突破歐盟法院針對風險管制措施的司法審查密度的幾點想法

• 突破歐盟法院是否應審查歐盟(行政)機關制定的風險管制措施，其科學背景、證據支持的幾點想法:
• 回答法院應不應審查，直接回答可能是困難的，將陷入政治科學、分權理論的爭議。

第一個可能的突破點是，法院實質上已經針對歐盟(行政)機關制定的風險管制措施，其根據的科學背景進行審查，所以應該討論的，不是應不應審查，而是應該審查到甚麼程度。

第二個可能的突破點是，作為國際爭端解決機制的一種，歐盟法院的兩造當事人，往往是國家跟歐盟，甚至歐盟機關彼此間，過去國內行政法慣常的實踐，認為法院應該尊重一造政治部們的政治判斷或專業判斷(另一造往往是人民)，並不成立。因為現在兩造都是有能力做出專業判斷，或是有民主正當性做出政治決策的適格機關。因此，法院處於一個必須針對兩個衝突的政治與專業兼具的兩造意見中，作出裁判的情境，法院無法用尊重一造當事人的政治或專業判斷，迴避實質審查。

第三個可能的突破點是，坦率承認歐盟法院作為歐盟條約的機關之一，與其他機關同樣負有依條約實現歐洲統合的義務，實踐上歐盟法院過去五十年也一直在扮演這樣的角色，以歐盟統合為大前提，作出歐洲統合為目的的解釋，進行合條約審查義務。而合條約審查，肇因於歐盟條約解釋的特殊性(二十七國文本，難以固定於一致文義；政治妥協下的抽象文字，提供廣泛的操作空間；有時欠缺各個會員國共同承認的立法文件，難以探知當時的立法者意向)，本來就比傳統合法性審查空間更廣泛。既然歐盟條約並無明確規範法院的審查基準，為了維護動態權力平衡，歐盟法院自得對於歐盟(行政)機關制定的風險管制措施，其科學背景、證據支持，進行更實質深入的司法審查。

如果上述三點成立，那麼研究問題不應是歐盟法院應否實質審查歐盟(行政)機關制定的風險管制措其科學背景，而是法院該審查的密度為何? 以及如何在程序上協助法院進行審查。

期待您的意見回饋與討論，並不吝賜教。

The WTO Experience: It is Unavoidable for the Adjudicators to Make a Decision between Two Conflicting Technical Opinions

As the European Law is also a branch of international law families, it is also worthy to observe the development of standard of review in reviewing technical measures under international law. In particular, the European Union is subject to the obligations provided by the World Trade Organization (WTO) law[1]. It is therefore interesting to observe under the similar circumstances what the dispute settlement mechanism of the WTO has done in deciding cases involving technical issues.

First, the notion of standard of review draws from domestic administrative laws, which does not apply in any formal sense in disputes over compliance with public international law[2]. The notion refers to the intensity of international judicial scrutiny of activities of nation states[3]. There is strong advocacy for standard of reviews incorporating a significant level of deference towards national decision-making[4]. This may be due to the lack of experience and expertise of international adjudicators to closely engage in scientific and technical issues. More importantly, it concerns about the loss of sovereignty associated with participating in the multilateral trade regime[5]. Many discussions relate to how to sustain democratic decision-making about risk in the hands of nation states[6]. It is even doubtful whether the adjudicative framework is an appropriate substitute for administrative decision-making of nation states in the highly technical fields[7].

Although it seems that a standard of reviews incorporating a significant level of deference towards national decision-making sounds well in theory, in practice, the Appellate Body of the WTO in European Communities-Measures Concerning Meat and Meat Products (Hormones)[8] found that, neither de novo review[9] nor full deference[10] is required from a panel assessing the legality of trade measures of a member. According to Article 11 of the WTO Dispute Settlement Understanding, the panel has to make an objective assessment of matter before it, including the facts. Therefore, the type of standard of review by the WTO adjudicative body is neither the first type nor the fourth type indicated in the former section. In addition, as Croley and Jackson indicated, reducing international adjudication to a form of purely procedural review would be extremely inconsistent with operating a system of substantive international rules intended to regulate a balance of interests at international level[11].

Furthermore, despite the lack of experience and expertise of the WTO adjudicative body dealing with scientific and technical issues, both Article 2.2 of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) and Article XX of the General Agreement on Tariffs and Trade (GATT 1994) require that, the WTO Adjudicative body shall review whether the measure of a Member State aim at protecting public health is ‘necessary’. It is therefore inevitable for the WTO Adjudicative body to both substantially review the discretions and factual findings exercised by national authorities of Members[12].

Very similarly, in the context of free movement of goods and the operation of the internal market, when facing disputes between Union institutions and Member States, like the WTO adjudicative body did in cases involving scientific and technical issues, the European Courts have to resolve the dispute between parties both equipped with sufficient expertise assessing scientific and complex matters. In this respect, as mentioned before, the general practice that the court shall defer to the discretion of the initial decision-makers in cases involving technical matters no longer applies[13], since in this situation both parties are qualified factual investigators and capable of assessing scientific and complex matters. In this respect, the Court is forced to render a decision between parties, in order to ensure that in the interpretation and application of the Treaty the law should be observed.

