Better judicial review? EU courts and the smart regulation agenda in implementing chemicals regulation

Legisprudence

Volumn 6, Issue 3, 2012, Pages 397-423

  Korkea aho, Emilia ^a  

^a UNIVERSITY OF HELSINKI   (Finland)

Author keywords

Better regulation; EU courts; Implementation; Judicial review; Postlegislative guidance; REACH; Smart regulation; Soft law

Indexed keywords

EID: 84875902559     PISSN: 17521467     EISSN: 17521475     Source Type: Journal    
DOI: 10.5235/17521467.6.3.397     Document Type: Article

References (146)

1. J. Scott, 'In Legal Limbo: Post-Legislative Guidance as a Challenge for European Administrative Law' (2011) 48 Common Market Law Review 329 (for the term).
2. C. Brown and C. Scott, 'Regulation, Public Law, and Better Regulation' (2011) 17 European Public Law 468.
3. 'Where implementation studies have been undertaken, they have paid little or no attention to any linkage with BR policies.'.
4. Better Regulation, 'Final Report' (European Commission 2001) 16.
5. Commission, 'Smart Regulation in the European Union' (Communication) COM (2010) 543 final, 3.
6. When discussing UK politics, ' The government after Steve Hilton: A Radical Departure' (The Economist, 10 March 2012) 36, notes that implementation of legislation requires imagination and creativity, implying that rather than being a straightforward realisation of legislative norms, modern implementation relies on a multiplicity of actors and means.
7. J. Scott, 'In Legal Limbo: Post-Legislative Guidance as a Challenge for European Administrative Law' (2011) 48 Common Market Law Review 329.
8. Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European ECHA, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC.
9. Commission, ' Smart Regulation in the European Union' (Communication) COM (2010) 543 final, 7.
10. C. Hey, K. Jacob and A. Volkery, 'Better Regulation by New Governance Hybrids? Governance Models and the Reform of European Chemicals Policy' (2007) 15(18) Journal of Cleaner Production 1859.
11. For the problematique.
12. T. Prosser, 'Models of Economic and Social Regulation' in D. Oliver, T. Prosser and R. Rawlings (eds.), The Regulatory State: Constitutional Implications (Oxford University Press 2010) 48.
13. T. Prosser, 'Models of Economic and Social Regulation' in D. Oliver, T. Prosser and R. Rawlings (eds.), The Regulatory State: Constitutional Implications (Oxford University Press 2010) 48.
14. Commission, ' Action Programme for Reducing Administrative Burdens in the European Union' (Communication) COM (2007) 23 final; Commission, Action Programme for Reducing Administrative Burdens in the European Union' SEC (2007) 84.
15. R. Baldwin, 'Is Better Regulation Smarter Regulation?' [2005] Public Law, 485.
16. C. Radaelli, 'Whither Better Regulation for the Lisbon Agenda?' (2007) 14(2) Journal of European Public Policy 190.
17. For criticism of the too pronounced role of IAs in the BR agenda.
18. Commission, ' Towards a Reinforced Culture of Consultation and Dialogue: General Principles and Minimum Standards for Consultation of Interested Parties by the Commission' (Communication) COM (2002) 704 final.
19. Though that public participation and BR can be pitted against each other. This is of course dependent on the conception of BR. If BR is introduced as aiming at ' speed and consistency in decision making', requirements to consult and include can appear as a hindrance to BRobjectives.
20. E.A. Kirk and K.L. Blackstock, 'Enhanced Decision Making: Balancing Public Participation against "Better Regulation" in British Environmental Permitting Regimes' (2011) 23(1) Journal of Environmental Law 97.
21. 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.
22. K.A. Armstrong, 'The Character of EU Law and Governance: From "Community Method" to New Modes of Governance' [2011] Current Legal Problems 6.
23. Interinstitutional Agreement on Better Law Making [2003] OJ C321/01 (discussing alternative methods of regulation, and especially co-regulation and self-regulation).
24. P. Popelier, 'Governance and Better Regulation: Dealing with the Legitimacy Paradox' (2011) 3 European Public Law 555, 560.
25. T. Prosser, 'Models of Economic and Social Regulation' in D. Oliver, T. Prosser and R. Rawlings (eds.), The Regulatory State: Constitutional Implications (Oxford University Press 2010) 47-48.
