The Borelli Doctrine revisited : three issues of coherence in a landmark ruling for EU administrative justice

Abstract

The aim of this article is to examine through the lens of coherence the doctrine established in the Borelli case-law, which has become a landmark case in administrative justice concerning bottom-up composite procedures. This paper will address three common issues relating to the coherence of the Borelli doctrine. First, its coherence with regard to important principles of EU constitutional law, such as the right to effective judicial protection. Second, the issue of the coherence of the criteria of judicial review established by Borelli for national measures with the criteria used by the Court when it is required to assess the legality of EU measures. Third, the discrepancy, illustrated by the Borelli case, between the institutional reality of EU composite administration and the EU system of administrative justice. The paper submits that the Borelli doctrine, which I argue entails two distinct principles, must be placed in the constitutional context in which it was developed. I aim to support the claim that Borelli is, in itself, a coherent solution for the problem it addresses, and that the source of its insufficiencies is not in the case law, but rather in the EU's system of administrative justice itself.