Negotiating sovereignty in the preliminary reference procedure

The organisation of the judiciary is close to the heart of any system of government. For that reason, the EU Member States have largely resisted surrendering regulatory power over judicial procedures and remedies to the Union level.

In the absence of legislative action, it has fallen upon courts to manage the enforcement of Union rights through national procedures. In this context, the preliminary reference procedure offers a deliberative setting allowing courts at state and Union level to enter into dialogue over the degree of Europeanization of this “sovereignty-sensitive” field.

Relying on an empirical study of the exchanges between referring courts and the CJEU, the paper examines how courts at both levels respond to the responsibility of balancing national autonomy against European integration, offering new insights on the way in which courts deal with politically sensitive matters in every-day adjudication.

Reviewing the experts: a principled approach to the scrutiny of expert-based decision making in the CJEU

Arguments grounded on separation of powers and contextual expertise suggest that courts should refrain from undertaking searching inquiries into complex factual backgrounds. Measures that are the result of expert-intensive decision making have therefore traditionally been subject to a light-touch judicial review by the European Courts.

Interestingly, things may be changing, as the CJEU has been developing a more proactive approach to the review of expert-based measures, especially in the field of risk regulation.

The paper will undertake a cross-sectoral judicial analysis to try and understand how the CJEU frames and applies principles, such as participation, transparency and rational administrative decision making, when reviewing expert-based measures. In so doing, it will explore the hypothesis according to which judicial interpretation of such principles can act as a trigger for more legitimate and democratically sound involvement of experts in EU regulatory decision making.