26. C. Brown and C. Scott, 'Regulation, Public Law, and Better Regulation' (2011) 17 European Public Law 468.
27. C. Brown and C. Scott, 'Regulation, Public Law, and Better Regulation' (2011) 17 European Public Law, 48.
28. A. Meuwese, 'Embedding Consultation Procedures: Law or Institutionalization?' (2011) 17 European Public Law 527.
29. For the latter view.
30. Commission, ' Smart Regulation in the European Union' (Communication) COM (2010) 543 final.
31. This shift from better regulation to smart regulation has taken place in national contexts too. For the UK experience.
32. E. Humpherson, 'Auditing Regulatory Reform' in D. Oliver, T. Prosser and R. Rawlings (eds.), The Regulatory State: Constitutional Implications (Oxford University Press 2010) 275.
33. Some scholars point out that ex post evaluations come (too) late in a law's life when resources have already been allocated and spent. They argue for experimental lawmaking as it can at best minimize the risks of new legislation.
34. R. van Gestel and G. van Dijck, 'Better Regulation through Experimental Legislation' (2011) 17 European Public Law 540.
35. Commission, ' Smart Regulation in the European Union' (Communication) COM (2010) 543 final, 3.
36. Commission, ' Europe 2020: A Strategy for Smart, Sustainable and Inclusive Growth' (Communication) COM (2010) 2020 final. See also references to Europe 2020 in: Commission, ' Smart Regulation in the European Union' (Communication) COM (2010) 543 final. For the link between BR and the Lisbon programme.
37. C. Radaelli, 'Whither Better Regulation for the LisbonAgenda?' (2007) 14(2) Journal of European Public Policy 190.
38. C. Radaelli, 'Whither Better Regulation for the Lisbon Agenda?' (2007) 14(2) Journal of European Public Policy 190.
39. Commission, ' Smart Regulation in the European Union' (Communication) COM (2010) 543 final,9.
40. Implementation is a multi-faceted concept. ' Legal' implementation refers to transposition of EU legislation (directives) into national law, ensuring that national legislation is formally in line with EU legislation. Instead ' practical' implementation encompasses the ' street level': how EU derived law is applied in practice by domestic actors.
41. A. Weale et al., Environmental Governance in Europe: An Ever Closer Ecological Union? (Oxford University Press 2000) 297.
42. Both stages of implementation require a certain amount of norm elaboration and interpretation. Implementation can be further guided at the EU level (the so-called centralised implementation). See Articles 290-291 TFEU for adoption of ' delegated' and ' implementing' norms. Decentralised implementation, covering ' legal' and ' practical stages', is increasingly a mix of national and European actors.
43. M. Thatcher and D. Coen, 'Reshaping European Regulatory Space: An Evolutionary Analysis' (2008) 31 West European Politics 806.
44. C. Brown and C. Scott, 'Regulation, Public Law, and Better Regulation' (2011) 17 European Public Law 468, 474.
45. As an exception one should mention co-regulation, which could be characterised as an implementation instrument and which is analysed by BR scholars. The idea is that actors recognised in a certain field are responsible for achieving the aims set by the legislature, usually through drawing up voluntary agreements. However, standards are often open-ended and do not provide enough normative content to guide further implementation action.
46. P. Popelier, 'Governance and Better Regulation: Dealing with the Legitimacy Paradox' (2011) 3 European Public Law 555, 561.
47. F. Fleurke and H. Somsen, 'Precautionary Regulation of Chemical Risk: How REACH Confronts the Regulatory Challenges of Scale, Uncertainty, Complexity and Innovation' (2011) 48 Common Market Law Review 365.
48. P. Craig and G. de Búrca, EU Law: Text, Cases and Material (5th edn., Oxford University Press 2011) 170.
49. C. Radaelli, 'Whither Better Regulation for the Lisbon Agenda?' (2007) 14(2) Journal of European Public Policy 190, 192.
50. The same has happened at the national level: '[I]n countries as diverse as Italy, the Netherlands, and the UK one common feature of the better regulation programmes introduced in the late 1990s was the anchorage to open models of governance.' Note
51. C. Radaelli, 'Whither Better Regulation for the Lisbon Agenda?' (2007) 14(2) Journal of European Public Policy 190, 192.
