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The Rise of the Procedural Paradigm : Judicial Review of EU Legislation in Vertical Competence Dispute

Öberg, Jacob LU (2017) In European Constitutional Law Review 13(2). p.248-280
Abstract
The Court of Justice’s role in controlling the exercise of Union legislative powers is a longstanding topic in EU legal scholarship. Observers have criticised the Court’s accommodating approach to the EU legislator’s broad interpretation of its powers and contended that the Court cannot be trusted to enforce the distribution of competences between the Union and the Member States (the ‘federal dimension’). Other commentators have emphasised that the Court’s limited legitimacy and expertise make it institutionally ill-equipped to engage in proper substantive judicial review of EU legislation. On the basis of such analyses, this article makes a proposal on how competence review of EU legislation could be improved. The article rejects... (More)
The Court of Justice’s role in controlling the exercise of Union legislative powers is a longstanding topic in EU legal scholarship. Observers have criticised the Court’s accommodating approach to the EU legislator’s broad interpretation of its powers and contended that the Court cannot be trusted to enforce the distribution of competences between the Union and the Member States (the ‘federal dimension’). Other commentators have emphasised that the Court’s limited legitimacy and expertise make it institutionally ill-equipped to engage in proper substantive judicial review of EU legislation. On the basis of such analyses, this article makes a proposal on how competence review of EU legislation could be improved. The article rejects substantive review and argues, on the basis of the Court of Justice’s judgments in Spain v Council and Kadi II, for an intense form of procedural review in the form of a standard of ‘adequate’ reasoning’ and ‘relevant evidence’. Such a standard strikes an appropriate balance between safeguarding the political prerogatives of the EU political institutions and the Court’s task of ensuring proper judicial safeguards of federalism. (Less)
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author
publishing date
type
Contribution to journal
publication status
published
subject
in
European Constitutional Law Review
volume
13
issue
2
pages
32 pages
publisher
Cambride University Press, Cambridge
external identifiers
  • scopus:85019999538
ISSN
1574-0196
language
English
LU publication?
no
id
12c8f63f-678d-48de-8683-a175dae7472e
date added to LUP
2018-09-04 22:45:40
date last changed
2018-09-16 04:56:55
@article{12c8f63f-678d-48de-8683-a175dae7472e,
  abstract     = {The Court of Justice’s role in controlling the exercise of Union legislative powers is a longstanding topic in EU legal scholarship. Observers have criticised the Court’s accommodating approach to the EU legislator’s broad interpretation of its powers and contended that the Court cannot be trusted to enforce the distribution of competences between the Union and the Member States (the ‘federal dimension’). Other commentators have emphasised that the Court’s limited legitimacy and expertise make it institutionally ill-equipped to engage in proper substantive judicial review of EU legislation. On the basis of such analyses, this article makes a proposal on how competence review of EU legislation could be improved. The article rejects substantive review and argues, on the basis of the Court of Justice’s judgments in Spain v Council and Kadi II, for an intense form of procedural review in the form of a standard of ‘adequate’ reasoning’ and ‘relevant evidence’. Such a standard strikes an appropriate balance between safeguarding the political prerogatives of the EU political institutions and the Court’s task of ensuring proper judicial safeguards of federalism.},
  author       = {Öberg, Jacob},
  issn         = {1574-0196},
  language     = {eng},
  month        = {05},
  number       = {2},
  pages        = {248--280},
  publisher    = {Cambride University Press, Cambridge},
  series       = {European Constitutional Law Review},
  title        = {The Rise of the Procedural Paradigm : Judicial Review of EU Legislation in Vertical Competence Dispute},
  volume       = {13},
  year         = {2017},
}