Despite the limits of the use of individual experts in the current WTO dispute settlement, it is still a positive development to increase the use of expertise advice when assessing the scientific-based measures[1]. Expert’s advice not only ensures the expert legitimacy[2] of the panel’s decision, but it also reduces the level of scientific involvement of panels in disputes[3]. Considering the merits of the use of an expert review group aforementioned, as the Pfizer case has shown the necessity for the EU court to engage in scientific issues, it is reasonable to encourage the EU Court to increase the use of an expert group to assist it to deal with scientific debates.
Currently, when assessing the scientific-based measures, the EU Court tends not to appoint the expert and only seeks the information from the evidence brought by the parties to dispute or hears the testimonies of partisan experts brought by the parties[4]. This not only forces the EU Court to play a role as the scientific judge it is unable to play, but the values of expert evidence brought by the parties are also limited, since it is difficult not to see the partisan experts as hired guns. Therefore, the opinions expressed by the court-appointed experts will carry more weight than those expressed by the partisan experts[5]. Thus, this thesis suggests that, the EU Court should appoint the experts on its own motion[6], instead of relying on the partisan experts.
In order to encourage the EU Court to use the similar regime like the expert group provided by the WTO law, it is reasonable to look at the reasons discouraging the EU Court to use the expert evidence. Indeed, the use of an expert group is time-consuming, but it may be too high a price to pay for informed adjudications[7]. Also, relying on the external advices may replace the assessments made by the EU Committees or Agencies to support the contested measures. As a result, both the scientific and institutional legitimacy of these EU Committees or Agencies would be questioned[8]. However, in order to prevent the EU institutions from abusing the precautionary principle by constructing scientific uncertainty, it is necessary for the EU Court to review the divergently scientific opinions the institutions rely on is at least coming from qualified and respect sources, so that the basic procedural guarantee can be ensured. Without a judicial review carried by the EU Court to assess the decisions of the EU Institutions, the EU institutions may easily escape any control by exercising their powers in the technical field[9]. Even the EU institutions are entitled to enjoy a wide discretion in certain fields[10], in order for the EU Court to be able to examine whether the institutions has taken into account all scientific evidence available as well as the latest international research[11], appointing an expert is necessary to complete the competence of the EU Court.
However, one question still arises. Who is suitable for the EU Court to consult? Considering the fact that litigations before the EU Court are often between EU institutions or between the EU institutions and Member States, it is not appropriate to rely on the opinions offered by the EU Scientific Committees or Agencies, in order to avoid the biased situation[12]. Also, there is no hierarchy between the national research bodies and the EU’s research bodies[13]. One thing the EU Court can do is to avoid appointing the same body to examine the opinion it made[14]. As Alemanno argued, the opinions of the EU scientific bodies do not have precedence over diverging national opinions[15].
Nevertheless, even if the EU Court is willing to appoint the expert group on its own motion, due to the lack of the scientific background of the EU Court, it is still difficult for the EU Court to appoint the appropriate experts. We would recommend that it may be helpful for the EU Court to appoint the scientific clerks to assist the Court when selecting the experts, or the thorough way is to appoint the ad hoc assessors with relevant scientific expertise sitting on the bench to assist the deliberation without the right to vote.
[1] A. 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 p. 361.
[2] D. Bodansky, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law’, (1999) 93 AJIL 596, at p. 622.
[3] A. Alemanno, Trade in Food, Regulatory and Judicial Approaches to Food Safety, Cameron 2007, at p. 358.
[4] B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at pp. 966-968.
[6] It is admitted that, neutral experts are neither more competent than partisan experts, nor are they always without bias, nevertheless, as long as they do not have any interest conflicts or related to one of the parties, or they have disclosed their relations to both parties of the litigations, they are still comparatively independent from the parties, see Howard, ‘The Neutral Expert: A Plausible Threat to Justice’, (1991) Criminal Law Review 98, at p. 101.
[7] B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at p. 973.
[8] A. 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 p. 363.
[9] B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at p. 958.
[12] T. Christoforou, ‘Settlement of Science-Based Trade Disputes in the WTO: A Critical Review of the Developing Case Law in the Face of Scientific Uncertainty’, (1999-2000) 8 N.Y.U. Envtl. L. J. 622, at pp. 630-631.
[13] A. Alemanno, Trade in Food, Regulatory and Judicial Approaches to Food Safety, Cameron 2007, at p. 361.
[14] A. 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 p. 363.
[15] More details see A. Alemanno, ‘Food Safety and the Single European Market’, in C. Ansel and D. Vogel (eds), What;’s the Beef? The Contested Governance of European Food Safety, MIT Press 2006.
沒有留言:
張貼留言