Judicial Review and Judicial Deference In EU Law

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This chapter is concerned with deference as a concept in EU law, and the way in which it informs judicial review. The analysis is divided into four parts. The second part is concerned with the meaning of deference. There is discussion as to why it is important to disaggregate the meaning of the concept from the word itself, which is followed by explication of the relationship between the concept and the standard of judicial review employed by the courts. The third part addresses the relationship between the concept of deference, and the rule of law. The basic normative connection is that it 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. There is further refinement of the factors that should be taken into account when determining this issue. The fourth part considers the concept of deference in EU law, which is evident in three doctrinal contexts: review for proportionality, review for manifest error, and review for human rights. The role played by deference is then examined in greater detail in relation to proportionality and manifest error review. The final substantive part of the chapter contains reflections on the intensity of review in EU law, and the degree of deference that the EU courts are willing to accord to the administration. The chapter concludes with points relating directly to the application of these precepts to agencies.