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[1] P. Van den Bossche, The Law and Policy of the World Trade Organization: Texts, Cases and Materials, Cambridge 2008, at p. 104.

[2] C. E. Foster, Science and the Precautionary Principle in International Courts and Tribunals-Expert Evidence, Burden of Proof and Finality, Cambridge 2011, at p. 14.

[3] See M. Oesch, Standard of Review in WTO Dispute Resolution, Oxford 2003, at p. 15.

[4] See D. Wirth, ‘The role of science in the Uruguay round and NAFTA trade disciplines’ (1994) 27 Cornell International Law Journal 817, at pp. 817-859.

[5] C. E. Foster, Science and the Precautionary Principle in International Courts and Tribunals-Expert Evidence, Burden of Proof and Finality, Cambridge 2011, at p. 15.

[6] R. Howse, ‘Democracy, science, and free trade: Risk regulation on trial at the World Trade Organization’ (2000) 98 Michigan Law Review 2329-57.

[7] E. Fisher, Risk Regulation and Administrative Constitutionalism, Oxford 2007, Chapter 5.

[8] See Appellate Body Report, European Communities-Measures Concerning Meat and Meat Products (Hormones), Complaints by Canada (WT/DS48) and by the United States (WT/DS26).

[9] The de novo review allows the court to substitute his/her own finding for those of the national authority, see A. Alemanno, Trade in Food, Regulatory and Judicial Approaches to Food Safety, Cameron 2007, at p. 318.

[10] The full deference prevents the court from substantially reviewing the investigations conducted by the initial decision-makers, see A. Alemanno, Trade in Food, Regulatory and Judicial Approaches to Food Safety, Cameron 2007, at p. 318.

[11] See P. S. Croley and J. H. Jackson, ‘WTO dispute procedure, standard of review, and deference to national governments’ (1996) 90 American Journal of International Law 193, at p. 209.

[12] See P. Van den Bossche, The Law and Policy of the World Trade Organization: Texts, Cases and Materials, Cambridge 2008, at pp. 622-628, pp. 858-862.

[13] However, it may not be suitable for an ordinary court to substitute its own judgment on a statute for a reasonable interpretation made by a special agency, considering the fact that the agency making the initial judgment may have significant knowledge, expertise, more than the court. See P. Craig, EU Administrative Law, Oxford 2006, at pp. 436-437.

Working Paper: Free Evaluation and Its Insufficiency

The determination of a matter in litigation in modern judicial systems 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[1].  

In order to make a factual finding, the court relies on evidence brought by parties. The modern adjudication 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[2]. This tradition originated in the Enlightenment period and has been characterized in the West as the rationalist tradition[3]. Both common law and continental law have recognized that, the jury or the court shall be in principal free to evaluate the evidence based on the ordinary agree of knowledge and the ordinary rules of experience it owns[4]. From the continental perspective, Jolowicz argues that, it is for judges to evaluate the proofs according to his/her own appreciation of them[5]. From the common law perspective, Barzun argues that, modern evidence law tells judges whether a given piece of evidence is admitted only; it does not attempt to instruct the fact finder how to evaluate it[6]. 

However, it is commonly recognized that some technical matters may go far beyond the ordinary agree of knowledge and experience the court or the jury owns. From the common law perspective, when the judge considers his/her own knowledge or experience is insufficient, he/she may allow the parties to bring their experts witnesses to offer technical opinions[7]. From the continental perspective, in France, it is well recognized that, on a technical matter, the judge shall generally call upon an expert rather than rely on his/her personal experience even he/she thinks it is sufficient[8]. Similarly, in Germany, judges need to explain why they consider their own knowledge is sufficient to decide the technical questions[9]. It is thus necessary to seek the technical advice out of the court room from experts, in order for the judge or the jury to understand the significance of the evidence and to make necessary inferences[10].

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[11]. Second, the court could call skilled persons into the court to help resolve technical questions[12]. 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[13]. 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[14]. 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[15].

Similarly, in France, it is tradition for judges to rely on the experts to determine to the technical matters[16]. Although Judges are not bound by the expert’s opinion, in practice, they tend to rely on the expert’s technical opinions[17].

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[18]. 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 materialize in the future. The questions thus raise whether the use of currently existing evidence procedures 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[19]. In other words, uncertain risks are the facts which cannot be ascertained by the court on the basis of scientific evidence. In cases concerning scientific issues, it is even doubtful that courts 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[20]. 

Therefore, based on the practice established by the English and French courts in the past and the new challenges brought by the cases involving non-legal evidence before the European Courts nowadays[21], 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 following Chapters.

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[1] L. Rosenthal, ‘The Development of the Use of Expert Testimony’, 2 Law & Contemp. Probs. 402 1935, at 403.

