Judicial Review of Scientific-Based Measures before the Court of Justice of the European Union: Problems and Solutions
1. Introduction
When the Court of Justice of the European Union (CJEU) reviewed the scientific-based measures, normally, the Court tended to respect the discretion of the Union authority on the factual basis of its measure when it is called upon to make scientific complex assessments in the performances of its duty[1]. Below is a good example to illuminate how judges are reluctant to be involved in scientific debates. Chief Justice of the US Supreme Court Rehnquist in his partial dissent opinion in Daubert[2] declared that:
I defer to no one in my confidence in federal judges; but I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its "falsifiability," and I suspect some of them will be, too.
I do not doubt that Rule 702 confides to the judge some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony. But I do not think it imposes on them either the obligation or the authority to become amateur scientists in order to perform that role[3].
Some scholars have indicated that the European courts in various cases, such as Pfizer,[4] have started to engage in scientific debates[5], and it is therefore interesting to observe the role the experts played in that case. Below is an interesting dialogue happened in Pfizer[6] between the Judge of the Court of First Instance (CFI, now the General Court) and the partisan experts[7] brought by parties to reveal the communicating problem between both sides:
Scientist: [...] You get the organisms in chickens; the organisms are transmitted to man and the rest of it flows. If you cannot demonstrate the rest of it, the whole thing comes to a stop. I do insist that no harm has been done. You have the potential and the hazard but it is not translated into a risk. That is my understanding of all the scientific evidence I have read.
Judge: Is that not to some extent playing on the words? You say it is a hazard and we had this morning the distinction between hazard and risk. If you have a hazard, it may become a risk. Is that not playing on the words?
Scientist: No. I do not believe it is. If you are defining your risk as the use of growth promoter in animals leading to resistance in animals, the hazard is translated into a risk. If you are saying has that hazard ever been translated into the transmission, on very rare occasions that has been demonstrated to be the case, so you are demonstrating risk there. What happens to those organisms once they contaminate food, once they are cooked, once they are ingested by man all has to be assessed before you say that you can turn the hazard into what is the risk, to me, which is the infection in man. I thought that was what we were talking about.[8]
Although some studies suggest the Court to commission the neutral expert to assist it to effectively assess the complex scientific facts when reviewing scientific-based measures[9], the above dialogue between a judge and an expert reveals that it may not be sufficient for the courts to use expert evidence.
What exactly constitutes now the problem between the EU administration, the Court and the scientific experts? According to the literature, the so-called ‘uncertainty paradox[10]’ results from the fact that science cannot provide decisive evidence on uncertain risks, lawyers and policy-makers appeal to science for some kind of plausibility proof[11]. Since the administration has to establish the existence of scientific uncertainty before adopting preventative measures, the Court unavoidably needs to decide whether the administration has misapplied the precautionary principle. However, due to the lack of knowledge to assess the merits of scientific evidence brought by parties, the Court tend to escape the real arguments involved in the case by constructing scientific uncertainties on the basis of conflicting scientific opinions, and this approach may lead to the abuse of the precautionary principle as criticized by the scholars[12].
This thesis aims to explore the difficulties the EU Courts may encounter when reviewing scientific-based measures. It would like to first observe the intensity of the judicial review of the EU Courts in the relevant cases. And second, what role could the scientific expert play when the EU Courts assess scientific evidence? Should the EU Courts be encouraged to rely more upon external scientific advisers like the WTO panels do?[13] Can the scientific expert consultation be seen as a useful tool to lighten the EU Court’s involvement in scientific debates[14]? Or is it a good idea to use the peer review to evaluate of the merits of scientific evidence brought by parties to dispute[15]? Last but not least what can we learn from the practice of WTO dispute settlement in assisting judges to understand the scientific issues by the experts[16]?
