The uncertain structure of process-based proportionality review in the EU: looking back at the debate on the CJEUs Weiss ruling and the German Federal Constitutional Courts PSPP ruling

Abstract

The obligation to provide reasons (e.g. in Art. 296 TFEU) may appear rather a simple and straightforward, but in actual practice - as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht ("BVG") amply demonstrate - is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined "good" reasons for those of the reviewee decisionmaker - legislatures, administrative agencies, or, as in Weiss, the European Central Bank (ECB). On the other side lies the concern with judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law's remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse - the neo-Fullerian concept of an "internal morality of law" (Sunstein / Vermeule) and democratic experimentalism (Sabel / Kessler) - this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review.