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The EU's Decision TrapsComparing Policies$
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Gerda Falkner

Print publication date: 2011

Print ISBN-13: 9780199596225

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780199596225.001.0001

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Overcoming the Joint-Decision Trap in Single-Market Legislation

Overcoming the Joint-Decision Trap in Single-Market Legislation

The Interplay between Judicial and Legislative Politics

(p.38) 3 Overcoming the Joint-Decision Trap in Single-Market Legislation
The EU's Decision Traps

Susanne K. Schmidt

Oxford University Press

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

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