Gerstenberg, O;
(2021)
The Uncertain Structure of Process Review in the EU: Beyond the Debate on the CJEU’s Weiss Ruling and the German Federal Constitutional Court’s PSPP Ruling.
Jus Cogens
, 3
pp. 279-301.
10.1007/s42439-021-00049-y.
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Abstract
The obligation to provide reasons (e.g. in Art. 296 TFEU) may appear rather a simple and straightforward, but in actual practice—as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht (“BVG”) amply demonstrate—is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined “good” reasons for those of the reviewee decisionmaker—legislatures, administrative agencies, or, as in Weiss, the European Central Bank (ECB). On the other side lies the concern with judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” (Sunstein / Vermeule) and democratic experimentalism (Sabel / Kessler)—this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review.
| Type: | Article |
|---|---|
| Title: | The Uncertain Structure of Process Review in the EU: Beyond the Debate on the CJEU’s Weiss Ruling and the German Federal Constitutional Court’s PSPP Ruling |
| Open access status: | An open access version is available from UCL Discovery |
| DOI: | 10.1007/s42439-021-00049-y |
| Publisher version: | https://doi.org/10.1007/s42439-021-00049-y |
| Language: | English |
| Additional information: | This is an open access article under the CC BY license (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited. |
| Keywords: | Administrative law, Judicial review, European Central Bank, Court of Justice of the EU, Reason-giving, Legitimacy |
| UCL classification: | UCL UCL > Provost and Vice Provost Offices > UCL SLASH UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws |
| URI: | https://discovery.ucl.ac.uk/id/eprint/10137245 |
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