Note: Due to its size, this article in its HTML version (this version) is published in two parts. This is Part One of Two.

"Those with a taste for fairy tales seem to have thought that in some Aladdin's cave there is hidden the Community law in its splendour and that on a judge's appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when the judge has muddled the password and the wrong door opens. But we do not believe in fairy tales any more."

A.  Introduction

  The law-making function of judges in general, and more specifically of the judges of the Court of Justice, was and continues not only to provoke debates and confrontations between different doctrinal opinions, but also to act as a battleground for opposing ideologies regarding the functions, powers and limits of the judiciary in our society. The issues involved are by nature trans-sectorial, (with aspects of a legal, social, economical and political nature), and thus cannot be restricted to a single field of inquiry. The difficulty of this subject would have made a general approach presumptuous. I thus preferred to restrict my study to an analysis of some of the decisions made by the Court of Justice regarding the principle of sex equality. This is a field of inquiry which is particularly suitable for identifying the decisional techniques of the Court, as well as for understanding the concepts of judicial activism and self-restraint and their respective limits. Such an analysis requires that we place our conclusions in the context of a general framework, and establish parameters to help us recognize a creative decision and evaluate its outcome.

  The first part will deal with the following issues: underlining what I consider the real meaning and extent of a judge's power, with particular emphasis on the specific role of the European Court of Justice, and identifying and evaluating law-making judicial operations.

  In the second part, in...