DOI: 10.5235/17521467.6.3.

257

PRELIMINARY COMMENTS ON THE ROLE OF

COURTS AS REGULATORY WATCHDOGS
Patricia Popelier*

Abstract
This article is an introduction to the special issue on the role of courts as
regulatory watchdogs. It offers an oversight of process review and the use of
regulatory tools in administrative and constitutional adjudication. In discussing
the most common objections against attributing to courts a role as regulatory
watchdog, this article touches upon several aspects related to this topic and
introduces the contributions in this issue.

Keywords
Regulatory reform; judicial review; procedural rationality; proportionality;
efficiency

A. INTRODUCTION

The past decades witnessed the emergence of regulatory reform programs

worldwide, leading to a proceduralization of the decision making process. The
legal implications thereof have been explored in scholarship,1 but did not yet
grow into topical issues of academic debate. Yet, in practice, administrative
process review by courts is gradually developing into a broader technique of
constitutional adjudication. Proportionality analysis takes procedural
requirements into account, in particular when broad deference hinders a
substantive assessment of legislation, leading to a point of convergence of
regulatory reform and process review. This convergence is the focus of this
special issue, which questions the extent to which courts should act as ‘regulatory
watchdogs’.2

*
Patricia Popelier is Professor in Constitutional Law and Legislative Studies at the University of
Antwerp and Director of the Research Group on Law and Government.
1
See in particular the special issue in (2011) 3 European Public Law, edited by A. Meuwese and P.
Popelier.
2
This term was first used in: P. Popelier, ‘Governance and Better Regulation: Dealing with the
Legitimacy Paradox’ (2011) 3 European Public Law 555, 565. It was explored further in Part IV of
the edited volume P. Popelier, A. Mazmanyan and W. Vandenbruwaene (eds.), The Role of
258 Popelier

B. OBJECTIONS AGAINST JUDICIALIZATION OF REGULATORY

REFORM

In her contribution to this special issue, Elaine Mak elaborates on the pros and
cons of judicial review of regulatory quality and regulatory tools from an
institutional choice perspective. Ittai Bar-Siman-Tov, for his part, explores the
theoretical underpinnings of the justifications for and objections to procedural
review. In this introduction, we limit ourselves to an overview of the most
common objections. At first sight, the shift to judicialization of regulatory reform
tools is far from obvious, for several reasons. Firstly, regulatory reform on the one
hand and judicial review on the other pursue different objectives. Regulatory
reform is unequivocally linked to policy goals of competitiveness, innovation and
economic growth.3 The question then rises whether the judicialization of
regulatory reform tools implies a market-liberal bias, contrary to expectations of
judicial neutrality.4 Secondly, policy makers are obviously not in favour of
judicialization. On the contrary, the European Commission expressed its
preference for soft law as a tool for the implementation of the EU regulatory
program, because legal rules ‘would create excessive rigidity and risk slowing the
adoption of particular policies’.5 In the U.S., indeed, intensive judicial review of
the rationality of agency policies is criticized for having turned the notice-and-
comment-rulemaking into ‘a burdensome, sclerotic process’.6 Excessive
judicialization, then, might lead to ossification of regulatory reform. Thirdly, the
European Commission’s quote reveals the twofold role of soft law in regulatory
reform. On the one hand, regulatory requirements are laid down in soft law such
as administrative guidelines and procedures. On the other hand, regulatory reform

Constitutional Courts in a Context of Multilevel Governance (Intersentia 2012). With thanks to Anne
Meuwese who gave us the inspiration for this term.
3
OECD, Guiding Principles for Regulatory Quality and Performance (OECD 2005). See also
Commission, ‘Better Regulation for Growth and Jobs in the European Union’ (Communication) COM
(2005) 97 final; ‘The Path to Strong, Sustainable and Balanced Growth’ (BIS, November 2012)
<http://www.bis.gov.uk/assets/biscore/corporate/docs/p/10-1296-path-to-strong-sustainable-and-
balanced-growth.pdf> accessed 31 December 2012 (for the link between economic growth and better
regulation in the UK); I. Lynch-Fannon, ‘Legislative Policy, Law and Competitiveness: A Mysterious
and Difficult Relationship in the EU’ (2009) 1 European Law Journal 98 (for a critical view).
4
In this respect, see the observations in: K. Meßerschmidt, ‘The Good Shepherd of Karlsruhe: The
“Hartz IV” Decision on Unemployment Benefits and Social Allowances – A Good Example of
Regulatory Review by the German Federal Constitutional Court?’ in P. Popelier, A. Mazmanyan and
W. Vandenbruwaene (eds.), Role of Courts in a Context of Multilevel Governance (Intersentia 2012).
We may expect, however, judicial activism by the ECJ to find more acceptance, in so far as regulatory
reform purports a commonly shared economic goal. cf. J. Bengoetxea, N. MacCormick and L. M.
Soriano, ‘Integration and Integrity in the Legal Reasoning of the European Court of Justice’ in G. de
Búrca and J.H.H. Weiler, The European Court of Justice (Oxford University Press 2001) 43.
5
Commission, ‘European Governance’ (White Paper) COM (2001) 428 final, 17.
6
S. Shapiro and R. Murphy, ‘Eight Things Americans Can’t Figure Out about Controlling
Administrative Power’ in H. Hofmann and R. Weaver (eds.), Transatlantic Perspectives on
Administrative Law (Bruylant 2011) 16–19.

