Multi-tiered political questions : the ECJ's mandate in enforcing subsidiarity
Faculty of Law
Legisprudence: international journal for the study of legislation. - Oxford
, p. 321-346
University of Antwerp
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.