This chapter considers the concept of deference in EU law and how it is deployed when the EU courts engage in judicial review. It is necessary, as will be seen in the ensuing analysis, to distinguish between the meaning of the concept of deference from use of the word. There is a proximate connection between deference and the rule of law, insofar as deference operates as a control device to help determine the intensity of judicial review, and hence the degree of judicial control over public power that is warranted. The concept of deference in EU law is evident in three doctrinal contexts: review for proportionality, review for manifest error, and review for human rights.
Review for error of law is an endemic problem in all legal systems, and the standard through which courts review such errors is much debated in and across administrative law in different countries. This chapter considers the ways in which this issue is dealt with in the UK, USA, Canada and the European Union. It reveals the variety of legal tests deployed by the courts and the difficulties attendant thereon. There is discussion of the rationale for the adoption of a particular test within a particular legal regime, and the underlying values that affect choice in this regard.
Rob Widdershoven and Paul Craig
This chapter discusses the judicial accountability of enforcement actions in which European Enforcement Authorities (EEAs) are involved, in the light of the fundamental European standards of the CFR and ECHR. In this respect three general weaknesses are highlighted. First, the framework of some EEAs facilitates the possibility of forum shopping by the authorities to the national legal order with the most far-reaching competences and the lowest procedural guarantees. Second, most regulatory EEA frameworks neglect essential procedural safeguards applicable to EEA investigations, such as the principle of legal professional privilege, the right not to incriminate oneself, and the ex-ante judicial authorisation of on-the-spot inspections. Third, in several areas it is uncertain whether individuals enjoy effective access to a court against EEA investigations. Most weaknesses should be addressed by the European legislator; some may be solved by the national courts.