12 Colum. J. Eur. L. 517 (2006)
Florian Sander, Associate, Freshfields Bruckhaus Deringer, Hamburg, Germany; LL.M., Harvard Law School, 2005; Dr. Jur., University of Hamburg, 2003.
One of the core concerns of current EU reform efforts is the transformation of the principle of subsidiarity into a judicially manageable standard governing the federal balance between the EU and its Member States. The draft European Constitution (TCE) provides the momentum towards judicial review of the principle of subsidiarity. While its entry into force is as of yet uncertain, it clearly indicates broad political consensus on a more sophisticated balance between judicial and political decision-makers. The need is apparent: Judicial review is a key feature of a properly operating, multilayered system of competences of all federal systems.
The practical impact of such reforms will critically depend on the European Court of Justice (ECJ) assuming such responsibility, yet without inducing judicial take-over of political decisions. This issue of balancing judicial and political responsibility, however, is as yet largely unprecedented in ECJ decisions: The Court’s present track record on subsidiarity issues reveals judicial reluctance rather than a proactive approach.
In an attempt to reconceptualize the role of the European constitutional judiciary on a comparative basis, this Article analyzes strands of federalism-referred Supreme Court adjudication as a possible role model for the ECJ. Focusing on judicial methodology, it explores analogous subsidiarity issues in recent decisions of the ECJ and the US. Supreme Court and examines the substantive basis for their partially divergent rationales. Based on this comparison, it proposes a moderate enhancement of European judicial engagement paraphrased as ‘federalism-reinforcing” judicial review. Core features of federalism-reinforcing judicial review are: (1) explicitness in addressing competing demands of the different institutional levels involved; (2) case-oriented and customized rather than anticipative general deference to political questions; and (3) judicial departure from a merely efficiency-oriented towards a substantive, multilevel-affirming subsidiarity construction.