Democratic Legitimacy and the Court of Justice of Justice of the European Union

The purpose of this paper is to review the jurisprudence of the Court of Justice of the European Union (CJEU) in relation to issues that may be deemed to have been only partially settled or not settled by the text of European Union (EU) treaties and legislation. This jurisprudence is often referred to as an example of legal activism and questions have been raised as to the democratic legitimacy of such activism. For the CJEU, the level of activism has varied over time, and responses from the Member State judiciary and legislative authorities has likewise varied. The core of the research issue in the present paper is the extent to which it may be argued that the solutions adopted by the CJEU may be classified as having a satisfactory democratic legitimacy as resting on the directions given directly or indirectly by the constitutional and legislative authorities that have adopted the EU instruments concerned. As special focus will be placed on the role of the Charter of Fundamental Rights, in relation to the manner in which the CJEU has used the Charter as a basis for defining individual rights for EU citizens as well as other legal and natural persons subject to EU law.