While, it is not unusual for the EU Court to appoint neutral expert[1], it is rare for the EU Court to appoint the neutral expert when reviewing the scientific-based measures[2]. In particular, in case involved scientific issues, as mentioned in Chapter 2, the EU Court chose to construct the uncertainty by finding the scientific conflicting opinions in the documents the parties presented. According to the literature, below are the potential reasons why the use of neutral expert is exceptional[3].
First, the EU Court enjoys a wide discretion to determine whether commissioning an expert is necessary[4]. In practice, the EU Court normally does not appoint an expert unless the evidence before it is deficient in some material respects or the party has provides prima facie evidence in favor of her assertions[5].
Second, pursuant to Article 19.1 of the Treaty on European Union (TEU), the function of the EU Court is to ensure that in the interpretation and application of the Treaties the law is observed. The EU Court is not bound in every case to carry out a detailed investigation into every question of fact. In addition, its duty to ensure the observation of law is tempered by the need to decide the case in time, so that the justice is not denied by delay[6]. Consequently, the EU Court is only bound to take sufficient steps to solve the case[7].
Third, as mentioned before, the EU Courts tend to respect the institution’s discretion on the factual basis of its action when it is called upon to assess the complex assessment[8]. As Barbier de La Serre and Sibony argued, the EU Courts seem to fear that relying upon the expert’s report would lead them to substitute their appreciation to that of the institution[9]. As A.G. Jacobs noted, the Court is not the appropriate forum to determine the scientific issues and those questions can only be answered by the scientists[10].
Fourth, the procedures of the EU Courts lack the detailed rules on the admissibility of evidence. As Lasok noted, whether the proved fact is able to support the existence of the particular fact is normally determined by the Court in the light of ordinary experience[11]. Hence, the EU Court enjoys a wide discretion to put its own personal knowledge or experience to establish the factual contexts of the case. As mentioned before, the EU Court in Pfizer[12] pretended to be a scientist to construct scientific uncertainty[13].
Finally, the EU Court fears to delegate its power to external experts by adopting an expert’s report[14]. In addition as Alemanno argued, the EU Court might feel that submitting one of these studies to a third party review would amount to questioning both the scientific and institutional legitimacy of these committees, which ultimately belong to the same system of governance[15].
[1] Case T-313/01, R v Commission [2004] ECR-SC I-A-129 and II-577, paras. 65. 76. 77. 102., 103; Case C 23/81, Commission v Royal belge [1983] ECR 2685, para. 7.
[2] A. Alemanno, ‘Scientific and EU Risk Regulation: The Role of Experts in Decision-Making and Judicial Review’, in Vos, European Risk Governance: its science, its inconclusiveness and its effectiveness, Connex Report Series 2008, at p. 63.
[3] B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at pp. 950-964.
[5] K.P.E. Lasok, The European Court of Justice Practice and Procedure, Buttersworth 1994, at pp. 366-372.
[6] Commissioning an expert may delay the proceedings, at least by a few months, while the EU Courts have strived to decrease the average length of the proceedings, see B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at p. 953.
[7] K.P.E. Lasok, The European Court of Justice Practice and Procedure, Buttersworth 1994, at p. 345.
[9] B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at pp. 953-954.
[10] Opinion of A.G. Jacobs in Case C-269.90 Technische Universitat Munchen v HauptzollamtMunchen-Mitte [1991] ECR I-5480, para. 15.
[11] K.P.E. Lasok, The European Court of Justice Practice and Procedure, Buttersworth 1994, at p. 437.
[13] Van Asselt and Vos, ‘Precautionary Principle and the Uncertain Paradox’, (2006) Journal of Risk Research 9 (4), at p. 329.
[14] B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at p. 961.
[15] A. Alemanno, ‘Scientific and EU Risk Regulation: The Role of Experts in Decision-Making and Judicial Review’, in Vos, European Risk Governance: its science, its inconclusiveness and its effectiveness, Connex Report Series 2008, at p. 64.
沒有留言:
張貼留言