Constitutional and Administrative Paradigms in Judicial Control Over EU High and Low Politics

Forthcoming in Perspectives on Federalism No. 2/2017

iCourts Working Paper Series No. 104

University of Copenhagen Faculty of Law Research Paper No. 2017-43

27 Pages Posted: 15 Sep 2017 Last revised: 3 Oct 2017

See all articles by Pola Cebulak

Pola Cebulak

University of Amsterdam ; University of Copenhagen - Centre of Excellence for International Courts (iCourts)

Date Written: September 13, 2017

Abstract

This paper 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.

Keywords: EU external relations, judicial review, Court of Justice of the EU, EU constitutional law

Suggested Citation

Cebulak, Pola, Constitutional and Administrative Paradigms in Judicial Control Over EU High and Low Politics (September 13, 2017). Forthcoming in Perspectives on Federalism No. 2/2017; iCourts Working Paper Series No. 104; University of Copenhagen Faculty of Law Research Paper No. 2017-43. Available at SSRN: https://ssrn.com/abstract=3036414 or http://dx.doi.org/10.2139/ssrn.3036414

Pola Cebulak (Contact Author)

University of Amsterdam ( email )

Spuistraat 210, room 125
Amsterdam, 1012VT
Netherlands

HOME PAGE: http://www.uva.nl/en/profile/c/e/p.p.cebulak/p.p.cebulak.html

University of Copenhagen - Centre of Excellence for International Courts (iCourts) ( email )

Studiestraede 6
Studiestrade 6
Copenhagen, DK-1455
Denmark

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