With the declaration of direct effect and supremacy of European law, the EU has a constitution, all but in name. Different to constitutions of nation states, the constitution of the EU is rich on policy content (and low on principles safeguarding the rule of law). The policy content of the Treaty relating to the four freedoms and competition law has much helped the integration process. However, the parallel venues of judicial and legislative policymaking are increasingly dysfunctional, I argue. Case law of the ECJ accumulates and can hardly be overruled. Increasing constraints on European secondary law result as well as impracticable ‘bad’ rules. Moreover, judicialized policymaking is difficult to legitimate when redistributive issues are concerned. This is the case with the case law on EU citizenship, services, and labour mobility. The paper discusses the interaction of judicial and legislative policymaking on the basis of case studies, showing the limits of judicialization.