52. At the time of writing the report, the Mandelkern group members were cognisant of the themes of and discussions around the White Paper on Governance. Radaelli argues this on the basis of interviews held among members of the Mandelkern group.
53. C. Radaelli, 'Whither Better Regulation for the Lisbon Agenda?' (2007) 14(2) Journal of European Public Policy 190, 193.
54. Commission, ' European Governance' (White Paper) COM (2001) 428 final, 20. Note that framework directives or norms have not elsewhere been given a more specific definition. 35.
55. P. Craig and G. de Búrca, EU Law: Text, Cases and Material (5th edn., Oxford University Press 2011) 174-175.
56. Commission, ' Smart Regulation in the European Union' (Communication) COM (2010) 543 final, 3.
57. C. Brown and C. Scott, 'Regulation, Public Law, and Better Regulation' (2011) 17 European Public Law 468, 482.
58. C. Brown and C. Scott, 'Regulation, Public Law, and Better Regulation' (2011) 17 European Public Law 468, 481.
59. Note though that this inclusion of a whole policy-making cycle has theoretical rather than practical consequences. For instance, neither the Commission (as far as I can tell) nor the author of this article wishes to extend the IA for guidance documents. However, it is not out of the question to adapt IAs to take into account strategies of implementation and enforcement but at the moment the betterment of implementation and enforcement strategies seems to take place outside the remit of BR.
60. C. Hey, K. Jacob and A. Volkery, 'Better Regulation by New Governance Hybrids? Governance Models and the Reform of European Chemicals Policy' (2007) 15(18) Journal of Cleaner Production 1859, 1865.
61. Recital 24. For themes and activities go to ' Preparing for REACH' (Europa.eu) http://ec.europa.eu/environment/chemicals/reach/preparing accessed 31 December 2012).
62. The Commission initiated guidance drafting within RIPs. With the establishment of the ECHA, responsibility for guidance changed hands from the Commission to the ECHA which now coordinates guidance drafting and has updated many documents initially drafted within RIPs.
63. Guidance documents can be found at (Europa.eu) http://guidance.echa.europa.eu accessed 7 October 2012. Moreover there are four guidance documents in the context of Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on Classification, Labelling and Packaging of Substances and Mixtures, Amending and Repealing Directives67/548/EEC and 1999/45/EC, and Amending Regulation (EC) No 1907/2006.
64. Recitals 38 and 31.
65. Except perhaps indirectly in REACH Articles 77(2)(g) and 77(2)(h).
66. REACH (Revised) Consultation Procedure on Guidance (Europa.eu) http://echa.europa.eu/ documents/10162/13559/mb_14_2011_consultation_procedure_guidance_en.pdf, accessed 7 October 2012.
67. PEG is an ad hoc expert group involving representatives of various stakeholders, interested parties, the Commission and national authorities set up for each guidance, see: Appendices A, B, C and D of Consultation Procedure on Guidance. The Forum for Exchange of Information on Enforcement provides a platform for collaboration between national competent authorities and coordinates Member State practices with a view to achieving harmonised enforcement of EU chemicals policies.
68. REACH (Revised) Consultation Procedure on Guidance, 6. The first version of REACH Consultation Procedure on Guidance (page 4) solved things differently: in case of disagreement it was for the ECHA Executive Director to decide on the final text of the guidance document, after consulting the Management Board.
69. REACH (Revised) Consultation Procedure on Guidance, 2.
70. C. Hey, K. Jacob and A. Volkery, 'Better Regulation by New Governance Hybrids? Governance Models and the Reform of European Chemicals Policy' (2007) 15(18) Journal of Cleaner Production 1859, 1866.
71. F. Fleurke and H. Somsen, 'Precautionary Regulation of Chemical Risk: How REACH Confronts the Regulatory Challenges of Scale, Uncertainty, Complexity and Innovation' (2011) 48 Common Market Law Review 365.
72. The US literature discusses whether the agency's observance of IA requirements should or should not be judicially reviewed.
73. W. Voermans and Y. Schuurmans, 'Better Regulation by Appeal' (2011) 17(3) European Public Law 507, 522.
74. On a more general level, Prosser elaborates the tension that pursuit of a BR agenda creates between ' centralized reform and regulatory independence', in particular in the UK domestic context.
