A Theory of the EU Judiciary in an Age of Constitutional Change and Populism

The paper focuses on the role and functions of the EU judiciary in the self-preservation and self-perpetuation of the EU legal order. The EU judiciary’s pivotal task has traditionally been that of approving or rejecting change – acting either as a driver of transformation or as a constraint. However, it is possible to devise, at least in the case of the EU, a form of change that eludes the above-mentioned binary code. Moreover, what function does the EU judiciary have – if any – in shaping the legal culture of a transnational space? The paper examines some key case studies from the past and the present, showing the extent to which and the constraints under which it is possible to analyse the ‘change’ performed by the EU judiciary in the development of the EU by focusing simultaneously on the EU judiciary’s ‘preserving’ and ‘creative’ nature.