From section 2 to section 3, it has been
indicated that the ambitious risk governance regimes under EU law should aim to
make a balance between free movement of goods and a high level protection of
health, safety and environment[1]. Also, in the process of
risk decision-making, regulators need to strike a balance between scientific
and non-scientific concerns[2]. Therefore, the use of
sound science and the incorporation of social and ethics concerns through
public participation in the process of risk decision-making are both equally
important for good risk governance[3]. However, the above
sections also have shown that, in practice, many potential inconsistencies
might exist between the ambitious claims and the real practices in EU risk governance.
In section 2, it has been mentioned that, in
order to regain public confidence in the administration of risk by the EU and
Member States, regulators chose to redesign the risk governance regimes by
separating risk assessment from risk management and assigning risk assessment
to the new creation of independent agencies composed of qualified and
independent staff[4].
However, though the Commission also claimed to strengthen transparency and
public participation in the process of risk decision-making to reflect social
and ethic values[5],
regulators in practice still tend to solely rely on scientific expertise to
make decisions[6].
Sometimes, regulators even hind behind scientific expertise to pursue their own
goals[7]. Therefore, it seems that the first potential inconsistency existing between ambitious
claims and the real practices by the regulators is that regulators might not really add social and ethic concerns
into their considerations. Rather, it
seems the dominating factor in the process of decision making is still
scientific standards[8]. It can be also observed that
in Commission’s Communication, the Commission did not pay much attention on
non-scientific concerns like social and ethic values as it initially claimed to
do[9].
The second potential inconsistency existing between ambitious claims and the real
practices by regulators is that new independent agencies might fail to fulfill its tasks by independently
examining the product promoted by producers. While those independent agencies claim
to provide independent and excellent scientific advice, in practice, as Marjolein,
Van Asselt and Vos have observed in Monsanto cases, they only examined product
data provided by producers, rather than conducting independent studies by
themselves[10].
In addition, they have even shown an uncertainty intolerance attitude to deny
or refuse any uncertain information in their own assessment[11]. It is entirely contrary
to the natures of uncertain risks they are required to assess, since uncertain
risks, in essence, cannot be fully predicted or determined by science[12]. Since science cannot
certain uncertain risks as it did for simple risks, it is therefore necessary
to use the precautionary principle to protect important interests such as human
health. If in practice, experts tend to deny r the existence of uncertainty,
this might lead to
worse situations that uncertain risks have not been adequately addressed[13].
The third potential inconsistency existing between ambitious claims and the real
practices by regulators is that, while the Commission claimed itself as a risk
regulator to make risk management decisions, in practice, it seems that the
Commission tends to follow the advice offered by independent agencies[14]. Although both academic
and the decision of the European Courts claimed it should be for the political
organs to make risk management decisions[15], in practice, as scholars
observed, the relationship between the Commission and independent agencies is
as the blind driver (the Commission) guided by independent agencies[16]. The agency, per se, might have become the real risk manager in EU risk
governance. This would lead to the
concern about accountability, since agencies, as the real player, is not
accountable for the public and is not subject to judicial review of the
European Courts[17].
The fourth potential inconsistency existing between ambitious claims and the real
practices by the European Courts is that, though the Commission should be bound
by its Communication[18], also the European Courts
confirmed this point in their rulings[19], the European Courts did not virtually review the regulatory practices of the Commission
as the Commission promised in its Communication . In Pfizer, the General Court did not examine whether the Commission
has presented the equal scientific evidence to support its own decisions, when
its decisions is contrary to the opinions provided by the relevant agencies or
professional committees[20]. Again, later in Gowan[21], the court of Justice of
the European Union did not require the procedural guarantees the EU
institutions ought to offer by asking the Commission to provide a statement of
reasons with a scientific level at least commensurate with the opinions offered
by its committees, when it departed from the scientific opinions of its
committees[22].
[1] See A. Alemanno, The Shaping of European Risk Regulation by Community Courts, Jean Monnet
Working Paper 18/08, p. 8.
[2] See M. Everson and E. Vos, European Risk Governance in a Global Context, in E.
Vos, (ed.). European Risk Governance: its
science, its inconclusiveness and its effectiveness, Connex Report Series
2008, p. 22.
[3] Ibid, p. 25.
[4] See G. Skogstad, ‘Legitimacy and/or policy effectiveness? Network
governance and GMO regulation in the European Union’, Journal of European Public Policy, (2003), 10 (3), pp. 321-338, p.
325.
[5] See, M. Everson and E. Vos, supra note 2, p. 17.
[6] Ibid, p. 17.
[7] M.B. A. Van Asselt and E. Vos, ‘The Precautionary Principle and the
Uncertainty Paradox’, Journal of Risk Research, 2006 9 (4) 313, pp. 331-333.
[8] M. Everson and E. Vos, supra note 2, p. 21.
[9] E. Fisher,‘Reviews: The European Commission’s Communication on the Precautionary
Principle’, Journal of Environmental Law,
12 (3) 2000, p. 404.
[10] See B. A, Marjolein, M. B. A. Van Asselt and E. Vos, ‘Wrestling with Uncertain Risks : EU Regulation of GMOs and the
Uncertainty Paradox’, Journal of Risk
Research, 2008, Vol. 11, No. 1-2, 281-300, p. 284.
[11] Ibid, pp. 284-285.
[12] M.B. A. Van Asselt and E. Vos, ‘The Precautionary Principle and the Uncertainty Paradox’, Journal of
Risk Research, 2006 9 (4) 313, pp. 314-316.
[13] B. Wynne, ‘Creating Public Alienation: Expert Cultures of Risks and Ethics’,
Science as Culture, 2001, 10 (4), 445-481, p.
458.
[14] E. Vos and F. A. Wendler , ‘Food Safety Regulation at the EU Level’, in E. Vos and F. A. Wendler (eds.), Food Safety Regulation in Europe-A comparative Institutional Analysis (Ius Commune Europarum, 62), (Anmtwerp: Intersentia), 65-138, p. 122.
[16] E. Vos and F. A. Wendler, supra note 14, p. 122.
[17] See M. de Visser, “Judicial accountability and new governance ", Legal Issues of Economic Integration, (2010) 37(1), pp. 41-60.
[18] N. de Sadeleer, ‘The Precautionary Principle in EC Health and Environmental Law’, European Law Journal, 12 (2) 2006,
139-173,
pp. 141-142.
[20] E. Vos, ‘Antibiotics, the Precautionary Principle and the Court of
First Instance’, 11 MJ (2) 2004, p.
199.
[21] Case C-77/09, Gowan Comércio
Internacional e Serviços Lda v Ministero della Salute, Judgment of the
Court (Second Chamber) of 22 December 2010, not yet reported.
[22] A. Alemanno, Annotation of European Court of Justice, Case C-79/09,
Gowan Comércio Internacional e Serviços
Lda v. Ministero Della Salute (Precautionary Principle), (2011) 48 CML Rev. 4, at p. 9.
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