The Limits of Judicial Discretion in the European Court of Justice

While the EU is proceeding from a purely economic community to a full fledged political product, the European Court of Justice might find itself confronted, more than before, with the need to solve foreign affairs and security disputes. Given the complexity of these matters, the Court will have to choose from more than one possible lawful solution by exercising its judicial discretion. This Study first defines the concept of judicial discretion. Then the special features of the Community legal order – which oblige the Court to use its discretion more often than other courts – are analysed. Finally and central to the study is the analysis of the recommended limitations to be observed by the Court when using this discretion. These limits are mainly based on three considerations: the need for coherence in the Community legal order; the institutional character of the Court and the role of the judiciary; and the inter-relations amongst the Community"s institutions. On the basis of a critical examination of the case-law concerning "high politics", which has already been dealt with by the Court, the study concludes that the Member States of the Union could, and should, have entrusted the Court with jurisdiction in the fields of security and foreign affairs, thereby strengthening the rule of law and the Union"s legitimacy.