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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
? Two rationales
? 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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