More than EU Courts, Less than EU Agencies: Intensifying the Boards of Appeal's Standard of Review After Aquind

Abstract

Since the nineties of the past century the EU has established multiple agencies in specific policy fields, increasingly having individual decision-making powers in the field concerned. As judicial review is vital to the legitimacy of agencies, Boards of Appeal (BoAs) have been set up who offer a first level of protection for individuals affected by agencies’ decisions. An important question, examined in this paper, is how intensive the BoAs should review these decision. Can they restrict themselves to a limited review, mirroring the stance of the EU Courts, or should they conduct a more intensive review? In the important case of Aquind in 2023 the Court of Justice has decided in favor of the latter view. According to it, BoAs cannot merely conduct a limited review but, instead, must intensify their review. At the same time, the EU courts acknowledge that BoAs cannot be expected to repeat the initial decision-making process. A middle ground must be struck between these two approaches. This paper aims to place the Aquind-judgment in context, in order to examine what this middle ground could entail. This will be done by exploring what Court has stated in the ruling, and evaluate how the BoAs have implemented these findings thus far in their own decisions. The evaluation shows that Aquind has clarified the level of review issue to some extent, but still leaves some vital questions. An important one is who will at the end decide on issues of scientific uncertainty, the agency or the BoA.