유럽사법재판소의 입법과정심사

Abstract

Along with the development of legisprudence that explores how to ensure the ‘quality’ of legislation, ‘ex-ante’ control devices to improve the ‘rationality’ of the legislative process and legislative decision-making have been discussed. A representative example of such a proactive control device is ‘legislative impact assessment,’ adopted in the European Union legislative process and becoming increasingly common worldwide. As the legislative process is documented in the form of legislative impact assessments, judicial review bodies are also forced to consider the rationality of the legislative process in ‘ex-post’ constitutionality or legality judgments. Today, the European Court of Justice is the representative judicial review body that examines the legislative process in judicial review. Regarding the legislative process review emerging at the European Court of Justice, there is a conflict between the optimistic outlook that it will improve the quality of legislation by enhancing the rationality of the legislative process and the pessimistic outlook that it will damage legislative discretion by causing excessive judicialization. This article analyzes the decisions of the European Court of Justice that include argumentations that can be classified as legislative process review, identifies its methods and scope of application, and considers the relationship with the proportionality principle. Then, it provides implications for our constitutional court jurisprudence and the limitations of such judicial review.