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 Preliminary Comments 259

increasingly turns to soft law as an alternative for traditional regulatory tools. Soft
law and judicial review make an uncomfortable pair, with soft law usually
confined to its use as an aid to the interpretation of open textured terms or legal
principles,7 but in some cases given more far-reaching legal effect by courts. 8 In
this issue, both Emilia Korkea-Aho and Elaine Makfurther explore this strained
relation between soft law and judicial review. Fourthly, a legal duty to give
scientific evidence to support legislative choices and assertions may deprive
political primacy, when scientific reasoning threatens to replace political decision
making.9 Democratic legitimacy requires a degree of due deference towards
legislative choices, consisting in a balancing act of different values and priorities.
A last objection concerns the limited capacities of courts to judge the quality of
administrative procedures within the regulatory process. 10 It has been suggested
that other professions than lawyers are better placed to assess the evidence-based
quality of the regulatory process. 11 In this regard, the European Commission
draws attention to the Impact Assessment Board, which offers an independent
expert review of impact assessments, while remaining nested within the internal
administrative decision-making process.12

C. A FUNDAMENTAL RIGHTS APPROACH

Although better regulation programs are undeniable part of a competitive market

strategy, Helen Toner in 2006 marked the potential of integrated impact
assessments – the central tool in contemporary regulatory reform programs – to

7
J. Bengoetxea, N. MacCormick and L. M. Soriano, ‘Integration and Integrity in the Legal Reasoning
of the European Court of Justice’ in G. de Búrca and J.H.H. Weiler, The European Court of Justice
(Oxford University Press 2001) 53.
8
E. Korkea-Aho, ‘EU Soft Law in Domestic Legal Systems: Flexibility and Diversity Guaranteed’
(2009) 16 Maastricht Journal of European and Comparative Law 271, 277–280. See e.g. regarding
the potential self-binding effect of EU regulatory guidelines such as the IIA: A. Alemanno, ‘The
Better Regulation Initiative at the Judicial Gate: A Trojan Horse within the Commission’s Walls or
the Way Forward?’ (2009) 15 European Law Journal 382; D. Keyaerts, ‘Ex ante Evaluation of EU
Legislation Intertwined with Judicial Review? Comment on Vodafone Ltd v. Secretary of State for
Business, Enterprise and Regulatory Reform (C-58/08) (2010) 35(6) European Law Review 869, 881–
882.
9
M. Dawson, New Governance and the Transformation of European Law (Cambridge University
Press 2011) 261.
10
P. Craig, EU Administrative Law (2nd edn., Oxford University Press 2012) 400–445; H. Hofmann,
G. Rowe and A. Türk, Administrative Law and Policy of the European Union (Oxford University
Press 2011) 203, 797–799 (both articles on the limits of administrative judicial review).
11
K. Meßerschmidt, ‘The Good Shepherd of Karlsruhe: The “Hartz IV” Decision on Unemployment
Benefits and Social Allowances – A Good Example of Regulatory Review by the German Federal
Constitutional Court?’ in P. Popelier, A. Mazmanyan and W. Vandenbruwaene (eds.), Role of Courts
in a Context of Multilevel Governance (Intersentia 2012).
12
Commission, ‘Smart Regulation in the European Union’ (Communication) COM (2010) 543 final,
6.

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260 Popelier

monitor fundamental rights protection in the legislative process. 13 In his

contribution to this issue, Messerschmidt notes that standards of good law-
making developed by the German Constitutional Court, are rooted in the
protection of fundamental freedoms. Case law of the European Court of human
rights (ECtHR) confirms this orientation towards fundamental rights protection. 14
In the landmark Hatton judgments regarding aircraft noise pollution, the Court,
while recognising that it had to exercise restraint in the scrutiny of the substantive
merits of the case, noted that the governmental decision process must necessarily
involve ‘appropriate investigations and studies’ and confirmed its power to
review the decision-making process.15 In fostering arguments of procedural
rationality, process review, then, provides for an interesting golden mean,
enabling courts to protect persons against arbitrary government intervention,
when complexity or the politically salient nature of a decision prevents the court
from assessing the substantive merits of the case. The ECtHR’s core concern here
is ensuring that government interference in fundamental rights relies upon a
reasoned balance of interests. Hence, the ECtHR does not impose upon
lawmakers the obligation to follow a well-defined procedure, using particular
regulatory tools. Instead, the use or absence of regulatory tools functions as a
proxy for the rationality of government intervention or ‘fairness’ of the decision-
making process.16 For example, although the ECtHR does not require the use of
impact assessments, it follows from cases such as Lecarpentier, Malysh or
Konstantin Markin that the failure to ground assertions about the necessity of
government interference or non-intervention upon facts and figures, may lead to
the finding of a violation of the Convention. 17 Likewise, while the Court does not
impose the practice of consultation procedures, it does appreciate the use of
consultation procedures, allowing for an informed and careful balance of
interests.18 Of decisive importance is the opportunity for concerned parties to
make recommendations, rather than the method of consultation. 19

13
H. Toner, ‘Impact Assessments and Fundamental Rights Protection in EU Law’ (2006) European
Law Review 316.
14
P. Popelier, ‘The Court as Regulatory Watchdog: The Procedural Approach in the Case Law of the
European Court of Human Rights’ in P. Popelier, A. Mazmanyan and W. Vandenbruwaene (eds.), The
Role of Constitutional Courts in a Context of Multilevel Governance (Intersentia 2012) (for an
extensive overview of the ECtHR case law in this respect).
15
Hatton v. United Kingdom, no. 36022/97, ECHR 2001; Hatton v. United Kingdom [GC], no.
36022/97, ECHR 2003-VIII.
16
Zehentner v. Austria, no. 20082/02, ECHR 2009; Kay v. the UK, no. 37341/06, ECHR 2010.
17
Lecarpentier v. France, no. 67847/01, ECHR 2006; Malysh and Others v. Russia, no. 30280/03,
ECHR 2010; Konstantin Markin v. Russia, no. 30078/06, ECHR 2010.
18
Hatton v. United Kingdom [GC], no. 36022/97, ECHR 2003-VIII; Evans v. the UK [GC], no.
6339/05, ECHR 2007–I; A.,B. and C. v. Ireland [GC], no. 25579/05, ECHR 2010.
19
Zammit Maempel v. Malta, no. 24202/10, ECHR 2011.

