue of competences defines the structure of the authority division between the EU and Member States: the exclusive competence of the EU, the shared competence and the sovereign competence of the Member States (residually). However, for the Court of Justice there is no matter how the boundaries are strictly divided as it has an obligation to check the national law on compliance with the EU legal order. Thus, the legal acts of Member States in the sphere of health services, for instance, can be declared as irregular as they are in conflict with the norms of the EU law. Thus, building of a dialogue between the judiciary and the legislative branches seems to be a rational strategy in the current situation (Hogg, Thornton, 2000; Bateup 2005). The non-uniform structure of the Treaties only makes things worse. M. Horeth (2013) and other supporters of the `separation of powers' approach (Wasserfallen, 2010; Ferejohn, Weingast, 1992) claim that the ambitiousness of the Court and the roots of its power can be found the special conditions produced unintentionally by the `check-and-balance' system (detailed information in the sub-chapter 1.2.).

E. Muir represents the theory, which we have talked about earlier the human rights discourse. The author considers that the permanent item of human rights defense in the agenda list of the EU has reshaped the policy field of the Union towards the influential growth of the judicial bodies (Muir 2013). There are several evidence of interlink between the status the Court has obtained nowadays and the fundamental human rights. The first point concerns the process of `constitutionalization' in the EU. Received an approval from the side of the national governments and EU bodies the Court has been transformed from the typical judicial instance into the guardian of the EU legal order. One more factor that can explain the direction of the ECJ case law is the establishment of the human rights catalogue - the Charter for Fundamental Rights of the EU. Accumulation of the most fundamental rights and freedoms in the formalized document that now seems to be equal to the European Convention on Human Rights is the turning point in the EU law history. Some of the earliest ECJ conclusions were implemented into this composition. Another remarkable event is the accession of the ECJ to the ECHR. Thirty years of discussion on this issue allow being confident in the positive decision of the question. ECHR can propel to the next level in guarantying the standards of human rights protection system in the EU. However, this process is not an easy one, there are several tensions the most evident of which is the preservation of the EU law autonomy and locus standi right of persons to bring claims against the Union to the ECtHR (Saltinyte, 2010).

The conception opposite to the `judicial activism' is the `self-restraint'. This approach indicates the position of the Court in intended limitation of its activity, judicial creativity (Pollicino 2004) and accurate definition of the ECJ position in the EU in accordance with the rules. In the period of self-restraint the Court of Justice does not go out the boundaries of its own precedents interfering into the policy game of the European actors. 1908s-1990s are the illustrative years of the ECJ `self-restraint' behavior. That time the efforts of the Court directed to `iron out the wrinkles' with the Member States. Thus, the Court has changed the strategy line from being extremely active and provocative to the conservative manner (Dehousse, 1998). The same time the Court did not refuse from its achievements on the matter of the EU law constructing and did not recede from occupied position as a loco of the European integration. The `self-restraint' image of the Court was reluctant caused by the following factors. The cardinal shift in the policy happened with the introduction of SEA that brought the salient novelties. The major of them concerns the establishment of the single market and the redistribution of the powerful privileges. For instance, the European Parliament has finally become the full-fledged participant of the legislative processes; the co-operation procedure was approved, the Commission has gained more competence. Extension of the exclusive competence of the EU has lead from its side to the Maastricht Treaty, sending some “powerful messages” (Dehousse 1998) to the Court. The most important excluded the second and the third pillars from the Court's jurisdiction (Douglas-Scott 2002, p. 220). Thus, the Member States have taken measures for their sovereignty protection. The dynamics of the ECJ case law has changed. However, in the post-Maastricht space the status of the Court was rebuild (the Lisbon Treaty, the Charter). Learning the lesson, the Court provides the current activity with the careful control.

Somehow, we can observe the signs of any presented approach in the modern society. On the base of the theoretical and practical parts of the research it is evident that judicial activism and the judicialization of politics are prevailing concepts. Examined cases, the behavior of the Court, weaknesses of the `check-and-balance' system, weak control means of the national governments are indicators of the possible risks, concerning first and foremost the human rights protection system. There is no turning back to the previous mechanisms of control (for instance, the revision of the Treaty is not possible at any case). However, the EU institutions represent the one comprehensive system where any element fulfills its function. The Court of Justice is a crucial cell of this mechanism. The same time, the Court is a judicial body implemented into the European judicial system (the ECJ-national courts) and into the international judicial community in parallel with ECtHR, the EFTA Court. The model of the Court's behavior is formatted by the various factors, including the actors presented above. Finding a balance, the Court will continue to realize its mission without the misuse of the granted power.



Conclusion

The history of the European Union construction is one of the most interesting phenomena in the policy field. Today it represents a supranational polity, multi-level governance center where the power is divided between the supranational decision-making bodies and Member States agreed on such cooperation for definite aims. In order to make the idea of `united Europe' real, the Union has been transformed from the typical economic community into the political giant with a developed institutional network. The Court of Justice, as one of the meaningful elements of the EU, has played a crucial role in that transformation. By the way, the Court on the regular base participates in the process of public policy formulation. In this research paper we raised a question of how can the Court of Justice being a judicial instance define the EU legal policy and realize it. We developed three working hypothesis and assumed that the third one “By the case-law practices and precedents the Court formulates the policy independently” has turned out to be true.

