Title
Multi-tiered political questions : the ECJ's mandate in enforcing subsidiarity
Author
Faculty/Department
Faculty of Law
Publication type
article
Publication
Oxford ,
Subject
Law
Source (journal)
Legisprudence: international journal for the study of legislation. - Oxford
Volume/pages
(2012) :3 , p. 321-346
ISSN
1752-1467
vabb
c:vabb:328378
Carrier
E
Target language
English (eng)
Full text (Publishers DOI)
Affiliation
University of Antwerp
Abstract
This article aims at clarifying the practice of judicial review of subsidiarity, which is widely held to be either injusticiable, or only to a very low extent. These objections contra subsidiarity review will be framed under the political question doctrine, and addressed in order to ameliorate the legal enforcement of subsidiarity. In a first section, subsidiarity will be construed as a regulative structural principle in a framework of multi-layered government. Art. 5(3) TEU functions as an instance of the broader principle. Secondly, the doctrine of political questions is explained and applied to the case of subsidiarity review in order to classify various arguments precluding review. Two objections surface as predominant: the impetus of judicial self-restraint and the methodological problem of a failing standard of review. I will contend that in a multi-layered framework pluralism necessitates judicial engagement, thereby rendering the mandate of the ECJ more broad. Secondly, the intensity of review needs to be augmented, both in a substantive and in a procedural sense. Substantively, the review of the material determinants of subsidiarity can be assisted by the Impact Assessment. At the procedural plane, the current review needs to be more structured and vigorous.
E-info
https://repository.uantwerpen.be/docman/iruaauth/b912fb/ccc22d9bf5f.pdf
Handle