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

Abstract

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. IA, the privileged ex ante evaluation tool adopted by the EU to identify the expected effects of new legislation, by offering a ‘legality check’ of each Commission proposal well before its adoption, may serve – as illustrated by the recent judgments in Vodaphone and Afton – not only as ‘aid to the legislator’, but also as an ‘aid to the parties’ and an ‘aid to court’ within the ex post review of adopted legislation. After systematizing the different encounters that might occur between 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.

Keywords: EU Admnistrative Law, Better Regulation, Impact Assessment, Judicial Review, Vodaphone judgment, Afton judgment

JEL Classification: K00, K20, K23, K33, K40, K41, L50