75. T. Prosser, 'Models of Economic and Social Regulation' in D. Oliver, T. Prosser and R. Rawlings (eds.), The Regulatory State: Constitutional Implications (Oxford University Press 2010) 47.
76. This same question is likely to arise in the relationship between EU agencies and the Commission.
77. F. Fleurke and H. Somsen, 'Precautionary Regulation of Chemical Risk: How REACH Confronts the Regulatory Challenges of Scale, Uncertainty, Complexity and Innovation' (2011) 48 Common Market Law Review 365, 375.
78. Instance the European Chemical Industry Council Guidelines, the European Tyre and Rubber Manufacturers' Association, or the European Steel Industry Eurofer, available at respective association websites. The last association explicitly acknowledges REACH guidance as an inspiration for its own guidelines.
79. ' Guidance in a Nutshell' (Europa.eu) http://echa.europa.eu/web/guest/support/guidance-on-reachand-clp-implementation/guidance-in-a-nutshell accessed 5 October 2012) (for the first five ' nutshell guidance').
80. R. Rawlings, 'Changed Conditions, Old Truths: Judicial Review in a Regulatory Laboratory' in D. Oliver, T. Prosser and R. Rawlings (eds.), The Regulatory State: Constitutional Implications (Oxford University Press 2010) 284.
81. 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, 388.
82. The Commission's commitment is most convincingly manifested in the establishment of an Impact Assessment Board. Composed of five high-level Commission officials, its task is to screen individual IA draft assessments before they make further progress in the decision-making process.
83. 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, 394.
84. 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, 394-395.
85. 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, 496-498.
86. Alemanno distinguishes two types of scenario. In what he calls ' an indirect encounter', the claimant attempts to convince the EU court that breach of BR requirements renders the final act invalid. The claimant is unlikely to succeed due to the soft law nature of BR. A ' direct encounter' takes the form of a direct challenge to an IA report on the grounds of breach of IA guidelines and procedures. As the IA report is a preliminary act, not producing legal effects, it is not reviewable by the EU courts.
87. 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, 496-498 and 495-498.
88. W. Voermans and Y. Schuurmans, 'Better Regulation by Appeal' (2011) 17(3) European Public Law 507, 515.
89. In the context of social dialogue, see: 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. As far as legislation goes, the EU courts have made very clear that they will not establish a right to be consulted in the Union legislative procedure where no such right is provided for in the treaties.
90. Case T-521/93 Atlanta AG, Atlanta Handelsgesellschaft Harder & Others v. Council of the European Union and Commission of the European Communities [1996] ECR II-1669 at [71]: 'In the context of a procedure for the adoption of a Community act based on an article of the Treaty, the only obligations of consultation incumbent on the Community legislature are those laid down in the article in question.' Whilst the notion of participatory democracy is now included in the treaties (Article 11 TEU) it hardly provides sufficient normative content to persuade the EU courts to let individuals challenge the validity of a EU legal act on the basis of alleged disregard for BR policies, let alone directly mount a challenge on exclusion from implementation.
91. Prior to Article 263 TFEU, it was unclear whether EU agencies qualified as ' authors' under ex Article 230 EC, although the EU court gave a positive answer to the question in Case T-411/06 Sogelma-Societá Generale Lavori Manutenzioni Appalti Srl v. European Agency for Reconstruction (EAR) [2008] ECR II-2771, in particular at [37]. The issue of formal adoption by the ECHA is uncertain after revision of the Consultation Procedure on Guidance. The previous version singled out the Executive Director as final decision-maker in case of disagreement. With the revised version, the majority decides and accordingly one could argue that formally speaking authorship is shared.However, the fact that the ECHA calls guidance ' ECHA guidance', not ' REACH guidance', would indicate that the ECHA is the author.
92. J.J. Scott, 'In Legal Limbo: Post-Legislative Guidance as a Challenge for European Administrative Law' (2011) 48 Common Market Law Review 329, 337-343.
93. She also distinguishes a third category of legal effects. This covers soft law measures generating legal effects in non-binding form but what makes them different from the rest is that a legal basis is usually either provided for in legislation or implied. As they are exceptional cases, they can be ignored here.