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 Preliminary Comments 261

D. CONVERGENCE OF PROPORTIONALITY REQUIREMENTS AND

REGULATORY STANDARDS

The ECtHR case law reveals that better regulation tools are used as indicators to
assess the reasonable or justified nature of laws affecting fundamental rights. In
particular, they shape arguments of procedural rationality as a part of the
proportionality analysis inherent to fundamental rights review. This enables
courts to exercise what Ittai Bar-Simon-Tov in this issue calls ‘semiprocedural
judicial review’.20 As Klaus Messerschmidt demonstrates in his contribution to
this issue, the same trend is reflected in the case law of national constitutional
courts, as well as the European Court of Justice, throughout the full scope of
constitutional jurisdiction.21 Hence, more is at stake than the incorporation of
human rights protection as another finality of the better regulation program.
Instead, economic efficiency standards are inserted in the legal proportionality
principle.22 Better regulation programs regard efficiency and effectiveness as key
principles or quality standards.23 Regulatory tools operationalize these standards
through procedural requirements. For instance, impact assessment procedures
generally consist of multiple steps, implying (i) a problem analysis, (ii)
determination of objectives and (iii) the development, impact analysis and
comparison of alternative options.24 The proportionality analysis, rooted in

20
I. Bar-Siman-Tov, ‘The Puzzling Resistance to Judicial Review of the Legislative Process’ (2011)
91 Boston University Law Review 1915, 1924.
21
For an analysis, see also: K. Meßerschmidt, Gesetzgebungsermessen (Nomos 2000); K.
Meßerschmidt, ‘The Good Shepherd of Karlsruhe: The “Hartz IV” Decision on Unemployment
Benefits and Social Allowances – A Good Example of Regulatory Review by the German Federal
Constitutional Court?’ in P. Popelier, A. Mazmanyan and W. Vandenbruwaene (eds.), Role of Courts
in a Context of Multilevel Governance (Intersentia 2012) (regarding the case law of the German
BundesVerfassungsgericht); D. Keyaerts, ‘Courts as Regulatory Watchdogs: Does the European Court
of Justice Bark or Bite?’ in P. Popelier, A. Mazmanyan and W. Vandenbruwaene (eds.), The Role of
Constitutional Courts in a Context of Multilevel Governance (Intersentia 2012).
22
D. Keyaerts, ‘Courts as Regulatory Watchdogs: Does the European Court of Justice Bark or Bite?’
in P. Popelier, A. Mazmanyan and W. Vandenbruwaene (eds.), The Role of Constitutional Courts in a
Context of Multilevel Governance (Intersentia 2012). See also: K. Meßerschmidt, ‘Efficiency and the
Principle of Proportionality: Shall Lawyers Learn from Economists?’ (2001) EuroFaculty Papers Riga
<http:// www.eurofaculty.lv> accessed 31 December 2012 (writing that ‘the thesis that.efficiency and
proportionality are two facets of the same principle’). K. Meßerschmidt, ‘Ökonomische Effizienz und
Juristische Verhältnismässigkeit: Gemeinsames und Trennendes’ in E. Gawel (ed.), Effizienz im
Umweltrecht: Grundsatzfragen Wirtschaftlicher Umweltnutzung aus Rechts-, Wirtschafts- und
Sozialwissenschaftlicher Sicht (Nomos 2001) 219–251 (for a more extensive study in German).
23
Commission, ‘European Governance’ (White Paper) COM (2001) 428 final, 8; OECD, Guiding
Principles for Regulatory Quality and Performance (OECD 2005) 3; Decision of the Flemish
Government of 24 October 2003 regarding the principles of good regulation,
VR/2003/24/10/DOC.1039 and VR/2003/07.11/DOC.1039bis. See also Commission, ‘Smart
Regulation in the European Union’ (Communication) COM (2010) 543 final, 4 (considering the
evaluation of the effectiveness and efficiency of existing legislation a key tool in the new approach of
so-called ‘smart’ regulation).
24
See e.g.: Commission, ‘Impact Assessment Guidelines’ SEC (2009) 92.

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262 Popelier

German administrative and constitutional law and applied by European and

constitutional courts, generally involves four steps. The contested measure must
(i) pursue a legitimate objective, (ii) be suitable, i.e. in a causal relation with this
objective, (iii) necessary, i.e. not curtailing rights more than necessary given
alternative options and (iv) be proportional in a strict sense: even in the absence
of a valid alternative, the benefits must outweigh the costs incurred by the
infringement of the right. The similarities between the latter two proportionality
requirements and economic efficiency and effectiveness standards are striking,25
to the extent that effectiveness has been called a contemporary constitutional
principle.26 Regulatory tools, then, in operationalizing efficiency and
effectiveness standards, simultaneously operationalize the proportionality
principle.
In this light, we can expect that courts will gradually take the use of specific
regulatory tools into account when assessing the proportionality of measures. 27
The European Court of Justice (ECJ), for example, sets minimum requirements
which are similar to the steps implied in the impact assessment procedure.
Illustrative in this respect are the Vodafone and Luxembourg v Parliament and
Council cases where the ECJ, when assessing the proportionality of the contested
measure, explicitly refers to the impact assessment carried out by the European
Commission.28 As it turns out, acting in accordance with procedural impact
assessment guidelines, will convince the Court that the measure is proportional.

