Regulatory Scrutiny of Subsidiarity and Proportionality
| Author | Anne Meuwese,Suren Gomtsian |
| DOI | 10.1177/1023263X1502200402 |
| Date | 01 August 2015 |
| Published date | 01 August 2015 |
| Subject Matter | Article |
22 MJ 4 (2015) 483
ARTICLES
REGULATORY SCRUTINY OF SUBSIDIARITY
AND PROPORTIONALITY
A M and S G*
ABSTRACT
As the monitoring of the principles of s ubsidiarity and proportionality is mostly le u p t o t he
EU institutions, internal qu ality control bodies could play an important role in developing
tests and standards which represent part of ‘subsidiarity and proportionality in action’.
In this context, the Impact Assessment Board (Board), established within the European
Commission in 2006 and recently renamed ‘Regulatory Scrutiny Board’ (to review impact
assessments) holds a key position. is paper presents an analysis of opinions from the
Board from 2010 and 2011 as an alternative jurispr udential source regarding subsidiarity
and proportionality. e analysis tells us something about the ‘e veryday meaning’ of these
principles, but also about the way the Board functions as an ‘in-house’ regulatory review
board.
Keywords: European C ommission; proportional ity; regulatory impact assessment;
Regulatory Scrutiny Board; subsidiarity
§1. IN T RODUCT ION
It is generally accepted that t he European Commission has a fair amount of discretion
in putting together legislative proposals. However, this discretion is also permanently
subject to attempts by various actors to deli neate, structure and shape it, and the Cour t
of Justice has implied that this is how it should be.1 At the same time, the European
Commission’s exclusive right of initiative is an important constitut ional building block
* Anne C.M. Meuwe se is Professor of Europ ean and Compar ative Public Law at Ti lburg Law School,
Tilburg Universit y, e Netherland s, and is grateful for a nd would like to acknowledge t he support of
the Netherland s Organisation for Scie nti c Research NWO (Veni grant ‘Alternati ves to Constitutiona l
Law’, 451–11–032). Suren Gomtsian is a Ph D researcher in Busi ness Law at Tilburg Law Scho ol, Tilburg
University, e Netherlands , and a member of Tilburg Law and E conomics Center (TILEC).
Anne Meuwese and Su ren Gomtsian
484 22 MJ 4 (2015)
and the essence of what has c ome to be known as the ‘Community met hod’. e need to
arrive at a n ‘actual exercis e of legislative disc retion’ whilst refr aining from und ermining
the political natu re of the right of initiative has culminated i n a horizontal Commission
policy called ‘Better Regulation’. e most important component of this horizontal
policy for improving European legislation across the board is the commitment to carr y
out impact assessments on legislative proposals .
Whet her, in carr ying out impact ass essments, the Commi ssion is ma naging to s trike
the right balance b etween ‘restraint’ and ‘initiat ive’ is subject to continuous debate. One
of the measures taken by the Commission to streng then the credibility of its claim that
impact assessments are not about deregu lation or about enhancing its own role in the
legislative process is the establishment of an ‘Impact Assessment Board’. It was given
an independent role in scruti nizing all impact assessments w ithin the Commission. On
19May 2015, the European Commission introduced a new ‘Better Regu lation Package’
which included reform of the Impact Assessment Board.2 It was renamed ‘Regulatory
Scrutiny Board ’, three of its six members will be recruited externally, and it will get a
broader and stronger role than its predecess or. However little is known about the way i n
which this novel and increasi ngly powerful body goes about its task of being t he ‘voice of
reason’ in the Commission’s process of preparing legislative proposals. Both the nature
of the body in administrative and constitutional terms and the normative contribution
it makes to the legislative framework within which the Commission exercises its right
of initiative are rather unclear. is is not for want of transparency because all Board
opinions are published on the C ommission’s website.
is article ai ms to make a contribution to better u nderstanding of the role of t he Board
by analysing al l the opinions from sample years (2010 and 2011), looking in particular
at the way in which the Boa rd conducts scrutiny for compatibility with t he principles of
subsidiarity and proport ionality. ese pri nciples are the main constit utional principles
regulating t he intensity of regulatory intervention in t he EU and therefore provide a sort
of ‘litmus test’ for the B oard’s e ectivenes s as a non-judicial review mechanism.
Several constitut ional questions emerge with rega rd to this increasi ngly present
type of review mechanism. How does the rev iew process tak ing place within these
mechanisms relate to judicial review of legislation? To what extent do they mimic
judicial processes? Understanding t he nature of the Board’s review is important in v iew
of the possibility t hat the Court of Justice may be more inclined to continue gr anting the
Commission legislative dis cretion when the Board’s review guarantees a m inimum level
of consideration of relevant principles when proposing EU action.
e main research quest ion is: ‘what type of interpretation does the Board lend to
the principles of proportionalit y and subsidiarity in its ex ante scrutiny of Commission
impact assessments?’
2 Communication f rom the Commission, Better re gulation for better result s – An EU agenda, 19May
2015, COM(2015) 215 nal .
To continue reading
Request your trial