94. Case C-325/91 French Republic v. European Commission [1993] ECR I-3283 at [14].
95. Case 366/88 French Republic v. European Commission [1990] ECR I-3571 at [23].
96. Joined Cases C-223/99 and C-260/99 Agorà Srl and Excelsior Snc di Pedrotti Bruna & C. v. Ente Autonomo Fiera Internazionale di Milano and Ciftat Soc. coop. arl [2001] ECR I-3605 at [41].
97. Case C-310/99 Italian Republic v. Commission of the European Communities [2002] ECR I-2289 at [52].
98. Case T-123/00 Dr. Karl Thomae GmbH v. Commission of the European Communities 2002 ECR II-5193, in particular at [97].
99. 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, 397.
100. IA constitutes what Alemanno calls a ' legality check', taking place before adoption of a regulatory instrument.
101. 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, 496-498 and 487.
102. 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, 496-498 and 399.
103. 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, 396-399.
104. 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, 499-502.
105. W. Voermans and Y. Schuurmans, 'Better Regulation by Appeal' (2011) 17(3) European Public Law 507, 523.
106. 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, 586.
107. Case C-58/08 Vodafone Ltd and Others v. Secretary of State for Business, Enterprise and Regulatory Reform [2010] ECR I-4999.
108. Case C-58/08 Vodafone Ltd and Others v. Secretary of State for Business, Enterprise and Regulatory Reform [2010] ECR I-4999.
109. Case C-310/04 Kingdom of Spain v. Council of the European Union [2007] ECR I-7318.
110. 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.
111. 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, 496-498.
112. An exception here is Case C-310/99 Italian Republic v. Commission of the European Communities [2002] ECR I-2289 at [52], where the Court explains that the guidelines are useful in ensuring that the Commission keeps on its best behaviour but ' they cannot bind the Court. However, they may form a useful point of reference'.
113. Case C-387/97 Commission of the European Communities v. Hellenic Republic [2000] ECR I-5047 at [87] and [89].
114. Case T-184/97 BP Chemicals Ltd v. Commission of the European Communities [2000] ECR II-3145 at [64] (in particular the Court's rather nebulous comments on soft law in judicial reasoning).
115. O.A. Ştefan, 'European Competition Soft Law in European Courts: A Matter of Hard Principles?' (2008) 14 European Law Journal 767.
116. In Ştefan's analysis of competition law, the EU courts have also taken soft law instruments into account with a view to strengthening a certain interpretation of underlying hard law provisions.
117. Case C-322/88 Salvatore Grimaldi v. Fonds des Maladies Professionnelles 1989 ECR 4407 at [18].
118. S Scott, 'In Legal Limbo: Post-Legislative Guidance as a Challenge for European Administrative Law' (2011) 48 Common Market Law Review 329, 355.
119. 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, 399.
120. He points out elsewhere that based on the 2003 Inter-Institutional Agreement on Better Lawmaking, the EU Parliament and Council are expected to generate new IAs for ' substantive amendments', but since the definition of a ' substantive amendment' is up for each EU institution to decide, institutional practice is not necessarily consistent.
121. 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, 496-498 and 486 fn. 9.
122. C. Radaelli, 'Whither Better Regulation for the Lisbon Agenda?' (2007) 14(2) Journal of European Public Policy 190, 191.
123. T. Prosser, 'Models of Economic and Social Regulation' in D. Oliver, T. Prosser and R. Rawlings (eds.), The Regulatory State: Constitutional Implications (Oxford University Press 2010) 48.
124. He continues elsewhere by saying that ' future study of regulation will not be able to concentrate on the activities of individual institutions such as agencies, but will have to look at the context of.
125. T. Prosser, 'Conclusion: Ten Lessons' in D. Oliver, T. Prosser and R. Rawlings (eds.), The Regulatory State: Constitutional Implications (Oxford University Press 2010) 316.
126. In his review of EU governance and its relationship to law, Armstrong makes an identical observation. For him, an ' important emerging theme in EU governance debate is the importance of governance design: the calibration of different instruments and actors to deliver effective and legitimate forms of governance'.
127. K.A. Armstrong, 'The Character of EU Law and Governance: From "Community Method" to New Modes of Governance' (2011) Current Legal Problems 6, 35.
