Judicial Review in the 'Effects-Based' Approach: A Focus on Process Over Substance

The article discusses the issue of judicial review in the context of the 'effects-based', more economic approach. The Court of Justice has developed a process-oriented review paradigm, which focuses on procedural errors instead of substantive assessments. The scope of this review has been magnified by the demand to consider all relevant circumstances, which creates tensions between procedural and evidential standards. Defining 'relevance' and dealing with incompleteness are important issues that require further reflection. The focus on finding errors may lead to a 'tunnel vision' and a reluctance to reassess the case and evidence. The Commission must prove its case based on the arguments and evidence in the decision, while the applicant can provide new evidence during court proceedings. The Court must examine if the uncontested points and evidence in the decision can still sustain the substantive finding in question.