The Better Regulation Initiative at the Judicial Gate: A Trojan Horse within the Commission's Walls or the Way Forward?


European Law Journal

mai 2009, vol. 15, n°5, pp.382-401

Départements : Droit et fiscalité, GREGHEC (CNRS)

Mots clés : EU law, Better Regulation, Regulatory impact assessment, Judicial Review, Proportionality principle, Cost-benefit analysis, European Court of Justice

While most academic attention is currently being paid to the goals and to the merits of the Better Regulation initiative (BR), this article examines the most immediate legal implications stemming from reliance on the main tools of BR (such as systematic impact analysis and consultation procedures on proposed legislation) within the European legal order. Since the BR package boils down into a set of regulatory requirements, enforcement issues are likely to arise. For instance, what if the Commission omits to undertake (or badly performs) an impact assessment (IA) of a legislative proposal? Who is currently in charge of ensuring the Commission's compliance with these requirements? After illustrating the existing administrative oversight mechanisms designed to ensure effective compliance with BR requirements, by focusing notably on the recently-established Impact Assessment Board, the article examines to what extent the European courts may be called upon to review the respect paid to the requirements of BR by the Commission services. To prevent the BR initiative from turning into a Trojan Horse within its own walls, the Commission is likely to comply with these regulatory requirements, thereby paving the way for the initiative's success. Keywords: EU law, Better Regulation, Regulatory oversight, European Ombudsman, Judicial Review, EU Courts