PANEL SESSIONS I MONDAY JUNE 25 2018 4.45 PM – 6.15 PM

Room: CYTT 5.23

  • QUESTIONING BOUNDARIES: THE ROLE OF THE JUDICIARY IN CONTEMPORARY DEMOCRACIES
    Judges are faced with a wide and growing variety of issues, the contentiousness of which exceeds the borders of the legal domain. As a result of changes occurring in decision-making processes at the national, regional and global level, matters invoking political controversy, technical complexity and external relations are increasingly brought to court and framed in legal terms. Courts may thereby be transformed into surrogate fora when political processes fail to strike a satisfactory balance between competing interests, epistemologies and levels of government. How are judicial bodies reacting to such challenges to long-established conceptual and institutional boundaries? Bringing together perspectives of constitutional, European and international law, and with a particular focus on the judiciary of the European Union (EU), the panel addresses the changing role of courts in democratic society and their relation to actors beyond the traditional boundaries of law and jurisdiction.
  • The role of the Court of Justice of the European Union in reviewing extraterritoriality
    When courts are faced with questions regarding the territorial scope and regulatory reach of domestic legislation, they engage with complex political issues. These extend beyond traditional conceptions of state sovereignty and non-intervention on which the functioning of courts is typically based. This paper examines the role of the Court of Justice of the European Union (CJEU) in reviewing the extraterritorial reach of EU law, which enables novel examinations of courts as surrogate fora for political processes. The paper focuses on the policy areas of environmental and animal welfare law. It analyses cases in which the CJEU engaged with extraterritoriality, both in reviewing the legality of EU legislation and in interpreting its exact scope. Such cases blur the distinction between the internal and external aspects of the EU legal order and demonstrate the changing role of courts in an increasingly globalised and inter-connected world.
  • 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.
  • 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.