Constitutional Review of Member State Action: The Virtues and Vices of an Incomplete Jurisdiction

27 Pages Posted: 3 Feb 2019

See all articles by P. Takis Tridimas

P. Takis Tridimas

Queen Mary University of London, School of Law; King's College London – The Dickson Poon School of Law; Pennsylvania State University, Penn State Law

Date Written: September 6, 2011

Abstract

In providing preliminary rulings on the interpretation of EU law, the European Court of Justice carries out essentially review of constitutionality of Member State action. The ECJ enjoys discretion in determining the specificity of its ruling. It may give an answer so specific that it leaves the referring court no margin for maneuver and provides it with a ready-made solution to the dispute (outcome cases); it may, alternatively, provide the referring court with guidelines as to how to resolve the dispute (guidance cases); finally, it may answer the question in such general terms that, in effect, it defers to the national judiciary (deference cases). The degree of specificity is not a random exercise but a conscious judicial choice. The ECJ’s discretion in this respect operates as a constitutional valve and illustrates the direct use of judicial power. This article seeks to examine the varying degrees of specificity, the types of case where each is used, the reasons which determine variations, and whether any conclusions can be drawn as to the optimum approach that the Court should take.

Keywords: Jurisdiction, European Court of Justice, Preliminary References

Suggested Citation

Tridimas, P. Takis, Constitutional Review of Member State Action: The Virtues and Vices of an Incomplete Jurisdiction (September 6, 2011). Available at SSRN: https://ssrn.com/abstract=1923450 or http://dx.doi.org/10.2139/ssrn.1923450

P. Takis Tridimas (Contact Author)

Queen Mary University of London, School of Law ( email )

United Kingdom

King's College London – The Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

Pennsylvania State University, Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States
814-865-8975 (Phone)

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