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Lecture 2: Process
ProcessContent licability of Trigger/app Rationale processSources of
Lisbon Treaty (TEU + TFEU)
Common law from 17th century onwards o Duty to give reasons: art 296 o Modified ultra vires v common law o Publication theories
Limited statute o Access to documents
Not markedly different from UK
Similar instrumental & non-instrumental rationales to EU
Judges more openly reflect on underlyin o Instrumental rationale: more likely to reach correct rationale - even if not in terms conclusion on substance of case Depends on the source.
Must show some right, interest or legitim
Treaty treaty article will provide trigger expectation justifying some process righ o Eg duty to give reasons - applies to every form of
General approach is for liberal interpret action taken by Community: incl primary, secondary rights, interests falling short of rights, an
Legislation setting out code set out in the Code
Appears to reflect balancing exercise in o Can be supplemented by general principles Matthews v Elridge (US): o Importance of interest infringed
Treaty / general principles of law determined by the Court o Likely value of additional process r o Rules vary according to subject-matter
Link between process rights & substantive review - Process rights reinforce substantive review o Duty to give reasons - facilitates proportionality / rationality review by making reasons for decision transparent o "Duty of diligent examination" - duty on administration on the cusp of procedural / substantive revie
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