Volume 52 (2015)

Volume 52 (2015) / Issue 5

Michael Dougan, 'Judicial review of Member State action under the general principles and the Charter: Defining the “scope of Union law”' (2015) 52 Common Market Law Review, Issue 5, pp. 1201–1245

Abstract

The article explores the concept of “scope of Union law” for the purposes of judicial review of national measures under the general principles of Union law and the Charter of Fundamental Rights. The Court’s classic case law assigned Member State acts to the categories of implementation or derogation, through a case-by-case analysis, though certain rulings never fitted neatly into that framework, prompting scholarly attempts to argue for an expanded definition of the scope of Union law: for example, by reference to a simple overlap in subject matter between Union and national legislation. The article considers recent cases which suggest the Court is willing to experiment with novel approaches to defining the scope of Union law – based on a more systematic and contextual approach to the relationship between disputed domestic acts and the Union legal order. The Court must articulate a convincing constitutional rationale for any new approach to defining the scope of Union law, consonant with the fundamental principle of conferred powers.

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ISSN: 0165-0750
ID: COLA2015102