E. PROCEDURAL RATIONALITY, LEGITIMACY STANDARDS AND

SOVEREIGNTY OF PARLIAMENT

Process review is well known in administrative law as a means to assess

administrative decisions. Here as well, the importance of regulatory tools
increases. On the one hand, better regulation programs, in looking for alternatives
for traditional law-making and in promoting governance techniques that shift

25
At least if economic efficiency is interpreted in its broad sense, see: K. Meßerschmidt, ‘Efficiency
and the Principle of Proportionality: Shall Lawyers Learn from Economists?’ (2001) EuroFaculty
Papers Riga, 11–13 <http:// www.eurofaculty.lv> accessed 31 December 2012.
26
A. Flückiger, ‘Effectiveness: A New Constitutional Principle’ (2009) 50 Legislaçao 183, 184–185.
27
A. Alemanno, ‘The Better Regulation Initiative at the Judicial Gate: A Trojan Horse within the
Commission’s Walls or the Way Forward?’ (2009) 15 European Law Journal 382; A. Alemanno, ‘A
Meeting of Minds on Impact Assessment: When Ex Ante Evaluation Meets Ex Post Judicial Control’
(2011) 17(3) European Public Law 485, 502 (about impact assessments as ‘an aid to the court’).
28
Case C-58/08 Vodafone Ltd and Others v. Secretary of State for Business, Enterprise and
Regulatory Reform [2010] ECR I-4999 at [55] and [58]; Case C-176/09, Grand Duchy of Luxembourg
v. European Parliament and Council of the European Union [2011] OJ C204/11 at [65]; D. Keyaerts,
‘Ex ante Evaluation of EU Legislation Intertwined with Judicial Review? Comment on Vodafone Ltd
v. Secretary of State for Business, Enterprise and Regulatory Reform (C-58/08) (2010) 35(6)
European Law Review 869, 869–884 (for an analysis of the Vodafone case).

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 Preliminary Comments 263

regulatory power to non-state actors, create serious legitimacy challenges.29 On

the other hand, the same regulatory programs introduce tools to enhance the
quality and justifiability of regulation and enable parliamentary control. In the
U.S., consultation and impact assessment requirements and judicial control
compensate for the loss of democratic control when delegating regulatory powers
to external agents.30 The ECtHR, for its part, requires that governments, when
empowering private actors to regulate important issues, ensure that the interests
of all stakeholders have been taken into account. 31
Better Regulation guidelines have the potential to reinforce judicial review in
this regard in order to protect persons against regulatory capture by
unaccountable market players, e.g. where the EU Inter-Institutional Agreement on
Better Lawmaking requires that the use of co-regulation or self-regulation meets
criteria of transparency and representativeness of the parties involved, and
considers them not applicable when fundamental rights or important political
options are at stake.32 In her contribution, Emilia Korkea-Aho reveals in
particular the potential of instruments of EU governance processes to enhance
judicial review of soft regulation.33 When courts thus promote deliberative values
such as participation, transparency, reasoning and accountability, they assume a
role as ‘catalysts’, inviting actors within the process to refine governance
procedures.34 An example is the UEAPME judgment,35 where the General Court
imposed upon the Commission and the Council the duty to ensure that the
signatories to the agreement following from the social dialogue, are sufficiently

29
C. Scott, ‘Governing without Law or Governing without Government? New-ish Governance and the
Legitimacy of the EU’ (2009) 15(2) European Law Journal 160, 172; P. Verbruggen, ‘Does Co-
Regulation Strengthen EU Legitimacy?’ (2009) 15(4) European Law Journal 431, 440
30
E.A. Posner, ‘Controlling Agencies with Cost-benefit Analysis: A Positive Political Theory
Perspective’ (2001) 68 University of Chicago Law Review 119. See also: W. Voermans and Y.
Schuurmans, ‘Better Regulation by Appeal’ (2011) 17(3) European Public Law 507, 519–522; S.
Shapiro and R. Murphy, ‘Eight Things Americans Can’t Figure Out about Controlling Administrative
Power’ in H. Hofmann and R. Weaver (eds.), Transatlantic Perspectives on Administrative Law
(Bruylant 2011) 7–33 (for a more critical assessment).
31
Evaldsson v. Sweden, no. 75252/01, ECHR 2007; Aizpurua Ortiz v. Spain, no. 42430/05, ECHR
2010. However, with respect to the application of this principle in the latter case, see the dissenting
opinion of Judge Myer.
32
Interinstitutional Agreement on Better Law Making [2003] OJ C321/01, para. 17; A. Meuwese and
L. Senden, ‘European Impact Assessment and the Choice of Alternative Regulatory Instruments’ in J.
Verschuuren (ed.), The Impact of Legislation: A Critical Analysis of Ex ante Evaluation (Martinus
Nijhoff Publishers 2009) 160–162 (more specifically on the conditions regarding the use of alternative
regulatory mechanisms inferred from the IIA as well as general principles of law).
33
C.F. Sabel and J. Zeitlin, ‘Learning from Difference: the New Architecture of Experimentalist
Governance in the EU’ (2008) 14(3) European Law Review 271.
34
J. Scott and S. Sturm, ‘Courts as Catalysts: Re-thinking the Judicial Role in New Governance’
(2007) 13(3) Columbia Journal of European Law 565; M. Dawson, New Governance and the
Transformation of European Law (Cambridge University Press 2011) 256–266 (for a discussion).
35
Case T-135/96 Union Européenne de l'artisanat et des petites et moyennes entreprises (UEAPME)
v. Council of the European Union [1998] ECR II-2335.

