EU risk regulation reviewed by the European Courts

It is generally agreed that the BSE (‘mad cow’) and other food crises have been instrumental in shaping the way that the EU deals today with science underlying its decision-making. These crises have led to a fundamental change in our view of the legitimacy of government use of science, resulting in a quest for a higher quality of scientific advice used to verify agricultural production and food-processing methods together with increased transparency and broader participation in science-based decision-making. Today, the issue is not merely one of how to ensure that the science used in governance is sound, but it also encompasses the way that scientific opinion is balanced with wider ethical and social values. New approaches introduced by the EU in the wake of the BSE crisis sought to repair the deficiencies in EU risk regulation to make a clearer separation between risk assessment and risk management, clarify which portions of risk policy should be attributed to scientists and public administrations, and define new rules for the production of scientific advice, the introduction of the precautionary principle and increasing openness and participation (Everson and Vos 2009). This has resulted in what we have called the ‘scientification’ of risk regulation in view of the heavy reliance by the European Commission and, to a lesser extent, the other EU institutions on science and the scientific advice delivered by the European Food Safety Authority (EFSA) (Everson and Vos 2009: 1-17), revealing a tendency by regulators to perceive and/or use science as an objective and neutral source to validate their decisions. This tendency raises important questions about the role of science in decision-making, the quality of science and science-making and principles of good governance. Due to the important role ascribed to science, disputes about science-based measures do not only involve legal questions but also touch upon the science underpinning disputed measures. As a matter of fact, the authority ascribed to science by the law and decision-makers, referred to as the ‘meta-legal authority of science’ by Christian Joerges (Joerges 1997: 320), can also be identified in the case law of the EU Courts,1 which, like their counterpart courts elsewhere (Foster 2011), visibly struggle to deal with the technicalities of such cases (Foster 2011; Tai 2009). These issues are at times so complex that the question arises as to whether the EU Court, and courts in general, have the necessary legitimacy to deal with such issues (Barbier de la Serre and Sibony 2008: 941). What precisely should be the role of the Court in adjudicating these kinds of conflicts? Should the Court merely address the various stages of the decision-making process, or should it assess the quality of the scientific analysis conducted or even review the latitude afforded to policy as opposed to science?