The Executive Power of the European Union and the Courts of Member States
In our times, executive power is widely considered the ‘most dangerous branch’ of the three classic government branches (the legislator, the executive, the judiciary), also within the EU. The EU’s executive output may impact, directly and indirectly, enormously on Member State governments, citizens and companies, with the Eurocrisis being the latest example thereof. It is evident that the EU’s executive needs to be subject to countervailing forces on the EU and national level. Herman van Harten presents a new research project which maps and evaluates how EU excecutive power is held accountable by the Member States' courts.
Judicial accountability of the EU’s executive is realised by the Court of Justice of the EU (CJEU) and Member State courts. The possibilities for direct judicial review at the CJEU are very strict and limited. Almost always, citizens and companies in the EU rely on the courts of the Member States. In those proceedings EU’s executive output may be checked and balanced, but when and how? To date, no sustained effort of empirical analysis of law and practice on this specific relationship has been made.
A new research project explores this academic terra incognita. The aim is to map, frame and evaluate how the EU’s executive power is held accountable by courts in a selection of Member States. It will assess: (1) how the executive power of the EU plays a role in day-to-day court practice in selected Member States in two specifically studied areas of EU economic law (competition and regulated markets), (2) how the EU’s executive is checked and balanced in practice by courts of Member States, and (3) how national courts could function as a genuine countervailing power for the EU’s executive. During the ACELG meeting the structure of this project as well as some tentative case law research in this area will be presented and discussed.
Herman van Harten is a Postdoctoral Researcher and Assistant Professor in Law at the Montaigne Centre for Judicial Administration and Conflict Resolution, Utrecht University. As a former member of the ACELG, he received his Ph.D. on Autonomy of national courts in EU Law at the University of Amsterdam in July 2011. He continued to explore this area of law and practice in Utrecht and was a MacCormick Fellow of the School of Law, Edinburgh University in 2012. Furthermore, he acted as a consultant for judiciaries, is a Member of the Board of the Dutch European Law Society and a regular contributor to various academic legal journals with a focus on domestic effects of EU law, the practical role of national courts in the EU’s judicial system and EU economic law.
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