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Decentralized Judicial Review

This chapter explores the practice of decentralized judicial review and its implications for the European Court of Justice’s relationship with Member State courts. The division of judicial powers in the EU is assessed with a focus on justification and proportionality review. Drawing on the data from the case law survey, the analysis sheds light on the role allocation between European and national judges in free movement disputes. It investigates to what extent the distinctions between law/fact and interpretation/application capture their respective functions. The findings show that the power of Member State courts has grown significantly over time, with the Court of Justice delegating an ever greater number of decisions to the domestic judiciaries. As a result of this, EU free movement law is being increasingly shaped at the national level.