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representative, leading in turn to commitments from the Commission to update its

list of consulted social organisations.36
However, process review is not restricted to administrative decisions and
governance instruments. Drawing from the proportionality principle, arguments
of procedural rationality also apply to primary laws, voted by parliament. Legal
systems that accept constitutional review may prefer process review where it
enables courts to avoid assessing the substantive merits of a case. 37 Still, the
question remains whether parliament can be required to act rationally. 38 Hence,
the Hirst judgment, in which the ECtHR reproached the UK legislator for not
having ‘sought to weigh the competing interests or to assess the proportionality of
a blanket ban on the right of a convicted prisoner to vote’ and for not having
carried out ‘any substantive debate’ in Parliament on the continued justification of
this ban,39 met with critical reactions.40
In parliamentary systems, characterized by executive domination, process
review may, nevertheless, enhance the position of Parliament. For example, in the
ECtHR Lecarpentier case, the Court reproached the government for having failed
to give the French senators precise information about the impact that a French
court’s decision would have on the financial sector if the legislator would not
intervene retroactively.41 Regulatory procedures allow parliament to decide on the
basis of an informed parliamentary debate. Ultimately, the extent to which
process review is accepted, depends upon the conception of democratic rule or
legitimacy dominant within a given legal system. The idea that parliament should
act as a forum of rational and informed deliberation has more affinity with a
deliberative notion of democracy than with a principled concept of parliamentary

36
J. Scott and S. Sturm, ‘Courts as Catalysts: Re-thinking the Judicial Role in New Governance’
(2007) 13(3) Columbia Journal of European Law 565; M. Dawson, New Governance and the
Transformation of European Law (Cambridge University Press 2011) 258–259.
37
In some academic circles, judicial review of the legislative process is nevertheless regarded as more
controversial than substantive judicial review. For this observation, see: I. Bar-Siman-Tov, ‘The
Puzzling Resistance to Judicial Review of the Legislative Process’ (2011) 91 Boston University Law
Review 1915, 1918 and 1926. This, however, seems to refer mainly, but not only, to pure procedural
review, invalidating laws for procedural defects irrespective of its content, rather than semi-procedural
review. See also I. Bar-Simon-Tov’s contribution to this Legisprudence issue.
38
See e.g. the reference to a lecture of K. Schlaich by: U. Karpen, ‘On the State of Legislation Studies
in Europe’ (2006) 7 European Journal of Law Reform 59, 67–68 (arguing that the lawmaker should
not be harnessed to procedural standards as primary lawmaking is not merely a matter of
administration and lawmakers are not officials).
39
Hirst (no. 2) v. the UK, no. 74025/01, ECHR 2005; Hirst (no. 2) v. the UK [GC], no. 74025/01,
ECHR 2005–IX. Se also: Alajos Kiss v. Hungary, no. 38832/06, ECHR 2010.
40
See the many critical interventions by MP’s when debating the Report on ‘Voting by convicted
prisoners’ (House of Commons, 10 February 2011) <http://www.publications.parliament.uk/pa/
cm201011/cmhansrd/cm110210/debtext/110210-0001.htm> accessed 31 December 2012. D. Nicol,
‘Legitimacy of the Commons Debate on Prisoner Voting’ (2011) Public Law 681 (for an analysis of
the debate); S. Briant, ‘Dialogue, Diplomacy and Defiance: Prisoners’ Voting Rights at home and in
Strasbourg’ (2011) 3 European Human Rights Law Review 243, 248–250.
41
Lecarpentier v. France, no. 67847/01, § 47, ECHR 2006.

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 Preliminary Comments 265

sovereignty. Also, the contemporary notion of new constitutionalism, with an

emphasis on fundamental rights and constitutional review, is more inclined to
accept process review as a means to ensure that Parliament acts as a ‘responsible
and accountable legislature’, protecting the individual against arbitrary
interference.42 Finally, legal systems with an incomplete parliamentary system,
such as the European Union, will be more inclined to embrace alternative
legitimacy concepts based upon notions of input and output legitimacy. In its
White Paper on European Governance the European Commission lays down the
foundation of its Better Regulation program not only with objectives of economic
policy in mind, but also in terms of legitimacy. 43
For the ECtHR, which puts pluralism and public debate at the core of its
concept of democratic society, parliament is pre-eminently a forum for public
debate. This justifies the special regime that members of parliament enjoy,
including immunity.44 Hence, when a law is approved which seriously interferes
with fundamental rights, it is considered as democratically flawed if parliament
has not at least engaged in a public debate, considering the matter in the light of
the various rights and interests.

