Competence Versus Competency: Judicial Review of Impact Assessments by the Court of Justice of the European Union

Abstract

At a time in which regulatory ex ante instruments increasingly fulfill the role of legitimation of legislative action in the European Union (EU), we analyse why and how the Court of Justice of the EU (CJEU) should assess regulatory impact assessments (IA). Although intra and inter institutional checks in order to secure the quality of IAs have already been instituted, we still identify several pitfalls of an exclusive non-judicial review system. To effectively engage with IAs review, we argue, it is necessary for the CJEU to amass competence – i.e. legal capacity – to engage with instruments used to achieve regulatory quality, as well as gradually enhance its competency – i.e. professional ability – to decide upon the validity and reliability of scientific evidence underlying IA reports.

Keywords: Court of Justice of the European Union, impact assessment, judicialization, law making, proportionality