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This chapter deals with a primordial aspect of the evolution of the Area of Freedom, Security and Justice (AFSJ): judicial control. It maps out what the present situation is and what the future is likely to be — and should be. The study of judicial control in this area presupposes, however, a previous analysis of the nature of the measures that are produced in it. From an organizational point of view, therefore, the chapter will firstly deal with the current and future legal effects of the measures adopted in the AFSJ. Secondly, the current and future jurisdiction of the Court will be scrutinized, distinguishing between the following aspects: direct and indirect review of measures, policing the borders, infringement proceedings, damages, and action for failure to act. The section on the future jurisdiction of the Court examines the changes envisaged in the Lisbon Treaty. Finally, the last section deals with different ‘cherry-picking’ proposals — put forward by different institutions in the interim between the Constitutional Treaty and the Lisbon Treaty to change the jurisdiction of the Court in this area.

The institutionalization of European administration space is examined through one of the least visible or understudied, but most important, outcomes of integration: the development of administrative law for the European Union (EU). As positive integration came to constitute a central priority for EU organizations, the European Commission’s administrative responsibilities and capacities multiplied, so that it is now expected not only to monitor and enforce compliance with an increasingly dense and technical body of supranational rules but also to determine how that law is to be applied to specific individuals and situations. Neither task could be performed without appropriating a great deal of discretionary authority, and it is argued that, in Western democracies, the problem of controlling rising administrative discretion has inevitably been felt, and has typically been dealt with through the development of judicial mechanisms. Using the American (US) experience as a comparative backdrop, it is shown that once judges require that administrators furnish formal justifications for their actions, the judicial review of the ‘reasonableness’ of administrative acts follows. The author traces how these and other forms of judicial control of the EU’s administrative acts developed through litigation and the rule-making of the European Court of Justice and the Court of First Instance, despite the absence of explicit Treaty of Rome provision, so that the basic foundations of EU administrative law are now in place.

This chapter presents the core conceptual and institutional attributes that traditionally characterized the French judicial order. This portrait of the French legal system stresses three interrelated and defining characteristics. Above all, the French system has traditionally functioned on the basis of a distinctive republican notion of judicial control and legitimacy. In accordance with this theory, the authority and legitimacy of judicial decisions — especially at the appellate levels — rested not with the public accountability of judicial reasoning, nor with individually signed and authored judicial opinions, nor with the ability of individual litigants to intervene in, and contribute to, the judicial decision-making process. They hinged instead on the pedigree of the appellate judiciary as an elite, specialized, and representative state institution capable of making decisions in the name of ‘the general interest’ and ‘the public good’.

This chapter discusses some of the difficult, but fascinating, rule of law/democratic theory issues raised by the judicial approaches employed by the Cour de cassation of France, the Supreme Court of the United States, and the European Court of Justice. It examines what it means for legal and judicial systems to function in such bifurcated or integrated ways. More specifically, it explores the implications for such interrelated issues as judicial transparency, accountability and control, and democratic debate and deliberation. As an introduction to the complex topic of how the French, American, and EU judicial systems each deal with the formation and transfer of interpretive knowledge and authority, this chapter considers how each of the three judicial systems handles the deeply pragmatic issue of how to make publicly accessible certain forms of knowledge about what Americans call ‘the state of the law’ (that is, knowledge about the content, development, and motivation of existing legal and judicial norms).

This chapter analyses the role of democratic accountability in the Union's foreign policy, focusing on democratic accountability within the CFSP. It should, however, be pointed out that the involvement of the European Parliament in Community decision-making is most far-reaching in the legislative sphere. The European Parliament is not much involved in the executive aspects of Community policies, and its exclusion from the executive aspects of the CFSP, therefore, does not represent as stark a contrast as it might appear. The possibilities for judicial control by the Court of Justice within the sphere of the CFSP are also considered.

This chapter takes a practical and principled look into the future, exploring whether and how individual sanctions could lawfully and legitimately be adopted under European law. The chapter is structured as follows. Section 1 examines how autonomous sanctions against individuals could be adopted in compliance with procedural rights. Section 2 considers procedural protection from European sanctions giving effect to UN lists. Section 3 addresses the necessary level of judicial control over individual sanctions. It considers the role of the judiciary in determining the line that separates lawful counter-terrorist measures from unjustifiable human rights restrictions. Section 4 discusses the proportionality of individual sanctions.

The legislature has intervened to withdraw some kinds of cases from judicial control by designating them as involving political acts or acts of sovereignty. These concepts mean that certain actions are not subject to judicial control not only because it would be difficult for the judiciary to deal with such issues but also in order to allow the executive authority to exercise a broader discretionary power. Despite the wide range of judicial control over all activities exercised by the modern state, many of the practices of the executive authority in Egypt are not included in the jurisdiction of the judiciary. Such actions are known as ‘acts of sovereignty’ or ‘political acts’ in Egypt. This chapter presets the position of administrative and constitutional judges on this notion of acts of sovereignty in Egyptian history.

This chapter focuses on EU courts. The way in which the principles of review have developed has been affected by the jurisdictional divide between the European Court of Justice (ECJ) and General Court (GC), and between these courts and national courts. It is argued that a necessary condition for an effective regime of judicial control is the existence of a rational judicial architecture, embracing the ECJ, GC, and national courts. The chapter is organized as follows. It begins with an analysis of the central structural and jurisdictional features of the present system, followed by consideration of the case-load problems of the EU courts, and the techniques available to limit the cases that are heard. The focus then shifts to the aims that should underlie reform of the Union's judicial architecture. The bulk of the chapter is concerned with the relationship between the ECJ and the GC, and that between the EU courts and the national courts. The discussion draws on two important papers concerning the EU's judicial architecture. One was produced by the then current members of the ECJ and CFI; the other was written by a Working Party composed largely of former judges of the ECJ at the behest of the Commission. The papers generated significant discussion and comment, which are referred to in the course of the ensuing analysis.