F. INSTITUTIONAL BALANCE

Proceduralization of the decision-making process may purposely affect the

relations between institutions. For example, the White Paper on European
Governance and the resulting better regulation program have been criticized for
concealing a Commission-centered strategy.45 In France, procedural requirements,
implying the obligation for Government to present an impact assessment when
introducing a bill before Parliament, 46 have the purpose to impact on the
functioning of the executive, the administration and Parliament. 47 It is interesting

42
S. Foster, ‘Reluctantly Restoring Rights: Responding to the Prisoner’s Right to Vote’ (2009) 9
Human Rights Law Review 498. For an analogous application of the informed nature of parliamentary
proceedings, see: Joined Cases C-128/09 ,C-129/09, C-130/09, C-131/09, C-134/09, C-135/09, C-
134/09 and C-135/09 Antoine Boxus and Willy Roua & Others v. Région Wallonne [2011] ECR I-0.
43
P. Popelier, ‘Governance and Better Regulation: Dealing with the Legitimacy Paradox’ (2011) 3
European Public Law 555, 558–560.
44
A. v. the UK, no. 35373/97, ECHR 2002–X.
45
See e.g.: M. Curtin and I. Dekker, ‘Good Governance: The Concept and Its Application by the
European Union’ in D.M. Curtin and R.A. Wessel (eds.), Good Governance and the European Union
(Intersentia 2005) 4.
46
Article 8 of the Loi organique no. 2009–403 du 15 avril 2009 relative à l'application des articles
34–1, 39 et 44 de la Constitution, Journal Officiel 16 April 2009.
47
J.-P. Duprat, ‘The Judicial Review of Ex Ante Impact Assessment in France: An Attempt to Fuse
the Principles of Legal Certainty and Institutional Balance’ (2012) 6(3) Legisprudence 383. According
to the parliamentary documents, the purpose was to improve regulatory quality, to make parliamentary
work more efficient and to increase the modalities for Parliament to express itself, see: Assemblée

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to note that while procedural judicial review is criticized for interfering with the
internal workings of the legislature, 48 the French Conseil Constitutionnel – as
Jean-Pierre Duprat explains in this issue – is given an explicit mandate to
interfere in the case of a conflict between the executive and the chamber
regarding the compliance of executive bills with procedural requirements.
Paramount example is the proceduralization of the subsidiarity principle and
the role of judicial review in this respect, as explained in Werner
Vandenbruwaene’s contribution to this special issue. In multilevel legal systems, a
trade-off between national and supranational interests is required in order for
decisions to be accepted as legitimate. The European Commission, moreover,
expressed in its White Paper on European Governance the ambition to include
regional and local authorities in the decision-making process.49 The subsidiarity
principle is elevated to a key principle for this purpose,50 and operationalized in
the Protocol through regulatory tools such as consultations and impact
assessments, with the explicit purpose to take into account national interests as
well as regional and local dimensions. 51 In its White Paper on Multilevel
Governance, the Committee of Regions stresses the importance of these tools for
legitimate multilevel governance based on partnership among the European,
national, regional and local levels.52
Incorporation of regulatory tools in ‘hard’ law combined with judicial review
may help to effectuate the envisaged institutional balance. In France, the Conseil
Constitutionnel has the power to control compliance with the Government’s the
law lays down the obligation to have a bill accompanied by an impact assessment,
with the power for the Conseil d’Etat to control compliance and a mandate for the
Conseil Constitutionnel to arbitrate.53 In the European Union, Article 8 of the
Protocol explicitly confers the power upon the European Court of Justice to
review European legislative acts against the subsidiarity principle. 54 In their
respective contributions to this special issue, Jean-Pierre Duprat and Werner

Nationale, 2008–2009, no. 1314 <http://www.assemblee-nationale.fr/13/projets/pl1314.asp> accessed

31 December 2012.
48
I. Bar-Siman-Tov, ‘The Puzzling Resistance to Judicial Review of the Legislative Process’ (2011)
91 Boston University Law Review 1915, 1927 (for this objection, which the author challenges in his
paper).
49
A. Bar Cendón, ‘The White Paper on “The Governance of Europe” and the Reform of the Union’
(European Commission) <http://ec.europa.eu/governance/ contrib_cendon_summary_en.pdf>
accessed 31 December 2012 (arguing it is ‘perhaps the most innovative and remarkable thing’ in the
White Paper on European Governance).
50
Commission, ‘European Governance’ (White Paper) COM (2001) 428 final, 8.
51
Articles 2 and 5 of the Protocol No 2 on the Application of the Principles of Subsidiarity and
Proportionality.
52
Committee of the Regions’ White Paper on Multilevel Governance [2009] OJ C211/2.
53
J.-P. Duprat, ‘The Judicial Review of Ex Ante Impact Assessment in France: An Attempt to Fuse
the Principles of Legal Certainty and Institutional Balance’ (2012) 6(3) Legisprudence 383.
54
W. Vandenbruwaene, ‘The Judicial Enforcement of Subsidiarity: The Quest for an Appropriate
Standard’ in P. Popelier, A. Mazmanyan and W. Vandenbruwaene (eds.), The Role of Constitutional
Courts in a Context of Multilevel Governance (Intersentia 2012) (for a discussion).

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 Preliminary Comments 267

Vandenbruwaene in this issue assess the scarce case law in this respect. Duprat
brings to light the complex interaction between Parliament, the executive, the
Conseil d’Etat and the Conseil Constitutionnel, and reveals in particular how in
France the effectiveness of procedural requirements as tools for institutional
control and balance depends on the willingness of the Courts to act as a
regulatory watchdog.

