The ‘Checks and Balances’ Doctrine in Member States as a Rule of EC Law: The Cases of France and Germany

Abstract

Abstract: Though the impact of EC law on the legal status of national powers has been fairly well examined, little attention has been paid to the overall evaluation of the relations developed between national authorities. The paper argues that the mutation of the Judiciary and the Executive role vis‐à‐vis the Legislature appears to be an application of an emerging doctrine in EC public law that conspicuously resembles the ‘Checks and Balances’ theory of American constitutionalism. The action of one public authority is—or must be—countered by the reaction of another for the benefit of EC law. Apart from identifying the features of this ‘principle’ in comparison to its equivalent American doctrine, the paper deals with the question of a possible coexistence of this new model of governance with the traditional one. The comparative perspective is necessary here. Whereas in Germany the constitutional model appears to cope with European demands, in France it seems largely opposed to such a dynamic conception of the separation of powers.