Supranational Delegation and National Judicial Review since the 1960s
This chapter focuses on the effort to translate the judicial dimension of the postwar constitutional settlement into supranational form. The chapter initially summarizes the critical role played by the European Court of Justice (ECJ) in the integration process. The focus of the chapter, however, is on the national high courts and their role in legitimizing European integration from the perspective of the postwar constitutional settlement. As this chapter shows, the national high courts have been caught between two competing tendencies: first, between the 1960s and the 1980s, the tendency toward strong deference to the political choice in favor European integration; and second, since the 1990s, with the German Federal Constitutional Court (Bundesverfassungsgericht) at the forefront, the desire to limit that strong deference in their Kompetenz-Kompetenz jurisprudence. This chapter revises conventional understandings of that latter jurisprudence by showing its foundations in normative principles which were central to the postwar constitutional settlement of administrative governance on the national level, notably delegation and mediated legitimacy. This grounding suggests an idea of European governance as less sui generis than normally supposed. Rather, it is seen as a new dimension of the diffusion and fragmentation of regulatory power away from the historically constituted bodies of the nation-state, which remain the locus of democratic and constitutional legitimacy in the European system.
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