EU Prior-Involvement Review

Abstract

This chapter examines the mechanism on prior involvement of Luxembourg Court as established by the DAA, and the main ambiguities which the autonomy of EU law requires to keep sealed therein. This analysis is made against a complex background of EU law autonomy, EU peculiar institutional features and the Strasbourg Court’s natural jurisdictional function (subsidiary review). The chapter responds to the research sub-question: ‘What are the legal implications that the use of the prior-involvement mechanism may reflect, and how can one deconstruct its mechanics to make it readable to the individual claimant?’ The chapter therefore provides an in-depth examination of the prior-involvement provisions of the DAA and circumstances when they may be utilized, paying singular attention to the effect on norms that may become reviewed and jurisdictional means that may become utilized under this procedure both at EU law and Strasbourg level. This is done by cautiously assessing the origins of norms that may become reviewed in the course of prior involvement, and eligibility means which EU would need to fulfill to become entitled to request this procedure. Although prior involvement is argued as a privilege for EU, the chapter also tries to depict legal implications which Luxembourg Court will face to assess the Convention-violating EU law provisions, something that is tackled both in terms of scope of review and nature of effect of Luxembourg’s filters. Besides examining the conditions which EU would need to fulfill to operate the prior involvement procedure, this chapter also tackles the current EU Treaties’ spaces which may be utilized to reconcile this procedure with the EU Treaties’ instructions. The chapter in addition analyzes the integrity of this procedure in EU current legal remedies’ system, offering a number of arguments in relation to the fact that this new procedure may introduce certain implicit Treaty changes in EU law and institutional structure. This is tackled from the perspective of whether prior involvement introduces a new remedy, to a degree which also silently amends the EU Treaties. The chapter concludes that prior involvement procedure may perhaps implicate certain aspects of the EU legal remedies’ system, however it seems a very good device to defend the EU Court’s exclusive jurisdiction.