... transfer of decision-making rights from the legislature, the cabinet, or the civil service to the courts."5 However, the crucial question is whether the court, by assuming for itself these powers, is going beyond its judicial capacity? The main focus of this discussion will be in relation to the European Court of Justice, which seems to have taken an extremely activist approach in its attempts to create a constitutional foundation for the European Union.6 It is a court of extraordinary power and yet this power seems to be underestimated or unrecognized. As Stein has so aptly stated: "tucked away in the fairy Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of justice of the European Communities has fashioned a constitutional framework for a federal-type structure in Europe."7 Therefore, it seems that the European Court of Justice is ...

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