A recent judgment undermines legitimacy in risk regulation.
A recent judgment of the Court of Justice of the European Union in a case called Gowan seems to confirm the most pessimistic views from both sides of the Atlantic about the dangers of the precautionary principle. According to this principle, nations are justified adopting protective regulatory measures in situations of scientific uncertainty. However, the principle’s detractors argue that it offers limited guidance to policymakers and worryingly expands regulatory discretion, thereby risking illegitimate dominance of the state over its citizens.
In Gowan, the Court considered whether the European Commission made a “manifest error of assessment” when it placed severe restrictions on uses of fenarimol, a pesticide, despite the Commission’s earlier risk assessment and draft proposal indicating the pesticide caused little harm. The Court upheld the restrictions, accepting the Commission’s reliance on the precautionary principle without inquiring into whether its analysis was conducted properly. The result leaves the European Commission with far too much discretion and far too little guidance.
The Gowan judgment epitomizes the EU’s current struggle to reconcile a flexible, precautionary-oriented regulatory approach with rational, evidence-based decision-making in the emerging area of risk regulation. Gowan adds to a well-known line of cases (most recently, Pfizer) in which the precautionary principle is used as a shield to defend against a challenge that an EU provision is allegedly not based on the outcome of sound risk assessments.
Yet under settled case law, precautionary action is allowed only if the uncertain risk is more than “purely hypothetical.” Any precautionary measures must also be applied in a non-discriminatory fashion, be consistent with measures already taken, and be based on a benefit-cost evaluation and a complete risk assessment.
In Gowan, although the Court paid lip service to this case law, it refused to scrutinize whether the Commission’s decision met those conditions. It rather contented itself with a cursory look at the varied mix of scientific evidence gathered by the policymakers (not the risk assessors) without attempting to identify whether the Commission took the proper procedural steps.
Although the Court endorsed the need to review risk-based public decision making for more than scientific accuracy, as required by Pfizer, it still refused to serve its proper gatekeeping function, thus weakening the legitimacy of the EU’s risk decision-making process. This decision allowed the Commission to invoke the precautionary principle without facing any form of effective judicial scrutiny.
To prevent arbitrary decisionmaking disguised under precautionary clothes in the future, EU courts should not hesitate to assert control over the techno-scientific process preceding the adoption of risk decisions as well as scrutinize the relationship between that process and the final risk management decisions supposedly based on that process. This control is imperative not only for the credibility of the precautionary principle, but also for the legitimacy of the EU’s risk decision-making as a general principle of EU law.
