EU courts, global risks, and the health and environmental safety revisited : on nuances of a less deferential standard of review

Abstract

This paper examines judicial reasoning in risk regulation cases from the perspective of the standard of review. It takes a doctrinal-positivist approach and uses the decisions of the Court of Justice of the European Union, where it is asked to decide on powers of national (and EU) authorities to adopt measures restricting the functioning of the internal market on the grounds of human health and the safety of the environment, as a case-study. In these cases EU Courts have to face and decide on difficult questions of risk, scientific risk assessment, and uncertainty. The paper argues that in these factually, scientifically, and politically complex cases the traditionally limited scope of judicial review has moved towards a more broader evaluation by European judges of scientific and risk issues. Thus, the formally deferential standard of review in reality appears to have become a much more restrictive one, through paradoxically, the extensive review of procedural guarantees and of the plausibility of (scientific) evidence. It has the implications of the CJEU engaging in structuring decision-making processes on risk, but at the same time possibly lacking a clear vision on how to deal with the knowledge paradoxes and scientific uncertainty. This in turn provokes a broader question what should be the place for EU courts in transnational risk regulation.