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Regulating Trade, Risk and Innovation - The legal perspectiv
Transcript of Regulating Trade, Risk and Innovation - The legal perspectiv
The Precautionary Principle
Image by Tom Mooring
Regulating Trade, Risk and Innovation
- The legal perspective
The Precautionary Principle in EU Law
1) wide inclusion vs. broad interpretation
Judges & Experts
integration of science into courtroom
Solving the Paradox
II. The Precautionary
Principle in EU Law
III. Judges & Experts
IV. Solving the Paradox
V. Law & Politics
2) definition vs. application
3) certainty vs. uncertainty
4) administrative constitutionalism
lack of a common understanding
lack of common understanding of the precautionary principle
PP as autonomous transplantable rule with arbitrary application
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?
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
epistemic approach vs. particularized solution
HOW can a judge conduct whether a measure is scientifically supported ?
Dialectic interdisciplinary dialogue:
I. Reduce level of scientific involvement of courts
II. Operational meaning of 'minimum science'
I. General guidelines
II. External experts
post-BSE crisis thinking
the precautionary principle
"science is not a trumpcard"
defining relationships between science, law and politics
Law & Politics
α precautionary principle
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
lawyer's definition: 'situations where there are serious suspicion of
, although scientific evidence is lacking'
risk ≠ uncertainty
science → certainty!
of science are acnkowledged → still, we are often very
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’