G. THE ‘BETTER PLACED’ ARGUMENT

The ‘better placed’ argument, referring to the superior expertise or capacity of the
legislature to take the best decisions, is often used in order to refute judicial
review in general or to justify wide deference. 55 Process review, then, accepts the
legislator’s superiority, however, by demanding that laws are evidence-based56,
requires the legislature to convince the court that the law was indeed enacted on
the basis of its superior expertise or democratic credentials. Besides, as
Messerschmidt notes in his contribution to this issue, judges are often better
informed about the actual impact of legislation than the legislator, acting on the
basis of incomplete information and prognoses of future effects.
‘Better placed’ arguments gain strength when hard law imposes the use of
specific regulatory tools, or when procedural guidelines laid down in soft law are
considered self-binding. For example, does the mandate of the French Conseil
Constitutionnel to check whether a bill introduced in Parliament is accompanied
by an impact analysis, imply a methodological assessment in order to qualify an
investigation as an impact assessment in the sense of Article 8 of the Loi
organique? If so, is the Court equipped to do so, and if not, would this reduce the
procedural requirement to a mere formality?
Several strategies help courts to deal with this limited methodological
capacity. Firstly, if restricted to the requirement of minimum guarantees for
evidence-based decision-making,57 process review does not intrude upon the

55
See e.g.: T. Hickman, Public Law after the Human Rights Act (Hart Publishing 2010) 125 and 129.
56
For a definition, see: R.A.J. van Gestel, ‘Evidence-based Lawmaking and the Quality of
Legislation: Regulatory Impact Assessments in the European Union and the Netherlands’ in H.
Schäffer and J. Iliopoulos-Strangas (eds.), State Modernization in Europe (Bruylant 2007) 141–142
(‘laws and policy initiatives are to be supported by research evidence and […] policies are preferably
introduced on trial and error basis’).
57
K. Meßerschmidt, Gesetzgebungsermessen (Nomos 2000); K. Meßerschmidt, ‘The Good Shepherd
of Karlsruhe: The “Hartz IV” Decision on Unemployment Benefits and Social Allowances – A Good
Example of Regulatory Review by the German Federal Constitutional Court?’ in P. Popelier, A.
Mazmanyan and W. Vandenbruwaene (eds.), Role of Courts in a Context of Multilevel Governance
(Intersentia 2012) 875–877. The author defines the duty to act as a prudent legislator as a mere
responsibility (Obliegenheit) rather than a legal duty in the strict sense (Verfassungspflicht). See also:
K. Meßerschmidt, ‘The Race to Rationality Review and the Score of the German Federal
Constitutional Court’ (2012) 6(3) Legisprudence 347.

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268 Popelier

legislator’s procedural autonomy by imposing the duty to follow a well-defined

optimal procedure.58 In this case, procedural errors play a role in particular when
the court is deferential as to the substantive merits of the case. As Messerschmidt
contends in his paper, they should not be determining to assess a measure as
unlawful, irrespective of the outcome of the decision. Further, courts are
interested in the existence of procedural safeguards and generally do not engage
in methodological disputes. For example, the ECtHR deems legislative
interference with human rights justified when based upon consultations or
studies, but does not require the use of a specific tool or method. Also, the Court
is reluctant to discuss the quality of consultations or investigations,59 except in the
case of a manifest error.60 In general, courts are expected to set ‘a minimum
threshold of scientific consultation’ while respecting political discretion. 61
Exceeding this minimum threshold and discussing the precise methods and
figures used by the legislator, courts expose themselves to critical comments. 62
Secondly, courts may use the information produced in the course of the
decision-making process.63 ‘Better placed’ reservations reduce the role of courts
regarding the judicial enforcement of the subsidiarity principle, as courts are
considered ‘ill-equipped to assess the underlying socio-economic determinants’.64
In his contribution to this issue, Werner Vandenbruwaene examines in how far
this ‘political question doctrine’ precludes principle judicial subsidiarity review. It
appears that fact finding through regulatory tools such as consultations and
impact assessments may help the Court to assess the rationality of the trade-off
between national or subnational autonomy and economic efficiency. 65

58
Lord Bingham in Denbigh [2006] UKHL 15 at [29]–[31] (for the UK debate regarding
administrative decisions); D. Mead, ‘Outcomes Aren’t All: Defending Process-Based Review of
Public Authority decisions under the Human Rights Act’ (2011) 61 Public Law 73 (for a reply).
59
S. and Marper v. the UK, nos. 30562/04; 30566/04, ECHR-2008; Hardy and Maile v. the United
Kingdom, no. 31965/07, ECHR-2012.
60
Smith and Grady v. the UK nos. 33985/96; 33986/96, ECHR VI, in particular at [95].
61
M. Dawson, New Governance and the Transformation of European Law (Cambridge University
Press 2011) 261 (regarding the ECJ, see).
62
See e.g. K. Meßerschmidt, ‘The Good Shepherd of Karlsruhe: The “Hartz IV” Decision on
Unemployment Benefits and Social Allowances – A Good Example of Regulatory Review by the
German Federal Constitutional Court?’ in P. Popelier, A. Mazmanyan and W. Vandenbruwaene
(eds.), Role of Courts in a Context of Multilevel Governance (Intersentia 2012) (regarding the German
Constitutional Court).
63
The principle of subsidiarity serves as case in point: both the Commission’s impact assessment and
the opinions of the National Parliaments could serve as interpretatory aids: P. Craig, ‘Subsidiarity: A
Political and Legal Analysis’ (2012) 50 Journal of Common Market Studies 72, 78; A. Biondi,
‘Subsidiarity in the Courtroom’ in A. Biondi, P. Eeckhout and S. Ripley (eds.), EU law after Lisbon
(Oxford University Press 2012) 227.
64
W. Vandenbruwaene, ‘The Judicial Enforcement of Subsidiarity: The Quest for an Appropriate
Standard’ in P. Popelier, A. Mazmanyan and W. Vandenbruwaene (eds.), The Role of Constitutional
Courts in a Context of Multilevel Governance (Intersentia 2012) (for a close analysis of these
arguments).
65
See ibid. for an analysis of the case law of both the German BundesVerfassungsgericht and the
European Court of Justice in this respect.