128. The EU court alluded to the common implementation strategy when it held that ' the common principles and overall framework for action which it WFD lays down are to be developed subsequently by the Member States'. Case C-32/05 Commission of the European Communities v. Grand Duchy of Luxembourg [2006] ECR I-11323 at [41].
129. In my view this is the primary reason why recognition by the courts of soft law material cannot straightforwardly be taken as a threat to legal certainty, or to make a more differentiated argument, to increase substantive legal certainty but to decrease formal legal certainty. Due to the open-ended nature of framework regulation, traditional judicial reservations about soft law need to be critically evaluated to ascertain their suitability in the context of regulation laying out the framework but skimming on the substance.
130. This is confirmed by a recent analysis of infringement actions in the area of environmental law. Authors point out that the Court of Justice arrives more often than before at the conclusion that the Commission lacks evidence to support its claims and in their view this connects to the overly technical nature of directives.
131. L. Prete and B. Smulders, 'The Coming of Age of Infringement Proceedings' (2010) 47 Common Market Law Review 9, 38-39.
132. 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, 496-498 and 498-504.
133. Note though that based on a search on the EU courts database, REACH guidance has incidentally been referred to by the Court of Justice in two cases, see:. Case C-14/10 Nickel Institute v. Secretary of State for Work and Pensions [2012] ECR I-0 at [69]; Case C-15/10 Etimine SA v. Secretary of State for Work and Pensions (21 July 2011) at [46].
134. Case C-558/07 The Queen, on the application of S.P.C.M. SA, C.H. Erbslöh KG, Lake Chemicals and Minerals Ltd and Hercules Inc. v. Secretary of State for the Environment, Food and Rural Affairs [2009] ECR I-5783.
135. Case C-558/07 The Queen, on the application of S.P.C.M. SA, C.H. Erbslöh KG, Lake Chemicals and Minerals Ltd and Hercules Inc. V. Secretary of State for the Environment, Food and Rural Affairs [2009] ECR I-5783, Opinion of AG Kokott, para. 127. The EU court does not refer to guidance in its judgment.
136. Case C-358/11 Lapin Elinkeino-, Liikenne- ja Ympäristö- Keskuksen Liikenne ja Infrastruktuuri Vastuualue (lodged 8 July 2011).
137. The Commission's written observations to the proceedings C-358/11, dated 3 November 2011.
138. In a recent infringement case concerning an urban waste water system, Advocate General Mengozzi notes the open-ended nature of the Directive and continues that ' not only does Directive 91/271 contain a number of general and imprecise terms - in contexts, what is more, which are highly technical - but the Commission itself has not drawn up any related guidelines, even unilateral guidelines, to allow a clear understanding of the way in which the rules will be construed it would be highly desirable for at least the Commission, if not the legislature, to provide such clarification by drawing up and publishing appropriate guidance on interpretation'. Case C-301/10 European Commission v. United Kingdom of Great Britain and Northern Ireland [2012] ECR I-0, Opinion of AG Mengozzi, para. 29 (emphasis added). See also Court's ruling in the case, especially at [61].
139. Theoretically this argument is part of a bigger trend from court-centricity to multi-centricity in statutory meaning entrenchment, Note
140. A.R. Gluck, 'Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond' (2011) 121(3) Yale Law Journal 534.
141. 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, 496-498 and 504.
142. Case C-473/07 Association Nationale Pour la Protection des Eaux et Rivières-TOS and Association OABA v. Ministère de l'Ecologie, du Développement et de l'Aménagement Durables [2009] ECR I- 319.
143. Case C-473/07 Association Nationale Pour la Protection des Eaux et Rivières-TOS and Association OABA v. Ministère de l'Ecologie, du Développement et de l'Aménagement Durables [2009] ECR I-319 at [30].
144. Case C-342/05 Commission of the European Communities v. Republic of Finland [2007] ECR I- 4713 at [29].
145. J. Scott, 'In Legal Limbo: Post-Legislative Guidance as a Challenge for European Administrative Law' (2011) 48 Common Market Law Review 329, 354 fn. 112.
146. T. Prosser, 'Conclusion: Ten Lessons' in D. Oliver, T. Prosser and R. Rawlings (eds.), The Regulatory State: Constitutional Implications (Oxford University Press 2010) 313.