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Process Notes

BCL Law Notes > Comparative Public Law Notes

This is an extract of our Process document, which we sell as part of our Comparative Public Law Notes collection written by the top tier of Oxford students.

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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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