In search of the political question doctrine in EU law

Abstract:

There are situations in EU law where questions posed to the Court of Justice of the European Union can be considered political questions. Parties before the Court have made a number of attempts to claim that for such political questions, the Court ought to adopt the political question doctrine, and decline to provide a judgment.

To date, the Court has refused to explicitly consent to such requests, and it would appear that there is no obvious political question doctrine in EU law. Yet, on closer inspection, there are hints of the doctrine shining through the Court’s case law. The breadth of the EU law means that political questions can arise in many different legal disputes. In particular, given that some matters come close to political developments and choices, it is conceivable that the Court could invoke the political question doctrine at some future juncture.

This article goes in search of the doctrine in EU law, and highlights where the Court ought to invoke the doctrine within the constitutional design of the EU treaties in defined circumstances. The contribution embraces the view that if the doctrine is invoked, the Court should set down a specific test with determinable criteria for what constitutes a political question, which it has not done to date.