Overcoming the Joint-Decision Trap in Single-Market Legislation

Susanne K. Schmidt

in The EU's Decision Traps

Published in print May 2011 | ISBN: 9780199596225
Published online September 2011 | e-ISBN: 9780191729140 | DOI:
Overcoming the Joint-Decision Trap in Single-Market Legislation

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The chapter discusses the interplay between judicial and legislative politics as a possible exit from the joint-decision trap. The extensive interpretation by the European Court of Justice of the four freedoms and European competition law allows a ‘direct effect’ of the EU's Treaties on potentially any political issue. The EU legislature in such instances must decide on the basis of case law, which sets the default condition. At times, legislative measures even go beyond existing case law. Taking the examples of the Services Directive and the Regulation on Mutual Recognition for Goods, it is argued that the ‘fuzzinesss’ of case law may allow legal certainty to be restored only by being more radical than the Court.

Keywords: joint-decision trap; single market; European Court of Justice; Commission; Cassis de Dijon ruling; regulation of goods; Services Directive; mutual recognition

Chapter.  8160 words. 

Subjects: European Union

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