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Regulating Trade, Risk and Innovation - The legal perspectiv

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Marie Rosenkranz

on 19 May 2014

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Transcript of Regulating Trade, Risk and Innovation - The legal perspectiv

Definitions
Organized irresponsibility
The Precautionary Principle
Uncertainty Paradox
Main Conflicts
Image by Tom Mooring
Definitions
Regulating Trade, Risk and Innovation
- The legal perspective

The Precautionary Principle in EU Law
1) wide inclusion vs. broad interpretation
Definitions
Judges & Experts
integration of science into courtroom
Solving the Paradox
Conclusion
Outline
I. Definitions
II. The Precautionary
Principle in EU Law
III. Judges & Experts
IV. Solving the Paradox
V. Law & Politics
VI. Conclusion

2) definition vs. application

3) certainty vs. uncertainty
4) administrative constitutionalism
vs.
constitutional sovereignty
lack of a common understanding
EU Law:
lack of common understanding of the precautionary principle
PP as autonomous transplantable rule with arbitrary application

Expertise:
General guidelines need to be established for scientific studies, research and risk assessment
Introduction of legal consultancy by external experts?

Solving the Paradox:

When applying the PP
- Which circumstances trigger the application?
- When should a regulation be adopted and how?
- Who has to prove that an activity is dangerous?

Politics:
regulating uncertain risks needs several changes:
- more inclusion of actors in the decision-making (multilevel governance)
- differentiation depending on the policy field
EU enlargement as a possible window of opportunity to introduce such change

Science
&
Judiciary
epistemic approach vs. particularized solution
HOW can a judge conduct whether a measure is scientifically supported ?
SOLUTION
:
Dialectic interdisciplinary dialogue:

I. Reduce level of scientific involvement of courts
II. Operational meaning of 'minimum science'
SOLUTION
:
I. General guidelines
II. External experts

post-BSE crisis thinking
EU enlargement
inclusion
the precautionary principle
"science is not a trumpcard"
political decisions
defining relationships between science, law and politics
Law & Politics
α precautionary principle
vs.
radical precautionary principle
These two extreme versions
should be rejected!
The versions of the precautionary principle between two extremes
Four factors to be taken into account:

I. What circumstances trigger the application of the principle?

II. When can/should a regulation be adopted?

III. Who has to prove that an activity is dangerous?

IV. How should the regulation be formulated?

in many cases
uncertainty
+
risk
intermingle
!
lawyer's definition: 'situations where there are serious suspicion of
danger
, although scientific evidence is lacking'
classical approach:
risk ≠ uncertainty
science → certainty!
BUT:
limits
of science are acnkowledged → still, we are often very
optimistic
as to the certainty it can deliver
a 'way to adress uncertain risks'

In the absence of scientific consensus that the action or policy is harmful, the burden of proof that it is not harmful falls on those taking an action.’ → Implies that neither definite proof not evidence is available
• ‘a central contradiction of the risk society we live in is that the world is confronted with large-scale threats whose origin lies in the triumphs of modern society (more industry, new technologies), threats which, in view of the institutionalized state promise of security, can nevertheless neither be adequately confirmed nor attributed, nor compensated, nor (preventively) managed in accordance with prevailing legal, scientific and political principles’
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