A Meeting of Minds on Impact Assessment - When Ex Ante Evaluation Meets Ex Post Judicial Control

This article aims at exploring the interactions that may arise from the European institutions' increasing reliance on ex ante evaluation mechanisms of proposed legislation, such as Impact Assessment (IA), and ex post judicial review of adopted legislation. By opening the pre-legislative scrutiny of the work-product of the EU administrative state to all interested parties, IA inevitably exposes the Commission to extra scrutiny during a phase which has historically been more informal, ‘confidential’ and “in where thebureaucrats mediate and bargain among conflicting interests”. In these circumstances, as illustrated by the recent judgments in Vodaphone and Afton, IA may serve not only as ‘aid to the legislator’, but also as an ‘aid tothe parties’ and an ‘aid to court’ within the ex post review of adopted legislation. After systematizing the different encounters that might occurbetween IA and judicial review, this article anticipates, by relying on a few examples, a ‘meeting of minds’ between the EU legislature and the judiciary on impact assessment.

 

EU law, Better Regulation, Impact Assessment, Oversight, Judicial Review, European Court of Justice