The uncertain structure of process-based proportionality review in the EU: looking back at the debate on the CJEUs Weiss ruling and the German Federal Constitutional Courts PSPP ruling

Oliver Gerstenberg

Chapter 9 in Social Rights and the European Monetary Union, 2022, pp 186-203 from Edward Elgar Publishing

Abstract: The obligation to provide reasons (e.g. in Art. 296 TFEU) may appear rather a simple and straightforward, but in actual practice - as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht ("BVG") amply demonstrate - is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined "good" reasons for those of the reviewee decisionmaker - legislatures, administrative agencies, or, as in Weiss, the European Central Bank (ECB). On the other side lies the concern with judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law's remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse - the neo-Fullerian concept of an "internal morality of law" (Sunstein / Vermeule) and democratic experimentalism (Sabel / Kessler) - this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review.

Keywords: Economics and Finance; Law - Academic; Politics and Public Policy Sociology and Social Policy (search for similar items in EconPapers)
Date: 2022
References: Add references at CitEc
Citations:

Downloads: (external link)
https://www.elgaronline.com/view/edcoll/9781839105258/9781839105258.00017.xml (application/pdf)
Our link check indicates that this URL is bad, the error code is: 503 Service Temporarily Unavailable

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:elg:eechap:19668_9

Ordering information: This item can be ordered from
http://www.e-elgar.com

Access Statistics for this chapter

More chapters in Chapters from Edward Elgar Publishing
Bibliographic data for series maintained by Darrel McCalla ().