Adjudication of socioeconomic rights by the CJEU: towards a new form of judicial review?

Abstract

The goal of this chapter is to examine the role of the Court of Justice of the European Union (CJEU) in reviewing measures enacted in the context of the euro crisis against the backdrop of the EU Charter of Fundamental Rights. The overall research question is whether the CJEU's enforcement of socioeconomic rights might be legitimately strengthened, and if so how. First, I will address the main challenges to judicial review. The exceptionality of the economic crisis, the heterogeneous array of sources of Euro-crisis law, and the contested justiciability of socioeconomic rights have hindered a robust review by the CJEU. I will argue that the CJEU has moved from total deference to a weak form of review. Next, the analysis will follow a normative track. If we agree that there are theoretical and practical reasons against a strong from of judicial review for the adjudication of socioeconomic rights, then what model of judicial review best fulfills the EU's primordial commitment to the rule of law? I will consider relative advantages of procedural versus dialogic approaches to judicial review in the field of socioeconomic rights. In the end, I will argue that a dialogic approach better acknowledges the limits on the courts' authority to adopt a pure, strong-form approach to the judicial enforcement of socioeconomic rights, but also gives them more capacity and responsibility to counter political or structural factors that hinder the realization of socioeconomic rights than the procedural model does.