IA & Courts
When ex ante evaluation meets ex
post judicial control
Alberto Alemanno
HEC Paris
focus
courts as actors of IA system
claim
evidence-based policy making
evidence-based judicial making
research questions
1. When IA meets courts ?
1. What happen when they meet?
1. Which role IA into judicial review?
When
Direct encounter:
Legality of IA questioned before Courts
Indirect encounter:
Legality of EU act questioned via IA
Direct Encounter
• IA is missing/not properly performed/revised
• Admissibility issue:
– Legal status?
– Reviewable act?
» Mere ‘preparatory act’
– Legal benchmark?
 Instance of maladmnistration? 229 TFEU
 Complaints before the Sec-Gen?
Indirect Encounter
• Legality of EU act questioned via IA
• EU act breached IA:
–Not performed or badly performed
–Not based on IA, it departs from it
Indirect Encounter (1)
‘Procedural’ check
Claim: illegality EU act IA not performed/badly performed
Is IA a binding step in decision-making?
Commission is not legislator, only Council/EP
Probably not, as shown by its soft law nature
« essential procedural requirement » under case law recognising selfimposed rules self-binding effect?
IA guidelines offer legal benchmark:
 Proportionate analysis/Minimum standards for consultation
Indirect Encounter (2)
‘Substantive’ check:
Claim: illegality of EU act as it departs from IA
‘legality check’ (e.g. conferral, proportionality,
subsidiarity)
Is there a duty to stick to the outcome of IA?
Should there be a rational relation btw the 2?
Afton – AG Kokott
The Commission’s IA analysis, “exercised on the basis of its own
discretion, does not prevent the other institutions participating
in the legislative procedure from drawing different conclusion
from the available information. Should the Court criticise the
difference in opinion between the Commission, on the one
hand, and the Council and the Parliament, on the other, the
institutional balance...would be called into question”.
yet
IA ‘legality check’ may play a role in the judicial
review of EU act
Which: IA as ‘aid to the parties’?
 Proportionality
1. Suitability
2. Necessity
3. stricto sensu ?
 Onus on the plaintiff (probatio diabolica)
 Quid if IA contains CBA (or some quantification)
Easier for the parties to submit evidence
More focus on third limb  nature of the principle might
chance
What: IA as an ‘aid to Courts’?
• Spain v Council, in examining proportionality,
stated that, notwithstanding limited judicial review,
EU institutions must « produce and set out clearly
the basic facts which had to be taken into account
as as the basis of contested act »
What better way than producing a IA?
Conclusions
WHEN: pre-draft & judicial review interact
WHICH: IA may serve as analytical support for Courts,
under parties’ pressure or sua sponte
WHAT: Impact on the nature of general principles and
their interpretation and in turn into the IA process itself
Prediction:
more evidence-based legislation
 more informed judicial scrutiny
regardless of IA ‘juridification’
IA
publication
legitimate
expectations
policymakers
COURTS
bibliography
• Alemanno, Alberto, The Better Regulation Initiative at the Judicial
Gate: A Trojan Horse within the Commission's Walls or the Way
Forward?, European Law Journal, Vol. 15, No. 3, 2009.
•
Alemanno, Alberto, A Meeting of Minds on Impact Assessment:
When Ex Ante Evaluation Meets Ex Post Judicial Control, European
Public Law, Vol. 17, No. 3, 2011.
• Alemanno, Alberto and Meuwese, Anne C.M., Impact Assessment of
EU Non-Legislative Rulemaking: The Missing Link of 'New'
Comitology, European Law Journal, Vol. 19, No. 1, 2013.