Scientific Uncertainty before the Court of Justice and the General Court: Is the Judicial Toolbox Sufficient?

The uncertainty of empirical assertions is a pervasive problem in litigation before the EU Court of Justice (ECJ) and the General Court (EGC). It is particularly pressing in environmental law cases. At present, ‘science’ cannot be plausibly conceived of as a social practice generative of absolute and unchallengeable assertions but, rather, as a never-ending process of verification that leads to a deeper understanding of the studied phenomena that no point claims absolute truth. How does the inherent contestability of scientific assertions affect the role of courts and the process of adjudication? Fuller saw the legitimacy of this dispute-settlement mechanism as stemming from the equal and pro-active participation of the opposing parties in adversarial proceedings which facilitate the impartial adjudicator’s ‘getting to the truth’. Nowadays, not only must the courts ensure that the administration has taken into account all relevant scientific factors and police the boundaries of methodology, but they must also substantively engage with the rationality of scientific arguments, thereby exercising their own discretion. As demonstrated by Sulyok, however, engaging with the intrinsically probabilistic nature of empirical claims constitutes a particular hardship for non-expert adjudicators on international courts, which may disrupt the social acceptability of judicial decisions in the long run. Put bluntly, ‘scientifically poorly reasoned judgments may easily prove unconvincing’.