Throughout the historical analysis of the Treaties' revisions from 1950s till modern times we observed how the legal base of the Court's operation has changed. Review of the most salient cases (for instance, cases Costa, Francovich) has revealed the major aspects of the constitutionalisation and integration processes within the EU where Court has declared itself as the most innovative actor. The changes in the judicial system brought by the Lisbon Treaty influenced the whole structure of European governance and strengthen the rule of law. Because of the changes, ECJ got a right to review legislative acts of the Council, of the Commission, of the European Central Bank, of the Parliament, of bodies, offices, agencies of the Union in the sphere of Freedom, Security and Justice. That means that the level of influence of ECJ has widened, the Court received an authority to hear cases on the topics of policies on border checks, asylum and immigration; judicial cooperation in civil matters; judicial cooperation in criminal matters; police cooperation. The scheme of European policy integration has been changed dramatically, the interconnection between the Commission and the European Parliament has been deepened, the state of the European Council was formalized. Against this background we have analyzed the status of the ECJ as an actor of the EU policy implementation and marked out the preconditions of its actorness' growth. Despite the specific functionality, we can mention the wide area of discretion left by the Treaties, weak control methods from the side of Member States, settled case law practices implemented into the European legal order, balance loopholes in the `check-and-balance' system (absence of the appropriate counterbalance mechanism), horizontal and internal division of powers. Confirming the results of theoretical research, we have made a practical one choosing two policy spheres (migration and labour) for the case law analysis. The choice of the fields was not accidental: the sphere of immigration is a new one for the Court while the labour policy has been developed from the very beginning of the EU. As well, we applied the policy cycle approach that ideally suited our research goal and tasks. The results have shown that the Court can try on any role within the policy-making process in the EU. This conclusion is not an absolute. Moreover, there are some drawbacks that could not be ignored. However, the outcomes can demonstrate the tendencies of the ECJ positions' strengthening during the last 60 years. The development of the case-law practices illustrates the active contribution to the Community policy architecture.

It is difficult to overestimate the meaningful role the Court plays in the integration process. Hard to imagine, that without the European Court of Justice there would not be any transformations of the founding Treaties of the European Union into the formal constitutional conventions recognized by all the Member States and the third countries that have the partnership agreements with the EU. The position of the ECJ is stable and steadfast. Due to the unlimited jurisdiction and a set of numerous functions the Court can apply any role in the Institutional system of the political body. As we have shown the ECJ can be a law-maker, a policy-maker, policy innovator, mediator, anyway the actions of this political structure give birth to institutional changes in the whole Community. The relationship between the Court and the political environment is being built on the composition of different preferences, values, and interests. Without doubts, the ECJ is a strategic actor whose political agenda is varied in the dependence of the legal values, political views, cooperation links between the institutions and Member States. At the same time, the imbalance of powers between the major European political institutions and Member States, the behavioral line of the European Court of Justice can provoke debates and confrontations between the presented actors. It is then the strategy duty of the Court to provide the dialog among the political figures for strengthening of the European space and at the same time to preserve the status of an arbiter who due to the notion has to retain the independence from the political sphere. There are two dominated approaches on the position the Court must occupy. From the first point, the Court is a unique authority who states the law, can interpret it and at the same time it is an institution whose essence is to be submitted to law (approaches `judicial activism', `judicialisation of politics'). From another point of view, Member States are the key players in the European field and ECJ can be recognized as the their agent through functions of which they gain power in the decision-making procedures (self-restraint approach). However, the last theory is a little out of date. The procedural mechanisms in which the Court participates in (for instance, infringement procedures), the reference to preliminary rulings which is de facto impossible to avoid when in the case there is an allusion to the European law, actions for annulment in the framework of which the Court of Justice has exclusive jurisdiction over actions between the institutions and those brought by a Member State against the European Parliament and/or against the Council - all these features witness the Court has a meaningful position in the political arena of the European region.

The tendencies of the interinstitutional litigations, the increase in the amount of references for the preliminary ruling and workload of the Court as a whole, the growth of the judicial politics and external influence of the ECJ show the Court is expected to become a judicial giant with blurred borders of jurisdiction, discretionary power and absence of the effective controlling mechanism above it (for instance, the European Court of Human Rights does not have means of monitoring of the ECJ activity). The direction of the institutional changes organized by the ECJ is not stable depending on the cooperation partner of the ECJ at the moment of the trial and the provisions of the Treaties. The future of the European Court of Justice as a political actor, decision-maker and mediator is controversial and ambiguous. This is a sign for the necessity of its status stabilization and improvement of the check-and-balances system, which is unfortunately on the early stages of the development in the European political field after the Lisbon Treaty reset.



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