The basic principle for the Bundesverfassungsgericht (German Federal Constitutional Court) has been that the international delegation of limited and revocable powers generally has been accepted as long as the organizations to which powers are delegated also provide adequate protection of individual rights. The principle that delegation is to be functional was another way to create safeguards concerning the extent to which powers were delegated. That principle has been applied consistently with regard to delegations to the European Community (EC), although the definition of powers that are limited and revocable has been given an ever-wider interpretation over time. When considering how the Constitutional Court has exercised constitutional control over delegations to international organizations, it also is important to note that, in relation to the EC and the European Union (EU), it has controlled a process of constitutionalization at the level of European integration. This chapter compares that development with how the Constitutional Court has conceptualized the national constitutional control of developments in the second and third pillars of the EU and European integration more generally. In that context, it also provides a short background outlining how the Constitutional Court has treated problems of European integration. It argues that the development of supranational integration sheds new light on some of the central aspects of theories of judicial control of political decision-making.

This chapter outlines some of the central characteristics that differentiate jury systems. Topics discussed include the jury's role in democratic theory and practice, adversary procedure and the jury, contemporary juries, judicial control over the jury, and other factors bearing on jury system differences.

This chapter takes a look at how constitutional review is conducted in Finland. Here, the Finnish model has managed to ward off at least some of the dangers of which critics of judicial review and the ensuing tendency towards a ‘jurisdictional state’ have warned. This model is based on a combination of abstract parliamentary ex ante review and judicial ex post control. Clear emphasis has lain on ex ante monitoring, and courts seem to have accepted the role that the last resort theory of judicial review assigns to them. Moreover, an integral part of the present balance between parliamentary and judicial control consists of the ‘evident conflict’ requirement established by article 106 of the Constitution.

This chapter examines the formation of the Third Pillar of the European Union and the evolution of cooperation in justice and home affairs. It suggests that even before the Third Pillar was adopted, its architecture had been heavily criticized. Like the First Pillar, the Third also reflected political compromise more than principle and the extent of public and parliamentary readiness at the stage of uniformity of political commitment with respect to judicial control was dependent on the European Court of Justice (ECJ).

Given the fourth chapter’s conclusion that the Court in Short-selling has not sufficiently taken into account the issue of controlling agencies, this chapter tries to identify the degree of control that is appropriate and necessary. To do so, the chapter starts with a comparative excursion, looking at how independent agencies function in two other federal polities, the US and Germany. This is juxtaposed with the actual control over EU agencies currently exercised by the Member States and the institutions. It is then found that the control mechanisms of the Commission and the Parliament ought to be strengthened. Since judicial control complements political control, the chapter finishes by looking into the position of EU agencies in EU procedural law. While the Treaty of Lisbon has mended the most acute lacunae, it also leaves open some questions related to the EU agencies’ position in the EU institutional setup.

This chapter argues that two distinct approaches to monitoring subsidiarity, focused on procedural tests of competence, are providing a new approach to the judicial control of subsidiarity. The Lisbon Treaty increases ex ante political control by empowering national parliaments to issue ‘early warning’ signals for breaches of the subsidiarity principle. This is complemented by the ex post legal control, which is strengthened by the new legal framework. This constitutional provision of the Lisbon Treaty, along with the rise of the impact assessments used as an EU institutional policy, reflect a general move towards proceduralization, which is evident in judicial review exercised by the Court of Justice of the European Union.

Chapter 5 analyses the independence and impartiality of Europe’s judge; but it does so under the heading ‘independence within interdependence’. By doing so, it brings out the various ways in which the judges of Europe refer to each other and endeavour to learn from each other’s jurisprudence. The chapter sets out this dual quality of independence and interdependence by, first, analysing the development of constitutional adjudication in Europe; then, second, the evolution of reinforcement of judicial control with the executive; thirdly, it looks at the right to an effective remedy before an independent and impartial tribunal—in relation to all these developments the chapter sets out and analyses the co-operation and dialogue which is taking place between the courts of Europe.

The crisis has resulted in an increased dominance of the executive at both national and supranational levels, including executive expert bodies such as the Commission and the ECB. This dominance of the executive—and, especially, of national executives—has manifested itself in several ways. In general, there has been a resurgence of intergovernmentalism, or the adoption of decisions by means other than the Community method. This chapter analyses the causes and facets of this resurgence. It pays special attention to the adoption of measures of international law outside the EU legal framework; to the use of EU institutions in this ambit; and to the consequences of executive dominance for democratic and judicial control.

The concept of the rule of law has different—common law and continental—historical roots and traditional perspectives. The common law tradition is more focused on limiting the powers of the state, whereas the continental tradition focuses on not just to limit but also to empower the government. But both systems have a focus on the rule of law. The rule of law in the classical liberal tradition is based on four elements: legality, division and balance of powers, independent judicial control, and protection of fundamental rights. The differences between rule of law and rechtsstaat are: different concepts of the state, mixed legal systems and different approaches of a constitution, and different perspectives on human rights. There are two levels of development: a model in which law is a way of structuring and restricting the power of the state, the second level is more subjective and has important individual positions. The concept of good governance related to these developments makes clear the need to broaden the concept of the rule of law.