Reviewing High Politics. A Methodology for the Justiciability of EU-US Legal Relations

Despite the waning political importance of the European Union (EU) to the US, transatlantic legal relations are increasing in number in recent times. The Court of Justice has had limited opportunities to review this ‘high politics’. The case of EU-US relations potentially raises an extraordinary range of jurisdictional, constitutional and theoretical questions. The objectives of EU-US legal relations are expressly dominated by State-security concerns. A noteworthy feature of EU-US laws governing the data transfer of citizens is the explicit statement of justiciability therein, a constitutional expression for the application of the rule of law. Yet the concept of justiciability or a political question doctrine is embryonic in EU Law. The present analysis explores the concept of justiciability in EU law using three casestudies of EU-US relations. The application of explicit justiciability principles to EU-US relations is advocated here as a methodological tool for the judicial review of EU-US relations.