TY - UNPB
T1 - EU Courts, Global Risks, and the Health and Environmental Safety Revisited: On Nuances of a Less Deferential Standard of Review
T2 - EUI Working Paper RSCAS 2013/63
AU - Dabrowska-Klosinska, Patrycja
PY - 2013/7
Y1 - 2013/7
N2 - 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.
AB - 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.
UR - http://cadmus.eui.eu/bitstream/handle/1814/27702/RSCAS_2013_63.pdf?sequence=1
M3 - Working paper
BT - EU Courts, Global Risks, and the Health and Environmental Safety Revisited: On Nuances of a Less Deferential Standard of Review
ER -