The right to effective judicial protection is driving to a significant evolution of EU administrative law, especially in view of the multijurisdictional nature of the European administrative structure. This Article focuses on gaps in judicial protection arising from mutual recognition in transnational interactions between the administrative authorities of the EU’s Member States. It first sets the ground by examining the ingredients of the equation: The fundamental right to effective judicial protection, the concept and forms of mutual recognition, and the notion of European administrative space. Next, this Article assesses the judicial protection that private parties can obtain from national courts in these transnational scenarios. Procedure, substance, and deference are separately explored here, in order to draw out blind spots and deficiencies, as well as to suggest possible solutions to address at least some of them. This Article ends with a brief summary of the main findings.

The European Union (EU) is embedded in a pluralistic legal context because of the EU and its Member States’ treaty memberships and domestic laws. Where EU conduct has implications for both the EU’s international trade relations and the legal position of individual traders, it possibly affects EU and its Member States’ obligations under the law of the World Trade Organization (WTO law) as well as the Union’s own multi-layered constitutional legal order. The present paper analyses the way in which the European Court of Justice (ECJ) accommodates WTO and EU law in the context of international trade disputes triggered by the EU. Given the ECJ’s denial of direct effect of WTO law in principle, the paper focuses on the protection of rights and remedies conferred by EU law. It assesses the implications of the WTO Dispute Settlement Understanding (DSU) – which tolerates the acceptance of retaliatory measures constraining traders’ activities in sectors different from those subject to the original trade dispute (Bananas and Hormones cases) – for the protection of ‘retaliation victims’. The paper concludes that governmental discretion conferred by WTO law has not affected the applicability of EU constitutional law but possibly shapes the actual scope of EU rights and remedies where such discretion is exercised in the EU’s general interest.

Third pillar – European Arrest Warrant – Nature of third pillar – Litigation before national constitutional courts – Primacy of EU law over national law – Differing national attitudes with regard to the status of third pillar law – Process of approximation: first pillar and third pillar – Achieving consistency through primacy of third pillar – Judicial protection of position of individual – Lisbon Treaty and the unification of EU law

The contribution of subnational constitutions to the development of constitutional law – Subnational recognition of a diversity of fundamental rights as symbol of constitutional autonomy – Identical, less protective and more protective subnational rights – Diversity in sources, uniformity in application – Positive rights and the provision of public goods – federal courts and state courts: federal chemistry and constitutional laboratories

Rulings in the cases of OMPI, Sison and Segi – Violation of the right to a fair hearing, the duty to give reasons, and the right to judicial protection – Jurisdiction to review lists of terrorist suspects – Extension of Article 35 TEU – Preliminary rulings on common positions – Improvements of the listing procedure – New legal bases for restrictive measures under the Treaty of Lisbon – Recommendations how to reform the autonomous EU listing procedure further

The challenges for the system of judicial protection of the EU spring from two main developments: first, the enlargement of the EU, which inevitably affects all institutions of the Union, most notably their organisational structure and modus operandi, second, the deepening and widening of the areas falling within the scope of competences of the EU. Article I-28 Draft Constitution states that the Court of Justice of the EU shall include the ECJ, the High Court and specialised courts. These courts, together with the national courts of all levels, constitute the intricate nexus offering judicial protection in the EU. The issues that dominated debates on the reform of the system of judicial protection varied from the amendment of Article 230.4 EC on the locus standi of applicants, to the impact of the incorporation of the Charter of Human Rights and to the competences of the ECJ in the areas of the second and third pillar. They all relate to the deepening and widening of the Union through this Draft Constitution.