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 Preliminary Comments 269

Thirdly, courts may rely on the opinions advanced by parties and procured by
authoritative experts identified within or established by the regulatory
environment, complying with standards laid down in regulatory guidelines such
as the EU guidelines on expert advice,66 or subjected to peer review. They may
require that the legislator consulted these experts and may require particular
justification for deviations from this advice.67
Finally, courts may delegate the assessment of scientific evidence to experts
or expert review groups. For example, WTO panels, when dealing with the
judicial review of science-based measures, consult external experts to weigh the
evidence advanced by parties.68

H. PRELIMINARY CONCLUSION

While judicialization of regulatory reform tools raises many questions, some

objections, listed above, call for more nuanced differentiations.
Firstly, while regulatory reform is indeed part of a competitive market
strategy, it also pursues other objectives more closely related to finalities of
judicial review, such as institutional balance and legitimacy. Hence, courts are
sometimes given an explicit mandate to review procedural safeguards. Moreover,
efficiency and efficacy standards underpinning regulatory reform programs
converge with the criteria operationalizing the legal proportionality principle.
Nonetheless, it is a thin line – sometimes obscure – between the legal assessment
of evidentiary material establishing legislative reasonableness on the one hand,
and the mere judgement on the opportunity of the methods and conclusions drawn
from the data.
Secondly, the risk that excessive judicialization may stifle regulatory reform
should be taken seriously. However, there is no need to exaggerate this objection,
as courts usually refer to procedural rationality in order to support legislative
interference, without requiring the use of well-defined instruments or methods. In
his contribution to this special issue, Ittai Bar-Siman-Tov confirms that courts in
the U.S. but also in Europe refrain from exercising pure procedural review when

66
Commission, ‘Communication from the Commission on the Collection and Use of Expertise by the
Commission: Principles and Guidelines – Improving the Knowledge Base for Better Policies’ COM
(2002) 713 final, 9.
67
A. Alemanno, ‘Science and EU Risk Regulation: The Role of Experts in Decision-Making and
Judicial Review’ in E. Vos (ed.), European Risk Governance: Its Science, Its Inclusiveness and Its
Effectiveness (Connex Report Series No. 6, 2008) 51 ff. See e.g.: Case T-13/99 Pfizer Animal Health
SA v. Council of the European Union [2002] ECR II-3305.
68
A. Alemanno, ‘The Dialogue between Judges and Experts in the EU and WTO’ in F. Fontanelli, G.
Martinico and P. Carozza (eds.) Shaping Rule of Law through Dialogue (Europa Law Publishing
2010) 351–362 (for a discussion).

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270 Popelier

no individual rights or other substantive values are at stake, 69 In his paper,

Messerschmidt considers the German and EU legal systems ‘more advanced in
procedural review’, but admits that in practice procedural and substantive review
are interlinked. Also, it follows from Duprat and Vandenbruwaene’s contributions
that where French and EU courts are given a constitutional mandate implying
procedural judicial review, they tend to use it in a restraint way.
Thirdly, while regulatory procedures are often laid down in ‘soft’
administrative guidelines to avoid judicialization, the criteria incorporated in
these guidelines support the interpretation of open-textured legal requirements
such as ‘reasonableness’ and ‘proportionality’, and, in doing so, reinforce legal
certainty. Also, while regulatory reform promotes the use of soft law, judicial
review of procedural requirements may prevent circumvention of democratic
safeguards such as representativeness, transparency and accountability.
Fourthly, courts should remain vigilant that a duty to base laws upon scientific
evidence does not affect political responsibility. In this regard, they should limit
themselves to shape minimum criteria for governance processes, while allowing
political actors to refine procedures and to allow for the consideration of political
factors. As Dawson puts it: “The ‘catalytic court’, even if it can and should not
substitute its own judgment for that of the political actors of new governance
itself, may at least provoke a process of dialogue and reflection able to make
regulatory decisions more cognisant of a broader ‘public’ interest.”70 In this line
of thought, Emilia Korkea-Aho in this issue argues for better judicial review as a
more responsive kind of review.
Finally, several strategies were suggested to deal with the limited capacity of
courts to judge the quality of administrative procedures within the regulatory
process. A first requirement, however, is for courts to acquire a minimum of
interdisciplinary skills in order to be able to read documents such as impact
assessments, unfamiliar to their legal training. In her contribution to this paper,
Elaine Mak stresses how courts are increasingly expected to use insights from
other disciplines in the process of judicial decision-making. As it turns out,
process review is not free of engagement for courts.

69
See also: I. Bar-Siman-Tov, ‘The Puzzling Resistance to Judicial Review of the Legislative Process’
(2011) 91 Boston University Law Review 1915, 1926 (pure procedural judicial review is commonly
regarded as less justified than substantive judicial review, because it is not aimed at the protection of
individual rights).
70
M. Dawson, New Governance and the Transformation of European Law (Cambridge University
Press 2011) 264.

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