Constitutional and administrative paradigms in judicial control over EU high and low politics

TY - JOUR

T1 - Constitutional and administrative paradigms in judicial control over EU high and low politics

AU - Cebulak, Pola

PY - 2017/11/1

Y1 - 2017/11/1

N2 - This article explores the particular tensions surrounding judicial review in EU external relations. The tensions are classified using a two-dimensional framework. Firstly, a distinction based on policy domains of high and low politics, which is derived from constitutional theory, and external to the CJEU; and secondly a distinction based on legitimizing paradigms of administrative (EU as effective global actor) or constitutional (judicial review as guarantee of fundamental rights) in character and determined by the Court itself. Even though one would expect a dominance of the administrative paradigm in the domain of high politics, the Court uses both the administrative and the constitutional paradigm in its external relations case-law. The decision on which of these becomes the guiding frame seems to depend more on the policy domain, and be made case by case, which suggests politically sensitive adjudication, rather than a coherent approach to legitimizing the nascent judicial review in EU external relations.

AB - This article explores the particular tensions surrounding judicial review in EU external relations. The tensions are classified using a two-dimensional framework. Firstly, a distinction based on policy domains of high and low politics, which is derived from constitutional theory, and external to the CJEU; and secondly a distinction based on legitimizing paradigms of administrative (EU as effective global actor) or constitutional (judicial review as guarantee of fundamental rights) in character and determined by the Court itself. Even though one would expect a dominance of the administrative paradigm in the domain of high politics, the Court uses both the administrative and the constitutional paradigm in its external relations case-law. The decision on which of these becomes the guiding frame seems to depend more on the policy domain, and be made case by case, which suggests politically sensitive adjudication, rather than a coherent approach to legitimizing the nascent judicial review in EU external relations.

KW - Court of Justice of the EU

KW - EU constitutional law

KW - EU external relations

KW - judicial review

UR - http://www.scopus.com/inward/record.url?scp=85035110695&partnerID=8YFLogxK

U2 - 10.1515/pof-2017-0016

DO - 10.1515/pof-2017-0016

M3 - Journal article

AN - SCOPUS:85035110695

SN - 2036-5438

VL - 9

SP - E240-E267

JO - Oxford Medical Case Reports

JF - Oxford Medical Case Reports

IS - 2

ER -