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Publication details

Gerstenberg, Oliver (2021) 'The Uncertain Structure of Process Review in the EU: Beyond the Debate on the CJEU鈥檚 Weiss Ruling and the German Federal Constitutional Court鈥檚 PSPP Ruling',听Jus Cogens, 3,听279-301. 10.1007/s42439-021-00049-y.

Summary

The obligation to provide reasons (e.g. in Art. 296 TFEU) may appear rather a simple and straightforward, but in actual practice鈥攁s the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht (鈥淏VG鈥�) amply demonstrate鈥攊s fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined 鈥済ood鈥� reasons for those of the reviewee decisionmaker鈥攍egislatures, 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 fa莽ade thereby placing democratic accountability in the modern administrative state beyond law鈥檚 remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse鈥攖he neo-Fullerian concept of an 鈥渋nternal morality of law鈥� (Sunstein / Vermeule) and democratic experimentalism (Sabel / Kessler)鈥攖his 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.