ISBN : 9780198844792
Deference to national authorities has, over the past decade, become an increasingly important and controversial topic in EU law. By granting Member States a broad 'margin of appreciation' or 'discretion' to settle some politically sensitive affairs, the CJEU exposed hitherto little known traits of European law. Its judgments are guided by judicial restraint, accentuate the regulatory autonomy of Member States, hint at the limits of the 'ever closer Union', and emphasise the non-economic dimension of the European project. In this way, they signal a transformation of both EU free movement and constitutional law.
At the heart of the book lies an innovative, empirical study of free movement case-law. It provides a systematic analysis of the Court of Justice's jurisprudence on Member State restrictions of the four freedoms. The study covers every complete fifth year of the CJEU's case-law from 1974 until 2013, a total of 247 decisions, approximately 20 per cent of all free movement cases ever decided. It measures how frequently the Court defers to national authorities in its judgments, whether its intensity of scrutiny has evolved over time, and which review patterns can be observed. Likewise, the impact of ten factors on the Court's review behaviour is tested, including variables such as the political sensitivity of a dispute, the level of EU harmonisation, the composition of the CJEU, and the origin of the referring court. The data offer a series of surprising findings. Not only has the Court's scrutiny of Member State laws become considerably more deferential since the 1970s, its review behaviour runs against many scholarly claims and predictions. The results of the study grant important insights into the aims, priorities, and challenges of the CJEU.
The New Free Movement Architecture
The Rise of Deference
The Margin of Appreciation: Theory and Practice
Decentralized Judicial Review: Theory and Practice
Proportionality and Its Discontents
Discovering Passive Virtues