From Better Regulation to Better Adjudication?

The paper examines the role of the EU’s Impact Assessments in the adjudicative process of the CJ with regard to subsidiarity and proportionality. The paper first explores and explains Impact Assessments as part of the Better Regulation Agenda and its role for the rule of law. Second, it explores the Impact Assessments in the Courts review of proportionality as a procedural element. Then ways to improve the use of Impact Assessments in the case law are explored. Finally, constitutional limits to the use of Impact Assessments by the Court are explored. The paper cautions against extending the adjudicative scope of subsidiarity and proportionality to a more substantive review of the merits. Instead, we suggested to take the Commission’s commitment to Impact Assessments more seriously and hold the Commission to account with regard to this commitment thereby starting a feedback loop where better regulation leads to better adjudication and vice-versa