The Court of Justice of the European Union's review of uncertain scientific appraisals: what role for the Impact Assessment Guidance?

Abstract

This contribution examines the extent to which the European Commission Impact Assessment (IA) Guidance could help the Court of Justice of the European Union to operationalise its review of the application of general principles of EU law such as the principle of proportionality, the duty to state reasons and the duty of care when called upon to review uncertain scientific appraisals underlying EU legislative acts. In managing and regulating wicked problems, the EU institutions must base their actions on uncertain scientific appraisals. Impact assessment is a tool used by the Commission to assess the foreseeable direct and collateral effects (the impacts) of a regulatory project based on evidence. It aims to provide policymakers with the best accurate description of a problem and the consequences of the implementation of a policy option. It should therefore give due consideration to uncertainties in evidence used which may trump IA results. The contribution discusses the conditions under which the IA Guidance could be used as a framework to operationalise the judicial review of the application of the above-mentioned principles and assesses whether these conditions are met in the current state of EU law.