Ex post review of legislatorial prognoses by the European Court of Justice: the temporal dimension of rational law-making

Abstract

ABSTRACTJudicial review of legislatorial prognoses may either rely exclusively on the knowledge available at the time of legislation (ex ante perspective) or also take later developments into account (ex post perspective). The European Court of Justice (ECJ) is not fully coherent in its approach. While it has predominantly taken the ex ante perspective, there are some notable exceptions. The paper examines the need for ex post review of legislatorial prognoses primarily from a doctrinal methodology standpoint, but to a limited extent also from an interdisciplinary and a comparative law perspective. It argues that the Court ought to be less hesitant with respect to such. This result is supported namely by the general tendency towards stricter review under the European Charter of Human Rights, the ECJ’s recent case law on Commission decisions as well as by policy arguments. With respect to the intensity of review, a distinction is warranted: European legislation is subject to less strict review. There is an elevated evidentiary threshold with respect to the evidence required and the interests involved. Even where the prognosis is erroneous, the law is also in general not immediately void. Instead, the legislator is merely obliged to adapt the law. By contrast, legislation by Member States based on defective prognoses must be brought in line with the EU law requirements immediately.