Judicial Responses to the Financial Crisis

Economic, banking and budgetary issues are classic examples of areas where courts might be expected to tread lightly. That is especially true in the context of the kind of financial crisis experienced in Europe in 2008. These are matters that require a high level of specialist expertise; that are highly political; which are not easily reducible to legal standards; and which may demand rapid executive action in an emergency context. They are, in short, matters that are closely associated with the functions of the executive (and to an extent legislative) branches. Yet, the emergency measures introduced in the aftermath of the financial and banking crisis have been subject to judicial scrutiny at national (eg Collins v Minister for Finance) and European level (eg Case C-41/15 Dowling v. Minister for Finance). This paper will examine the approach adopted by domestic and European courts to measures adopted during the crisis, focusing in particular on the reluctance to endorse the argument that these areas are necessarily non-justiciable. Instead, the paper will review the role which the courts have asserted for themselves in these matters and consider the implications of it for the separation of powers.