Judicial Policy-Making and Europeanization: The Proportionality of National Control and Administrative Discretion

Journal of European Public Policy, Vol. 18:7: 944-961, (2011)

30 Pages Posted: 21 Sep 2013

See all articles by Dorte Sindbjerg Martinsen

Dorte Sindbjerg Martinsen

University of Copenhagen - Department of Political Science

Date Written: 2011

Abstract

Judicial policy-making is having an increasing impact on political domains traditionally guarded by national sovereignty. This paper examines how the European judiciary has expanded Community competences into the policy domains of welfare and immigration, followed by subsequent Europeanization, against the preferences of the member governments. It finds that the principle of proportionality constitutes a most powerful means for the European Court to strike the balance between supranational principles and national policy conditions and administrative discretion. While the Court has previously been cautious to apply the principle beyond economic law, it no longer treads as reluctantly, instead generally limiting the inner core of national policy control, i.e. the capacity of the national executive to detail, condition and administer national policies in almost all domains.

Keywords: administrative discretion, judicial policy-making and Europeanization, national control, principle of proportionality, welfare and immigration policies

Suggested Citation

Martinsen, Dorte Sindbjerg, Judicial Policy-Making and Europeanization: The Proportionality of National Control and Administrative Discretion (2011). Journal of European Public Policy, Vol. 18:7: 944-961, (2011), Available at SSRN: https://ssrn.com/abstract=2287914

Dorte Sindbjerg Martinsen (Contact Author)

University of Copenhagen - Department of Political Science ( email )

Øster Farimagsgade 5
Copenhagen
Denmark
+45 3532 3426 (Phone)

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