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2 - The Institutional Balance as CJEU's Contribution to Democracy in the Union: Selected Issues

from PART ONE - THE COURT OF JUSTICE OF THE EUROPEAN UNION

Published online by Cambridge University Press:  15 December 2017

Tomasz Dubowski
Affiliation:
Department of European Law, Faculty of Law, University of Bialystok
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Summary

INTRODUCTION

What is an institutional balance in the European Union (EU) law? An idea, a proposal, a mental shortcut or an empty formula? There are many controversies referring to its nature. They are connected, for example, with the way of its introduction onto the plane of the European Union law. It has not been directly expressed in any of the Treaty provisions. Simultaneously, it is certain sets or groups of these provisions read in a systemic way, that allowed the Court of Justice of the European Union (the Court, CJEU) to formulate and embed it in the EU legal order. This is a quite typical operation in reference to the so-called general principles of law. Institutional balance, although not without controversies, seems to fit this category.

Since institutional balance has not been directly expressed in any Treaty provisions, its embedding in the European Union legal order had to be based on the Court's creative interpretation of the Treaties. It is one of the cases where the Court seems to exceed the framework of its literally understood function and competence determined by the Treaties. It is one of the examples of the Court's active affecting the development of the whole of EU law.

However, the question arises if, in the context of institutional balance, the Court “creating” a certain general principle contributed to strengthening the democratic nature of the Union as an exceptional integration structure. Has the Court's “law-making” activism contributed in this case to consolidation of the democratic foundations of the Union?

In order to answer these questions it is, firstly, necessary to find out whether the introduction of institutional balance as a general principle into the EU legal system required the Court's real adjudicating activity, an activity close to legislation. Secondly, it is important to establish the content of the principle of institutional balance – prohibitions and prescripts it generates and to demonstrate in what way the maintenance of institutional balance affects or may affect the state of democracy within the European Union – what is the link between this principle and democratic values.

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Publisher: Intersentia
Print publication year: 2015

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