What the courts generally did in reviewing technical measures

The determination of a matter in litigation in modern system of administering justice depends on two things: (I) a finding that certain facts exist or existed; (II) an application of certain rules to such facts, whereupon a final judgment is rendered .



In order to make a factual finding, the court relies on evidence before it. The modern trial is based on the rationale ascertaining of facts and a rational application of rules, to replace the ancient modes of proof based on the intervention of the deity such as the ordeal or the battle . This tradition originated in the Enlightenment period and has been characterized in the West as the rationalist tradition . The jury or the court will determine the disputed facts by assessing the probative of the evidence before it based on the ordinary agree of knowledge and experience it owns . However, it is recognized that some technical matters may go far beyond the ordinary agree of knowledge and experience the court or the jury owns. It is thus necessary to seek the technical advice out of the court room from experts, in order for the court or the jury to understand the significance of the evidence and to make necessary inferences .


In the early time, the court overcame the technical difficulties by two means. The first method was to impanel a special jury with specific experience fitted to know the technical issues before the court . Second, the court could call skilled persons into the court to help resolve technical questions . Taylor mentioned that in the early development of English rules of evidence, experts were thought as helpers of the court, rather than expert witness brought by parties . Hand even indicated that, in an urban community, where the questions involving special skill would come up, it was a well-established practice in the fourteenth century that specially quailed people should decided those technical cases . Later, it became well-established in the interpretation of commercial instruments, and in the eighteenth century, it extended from the complex facts to points of law .


Moreover, the modern rational method of settling disputes is based on the assumption that factual questions and legal questions can be clearly ascertained and divided . In cases involving prospective analysis, it is not for the court to decide that certain facts exist or existed but to predict whether certain risks or economic effects will happen in the future. It is questioned whether the use of currently existing evidence is sufficient for the court to predict the future events or whether the court has the expertise to conduct prediction by itself. Especially, for measures coping with uncertain risks, the limit of science cannot offer the court certain answers for uncertain risks . In other words, uncertain risks are the facts which cannot be ascertained by the court on the basis of scientific evidence. In cases involving scientific issues, it is even doubtful that court can clearly divide factual questions from legal arguments when reviewing whether a ban or a restricted measure is necessary or sufficient to avoid certain risks .


Therefore, based on the practice established by the court in the past and the new challenges brought by the cases involving prospective analysis, it might be necessary to rethink the modern rational method employed by the court in deciding technical measures involving a prospective analysis of the facts . Is it still appropriate to allow the court to use its own knowledge and experience to determine the technical measures? Is it sufficient for the court to rely on expert witnesses brought by the parties to determine the technical matters? These questions would be answered in the next Chapters.

對於美牛進口問題（是否解禁瘦肉精）是否能像歐盟法院借鏡學習的補充說明

1.引用Sandoz, 是因為後來的歐盟法院判決，很多都引用Sandoz, 在法院實踐上，它是leading case, 該案最早開始討論當科學不能確定風險時，政府該怎麼辦？並且當我看到歐盟連處理維他命都那麼謹慎時，不禁覺得，我們是否應更謹慎處理瘦肉精呢？


2.Sandoz一案中，法院承認攝取維他命，可能對人體進康有利，過分攝取，又可能對人體健康有害。對於攝取多少維他命才算過量，科學家無法確定（可能不同意見，各說各話）。並且承認，要計算一般市民會攝取多少維他命，也難以確定，會有困難。這些都是在評估瘦肉精風險時，同樣可能遇到的情況。

3.所謂科學上不確定風險，不會因為官方研究報告說確定，就會變成確定。要廣泛蒐集科學界的看法，美國最高法院尚且指出，不能單以科學界的多數意見為準，WTO上訴小組報告，也允許會員國採取少數但來源可靠的科學意見，作為其風險管理措施的立論基礎。否則像Pfizer, BSE, 這些案件如果因官方報告說確定就變成確定，也沒甚麼好吵的。基因改造食品也是，European Food Safety Agency 跟奧地利的看法完全不同，到現在在歐盟內部都是僵局。

4.對於Sandoz 案，我的理解是，該案子為後來的預防原則埋下伏筆。也就是說，關鍵在於，使用瘦肉精是否造成＂不確定風險＂。如果是，這裡我的觀察，比例原則的要求會降低，特別是一如維他命一般市民會攝取多少，難以估算，瘦肉精也許也有這樣的問題。對於衛生署的報告，我其實持保留的態度，某些專家針對報告是有批評。而當有相反的科學意見出現時，正是符合　＂　構成不確定風險　＂　的因素之一。

5.歐盟法院對於貨品流通自由原則的例外判決，在公眾健康上，於進入二十世紀後，已經改採預防原則了（預防原則甚至可以成為歐盟法院的審查基準），這一點無論是法院實踐，還是很多大學者都肯定了，當科學無法確定風險時，是無法完整進行成本與利益分析的，也因此比例原則的要求會降低。

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What Taiwan can learn from the EU Health Law in the issue of US beef imports

1.Article 36 TFEU aithorizes one Member State to prohibit the imports of goods from the other Member States, on the ground of public health.


2.In Sandoz (Case 174/82), the backgound is about the use of vitamins in food. It was admitted that, vitamins could be beneficial to human health, but it was also accepted that excessive consumption could be harmful to health. The backgound is very similar to the situation we face now in the imports of US beef.

3.In Sandoz, scientific evidence was not certain about at which consumption of vitamins became excessive, in particular since vitamins consumed in one source of food might be added to those eaten from a different food source. Again, the very simialr difficulty of culculating problem we may face in US beef.

4.Indeed, we need more evidence to ban the imports of US beef which have been lawfully manufactured and marketed in the US and the other trading partners. In this regard, The ECJ in Commission v. Germany emphasizes (Case 178/84) that, both the findings of international scientific research from WHO, Codex, FAO and the eating habits prevailing in the importing Member States need to be taken into account (Case 178/84, para. 44). In our case, it is worthy to note that the eating habits in Taiwan is much different from the US.

5.Finally, if we determine to continue the ban, we also need to prove that the ban of US beef on the ground of public health does not result in favoring national production methods and thus constitutes a disguised means of protecting domestic pork industry(Case 178/84, para. 51). If Ma administration detemine to open the US beef imports, it is also necessary to consider whether the compulsory affixing of suitalbe labells on US beef is sufficient to inform our consumers and to portect public health.

6.This article is free to be referred but please mention the name of author and keep the integrity of the content.

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