In legal limbo: Post-legislative guidance as a challenge for European administrative law

Abstract

Post-legislative guidance is a regular feature of European Union law. It serves to elaborate upon the meaning and practical implications of European framework norms. This paper presents a case study on post-legislative guidance adopted in the area of climate change and operating at the interface between European and international law. It examines whether and when post-legislative guidance of this kind may be regarded as susceptible to European-level judicial review. It argues that although the European courts privilege substance over form in deciding which measures may be challenged, post-legislative guidance will frequently escape the scrutiny of these courts. The paper argues that the European courts' case law is premised upon a series of distinctions that operate to obscure the nature and impact of guidance as a governance form and that the European courts should create enhanced opportunities for judicial review. The paper considers what, concretely, this argument might mean for the development of European administrative law. While this paper focuses upon post-legislative guidance in the area of environmental law, the administrative law analysis presented is relevant also beyond this specific substantive sphere.