European Papers (Jul 2020)
Transnational Judicial Review in Horizontal Composite Procedures: Berlioz, Donnellan, and the Constitutional Law of the Union
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2020 5(1), 41-70 | Article | (Table of Contents) I. Introduction. - II. The case of Berlioz: towards transnational judicial review. - III. Transnational judicial review and the constitutional law of the Union. - III.1. The right to an effective judicial remedy. - III.2. Other principles of constitutional law of the Union. - IV. The case of Donnellan: one step forward? - IV.1. Directive 2010/24 and the case of Donnellan. - IV.2. Assessment. - V. Concluding remarks. | (Abstract) The policy area of cooperation between fiscal authorities of Member States of the EU has historically been characterised by advanced patterns of administrative integration which, coupled with the sensitivity of the subject-matter in terms of potential impingement on taxpayers' rights, have made all the more problematic the gaps in effective judicial protection generally to be found in composite procedures set up by EU administrative law. This Article analyses two recent rulings delivered by the Court of Justice where what might be labelled as transnational judicial review has for the first time been accepted by the Court: the possibility that, in so-called horizontal composite procedures, the judiciary of the State to which the authority adopting the final act of the procedure belongs review, along with such latter act, preparatory acts adopted in earlier stages of the procedure by authorities of a different Member State. It strives to read the rulings against the broader background of the judicial dialogue currently engaged into by the European Court of Human Rights and the Court of Justice on the principle of mutual trust, and it argues that the progressive solution reached by the Court of Justice in those cases can be applied across all areas of EU administrative law, pivoting on the right to an effective judicial remedy, but also on other general principles of EU constitutional law (and, in particular, the principles of autonomy and uniformity of EU law).
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