1.1 Research Outline
Below in Chapter 2, the standard of review of the EU Courts in the cases involved scientific issues would be analyzed, in order to show how the EU courts deal with uncertainty when applying precautionary principle. Chapter 3 analyzes the use of scientific experts by the EU Courts and compares with the use of scientific experts in the proceedings of WTO dispute settlement, in order to examine whether the EU courts shall increase the use of expert evidence when reviewing scientific-based measures. Chapter 4 summerises the findings and offers some reflexive thoughts.
[1] Case 98/78, Firma A. Racke v Hauptzollamt Mainz [1979] ECR 69, para 5, Case C-157/96, National Farmer’ Union an Others [1998] ECR I-2211, para. 39. Case T-13/99, Pfizer Animal Health v Council [2002] ECR II, paras. 168-169, and 323.
[3] Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 US 579, at 600-01 (Rehnquist, C.J., concurring in part and dissenting in part), and see Brewer, ‘Scientific Expert Testimony and Intellectula Due Process’, 107 Yale L.J. 1535 1997-1998, at pp. 1542-1553.
[5][5] Vos, Antibiotics, the Precautionary Principle and the Court of First Instance, 11 MJ 2 (2004), at p. 12; Alemanno, Trade in Food, Regulatory and Judicial Approaches to Food Safety, Cameron 2007, at pp. 329-330; Paul Craig, EU Administrative Law, Oxford 2006, at pp. 477-479.
[7] Partisan expert is not expert evidence within the meaning of Statute and the Rule of Procedure. It is presented to the courts either through the submission of an export’s report annexed to the party’s written pleadings or through an oral presentation during the hearing. See Lasok, The European Court of Justice: Practice and Procedure, Buttersworth 1994, at p. 398.
[8] Case T-13/99, Pfizer Animal Health SA v. Council of the European Union [2002] ECR II-03305, transcript of proceedings, quoted in M. Everson, A Path-Dependent Market Administration? A Comment to: E. Chiti, On European Agencies.
Van Asselt and Vos, ‘The Precautionary Principle in Times of Intermingled Uncertainty and Risks: Some Regulatory Complexities’, Water Science and Technology, 52 (6) 2005, at p. 50.
[9] Alemanno, Trade in Food, Regulatory and Judicial Approaches to Food Safety, Cameron 2007, at pp. ,at pp. 368-372; Barbier de La Serre and Sibony, ‘Expert Evidence Before The EC Courts’, (2008) CML. Rev., at pp. 968-984.
[10] Asselt and Vos, ‘Precautionary Principle and the Uncertain Paradox’, (2006) Journal of Risk Research 9 (4), at pp. 317-318.
[11] Van Asselt and Vos, ‘The Precautionary Principle in Times of Intermingled Uncertainty and Risks: Some Regulatory Complexities’, Water Science and Technology, 52 (6) 2005, at p. 42.
[12] Van Asselt and Vos, ‘The Precautionary Principle in Times of Intermingled Uncertainty and Risks: Some Regulatory Complexities’, Water Science and Technology, 52 (6) 2005, at p. 52.
[13] Alemanno, Trade in Food, Regulatory and Judicial Approaches to Food Safety, Cameron 2007, at pp. ,at p. 347; Pauwelyn, ‘The use of Experts in WTO Dispute Settlement’ [002]51ICQL, at pp. 327-329.
[14] Alemanno, ‘The Dialogue between Judges and Experts in WTO and EU’, in Fontanelli, Martinico, and Carrozza ed., Shaping Rule of Law through Dialogue: International and Supranational Experience, Europa Law Publishing 2010, at pp. 360-361.
[15] Alemanno, ‘Science and EU Risk Regulation: The Role of Experts in Decision-Making and Judicial Review’, in Vos (ed.), European Risk Governance: Its Science, Its Inclusiveness and Its Effectiveness, Connex Report Series 2008, at pp. 66-67.
[16] Vos, Antibiotics, the Precautionary Principle and the Court of First Instance, 11 MJ 2 (2004), at p. 14.
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