Talking with the ‘ pouvoir constituant ’ in Times of Constitutional Reform: The European Court of Justice on Private Applicants' Access to Justice

Abstract

This contribution analyzes a classic theme of the Court's case law: the relationship between judges and pouvoir constituant. This relationship has traditionally been marked by the ECJ's role as the driving force in the ‘constitutionalization’ of the EC Treaties – which has, to a large extent, been accepted and even codified by the Member States in subsequent treaty revisions. However, the ECJ appears to be now more reluctant to act as a ‘law-maker.’ In this context, the recent judgment in Unión de Pequeños Agricultores (UPA) – an important decision by which the ECJ refused to liberalize individuals' access to the Community Courts – is examined. It appears from this analysis that the ECJ's UPA judgment indicates the beginning of a new phase in the ‘constitutional dialogue’ between the ECJ and the ‘Masters of the Treaties.’