[2] R. F. Taylor, ‘A Comparative Study of Expert Testimony in France and the United States: Philosophical Underpinnings, History, Practices, and Procedure’, 31 Tex. Int’l L. J. 181 1996, at p. 185.

[3] See W. Twining, Rethinking Evidence, Cambridge 2006, at pp. 75-80 and T. Anderson, D. Schum and W. Twining, Analysis of Evidence, Cambridge 2005, at pp. 78-87.

[4] J. A. Jolowicz, On Civil Procedure, Cambridge 2000, at pp. 213-215. L. Rosenthal, ‘The Development of the Use of Expert Testimony’, 2 Law & Contemp. Probs. 402 1935, at p. 403.

[5] J. A. Jolowicz, On Civil Procedure, Cambridge 2000, at p. 213.

[6] Charles L. Barzun, Rules of Weight, Notre Dame L. Rev., Vol. 83 No. 5 (2007-2008), at p. 1957.

[7] Thus, it is inevitable for the judge to decide between conflicting expert testimony and it is the judge’s constitutional duty to do so, see J. A. Jolowicz, On Civil Procedure, Cambridge 2000, at pp. 257-258.

[8] J. A. Jolowicz, On Civil Procedure, Cambridge 2000, at p. 259.

[9] Ibid, at p. 259.

[10] L. Rosenthal, ‘The Development of the Use of Expert Testimony’, 2 Law & Contemp. Probs. 402 1935, at p. 404.

[11] L. Hand, ‘Historical and Practical Considerations Regarding Expert Testimony’, 15 Harv. L. Rev. 40 1901-1902, at p. 40.  Nowadays, in four canons of Switzerland, civil matters could be heard in commercial court composed of three judges and two assessors drawn from the local chambers of commerce, see F. Dessemontet and T. Ansay (eds.), Introduction to Swiss Law, Kluwer 2004, at p. 289.

[12] R. F. Taylor, ‘A Comparative Study of Expert Testimony in France and the United States: Philosophical Underpinnings, History, Practices, and Procedure’, 31 Tex. Int’l L. J. 181 1996, at p. 186.  Similarly, under French Civil Procedural Law, expert evidence can be seen as an extension of the court, see J. A. Jolowicz, On Civil Procedure, Cambridge 2000, at p. 234 and J .Beardsley, ‘Proof of Fact in French Civil Procedure’, (1986) 34 Am. J. Comp. L. 459, at p. 480.

[13] R. F. Taylor, ‘A Comparative Study of Expert Testimony in France and the United States: Philosophical Underpinnings, History, Practices, and Procedure’, 31 Tex. Int’l L. J. 181 1996, at p. 186.

[14] See J. A. Jolowicz, On Civil Procedure, Cambridge 2000, at p. 229 and L. Hand, ‘Historical and Practical Considerations Regarding Expert Testimony’, 15 Harv. L. Rev. 40 1901-1902, at p. 42.

[15] L. Hand, ‘Historical and Practical Considerations Regarding Expert Testimony’, 15 Harv. L. Rev. 40 1901-1902, at p. 43.

[16] R. F. Taylor, ‘A Comparative Study of Expert Testimony in France and the United States: Philosophical Underpinnings, History, Practices, and Procedure’, 31 Tex. Int’l L. J. 181 1996, at pp. 186-188.

[17] Under French Civil Procedural Law, expert evidence can be seen as an extension of the court, see J. A. Jolowicz, On Civil Procedure, Cambridge 2000, at p. 234 and J .Beardsley, ‘Proof of Fact in French Civil Procedure’, (1986) 34 Am. J. Comp. L. 459, at p. 480.

[18] C. E. Foster, Science and the Precautionary Principle in International Courts and Tribunals-Expert Evidence, Burden of Proof and Finality, Cambridge 2011, at p. 6.

[19] The so-called uncertainty paradox happened between scientific experts, judges, regulators indicated by Asselt and Vos in their works would be detailed discussed in the next Chapter, see M.B.A. Van Asselt and E. Vos, ‘Precautionary Principle and the Uncertain Paradox’, (2006) Journal of Risk Research 9 (4), at pp. 317-318. Also, in US Law, the doctrine of the frontier of science recognized the limits of science to offer the courts the answer, see Martin Shapiro, ‘The Frontiers of Science Doctrine: American Experiences with the Judicial Control of Science-Based Decision-Making’, in Joerges, Ladeur and Vos (eds.), Integrating Scientific Expertise into Regulatory Decision-Making: National Traditions and European Innovations, Nomos Verl.-Ges., 1997, pp. 327-328.

[20] C. E. Foster, Science and the Precautionary Principle in International Courts and Tribunals-Expert Evidence, Burden of Proof and Finality, Cambridge 2011, at p. 6.

[21] C. Joerges, ‘Scientific Expertise in Social Regulation and the European Court of Justice: Legal Framework for Decentralized Governance Structures’, in Joerges, Ladeur and Vos (eds.), Integrating Scientific Expertise into Regulatory Decision-Making: National Traditions and European Innovations, Nomos Verl.-Ges., 1997, p. 295.