Legislated Treaty Rights and the Legitimacy of Judicial Review

Abstract

Abstract This chapter discusses the legitimacy of judicial review of legislation by zooming in on three grounds of judicial review: legislative process review, ultra vires review, and fundamental rights review. It is shown that while legislative process review should not raise any concerns, ultra vires review and fundamental rights review are vulnerable to objections from institutional legitimacy and capacity. Currently, the Court of Justice of the European Union conducts ultra vires review according to appropriately deferential standards, but the level of scrutiny applied in fundamental rights review is too strict. The chapter also highlights the legislature’s unique position in the European Union institutional framework. It can more autonomously steer the course of the Treaties than is often thought, in part by negotiating and pushing back against unwanted judicial articulations of Treaty rights. Treaty rights can be, should be allowed to be, and often are, legislated rights.