Self-restraint of the European Court of Justice vis-à-vis national constitutional courts – The demise of judicial activism?

For many, the European Court of Justice has become the epitome of judicial activism. In recent years, however, some scholars have diagnosed a shift to a more deferential attitude of the Luxembourg Court. This contribution will put the thesis that the Court has matured into a new era of self-restraint to the test, in particular in its relationship to national constitutional courts. In fact, there are relevant indications for such a development, notably regarding a) the “respect of national identity” clause, b) the realignment of the division of labor between the EU and Member States courts as regards fundamental rights and fundamental freedoms as well as c) the alliance the European Court of Justice appears to offer to national constitutional courts in contrast to international courts and tribunals outside the EU legal protection system. The analysis calls for a nuanced, and reluctant, answer regarding the purported end of judicial activism on the part of the Luxembourg Court.