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One of the peculiarities of risk regulation is that it often requires decisions to be made in a context of uncertainty. The problem is not merely that those decisions will have to be based on the recommendations of experts who are expected to master the technical complexity of the issues. The very nature or extent of the risk will sometimes be disputed: it has taken long debates for the existence of a greenhouse effect to be accepted by experts. In other cases, the controversy will concern the kind of measures to be adopted in order to tackle a given problem. Political leaders are usually unlikely to be confronted with undisputed recommendations by the scientific community. Hence the question: how is the interface between scientists and policy makers to be structured?
The most obvious response to this question takes the form of a mandatory requirement to consult experts before a decision is made. The Treaty of Amsterdam's insertion of a provision obliging the Commission to `tak[e] account of any new development based on scientific facts' in its harmonization proposals can easily be construed as an obligation to consult scientific experts.66 Similarly, even before this provision was adopted, the European Court of Justice had declared, in a widely noticed ruling, that:
`[t]he drafting and adaptation of Community rules governing cosmetic products are founded on scientific and technical assessments which must themselves be based on the results of the latest international research (...) Since the purpose of consulting the Scientific Committee is to ensure that the measures adopted at Community level are necessary and adapted to the objective, pursued by the Cosmetics Directive, of protecting human health, consultation of the Committee must be mandatory in all cases.'67
While the innovative character of this ruling has been challenged,68 its objective is beyond dispute: it is meant to enhance the quality of Community rule-making through procedural requirements. This would initially appear to be compatible with a classic view of the division of labour between policy-makers and scientists: the former are supposed to make the best possible decisions on the basis of the evidence they have at their disposal, while the latter must assist them by giving advice. This basic distinction has influenced much of the current thinking about risk regulation at the EU level. Thus, in its recent proposal for the establishment of a Food Safety Authority, the European Commission insisted on the necessity of drawing a clear line between risk assessment (a scientific task to be carried out by the Authority) and risk management (which must remain in the hands of the Commission because it entails policy choices).69
However, the boundary between scientific arguments and political concerns is not always easy to draw in decisions entailing very complex technical assessments, particularly those involving scientific controversy. Policy-makers will sometimes come under attack simply for having followed experts' recommendations. For instance, in the Bergaderm case, the Commission was taken to Court for a decision to ban an allegedly carcinogenic substance on the basis of a scientific committee's controversial assessment.70 At other times, scientific evidence might be biased by the experts' national origins. Thus, in its report about the European Union's handling of the BSE crisis, the European Parliament's inquiry committee drew a rather bleak picture of the functioning of the Scientific Veterinary Committee. It noted inter alia that `[the] preponderance of UK scientists and officials (...) meant that the SVC tended to reflect current thinking within the British Ministry for Agriculture, Fisheries and Food.'71 Neither the efficiency nor the fairness of the policy process can therefore be guaranteed by a mere consultation mechanism. Like it or not, it is necessary to open the black box and look at the way in which scientific deliberations are organized.
The very importance of scientific assessments in contemporary public policy means that scientific deliberations cannot be left to develop in an autonomous fashion. The `benign neglect' with which this crucial phase of the policy process was considered largely stemmed from a tendency to regard science as a universal, boundary-free world that was entirely governed by the quest for the truth (in contrast to policy processes dominated by sectoral interests of various kinds).72 The reality is somewhat more complex. We have seen that scientists can be `captured' by sectoral interests. More fundamentally, science is controversial, by definition. Whereas policy-makers expect scientific assessments to provide them with clear-cut answers, we have known since Karl Popper that there is no such thing as a stable and definitive truth in scientific discussions. More often than not, policy-makers will be confronted with conflicting views and uncertainty. The quality of scientific deliberations therefore assumes an enhanced level of importance. The legitimacy of scientific assessments will ultimately depend on the way in which those deliberations are organized. How have the various `experts' been selected? What measures have been taken to ensure their independence or the pluralism of the debate? Have the different views expressed in the deliberation process been given adequate consideration?
The 1997 reform of scientific committees operating at the EU level made some important steps in that direction.73 The selection procedure has been tightened by setting up a Scientific Steering Committee that is vested, inter alia, with the power to ensure the selection of the `most suitable candidates' for all scientific committees.74 Scientific experts are to operate with absolute independence and are to declare all possible conflicts of interests.75 Rules of procedures, agendas, minutes and opinions of the Scientific Committees must be made publicly available. To avoid some of the deviations noticed in the functioning of the Standing Veterinary Committee during the BSE crisis, provision is also made for minority views to be included in the minutes.76 These are all welcome developments because they foster the transparency of the debate, thereby improving the credibility and the legitimacy of scientific assessments.
However, one might wonder whether this suffices. Given the importance assumed by scientific assessments in many decision-making processes, it might be argued that it is crucial to the quality and the fairness of those processes that adequate consideration be given to the widest possible range of views. The Court of Justice has previously ruled that `respect for the rights guaranteed by the Community legal order in administrative procedures is of (...) fundamental importance' where the Community institutions are engaged in complex technical evaluations. Among these guarantees, the Court mentioned `the duty of the competent institution to examine carefully and impartially all the relevant aspects' of the issue, and `the right of the person concerned to make his view known and to have an adequately reasoned decision.'77 This ruling applied to an individual decision and not to rule-making activities, yet the clear rationale was that the quality of experts' deliberations is of crucial importance when European institutions tend to follow experts' recommendations mechanically. `In those circumstances', the court noted, `the group of experts cannot properly carry out its task unless it is composed of persons possessing the necessary technical knowledge (...) or the members of that group are advised by experts having that knowledge.'78 Moreover, the Court made it clear that the debate had to address all relevant issues; this is why `the person concerned must be able to explain his position to the group of experts or to comment on the information before the group.'79 While some of these guarantees may be better adapted to the level of risk management than to risk assessment, they also appear to be relevant to the latter. The same ethos should lead one to conclude that scientific bodies are subject to a `duty of care' in their operations that should lead them to give adequate consideration to all of the views put forward. In any event, the Court of Justice made it very clear that the need for legal guarantees did not apply merely to the `political' level of the regulatory process, but also to preparatory stages.
66 New Article 95 (3) of the EC Treaty.
67 Case C-212/91, Angelopharm GmbH v. Freie und Hansestadt Hamburg, [1994] ECR I-171.
68 See Bradley, `Institutional Aspects of Comitology: Scenes from the Cutting Room Floor', in Joerges and Vos (eds.), supra note 7, 71-93.
69 Proposal for a Regulation of the European Parliament and of the Council laying down the general principles and requirements of food law, establishing the European Food Authority, and laying down procedures in matters of food safety, COM(00)716 of 8 November 2000., at 13-14.
70 Case T - 199/96, Bergaderm and Goupil v Commission, [1998] ECR II - 2805
71 EP Doc A4-0020/97/A, at 10.
72 The contrast is addressed in Joerges `Scientific Expertise in Social Regulation and the European Court of Justice: Legal Frameworks for Denationalized Governance Structure' in C. Joerges, K-H. Ladeur and E. Vos (eds.), Integrating Scientific Expertise into Regulatory Decision-Making (1997) 295-323.
73 Commission decision 97/404/EC of 10 June 1997 setting up a Scientific Steering Committee, OJ 1997 L 169/85 and Commission decision 97/579/EC of 23 July 1997 setting up Scientific Committees in the field of consumer health and food safety, OJ 1997 L237/18, both amended by Commission Decision 2000/443/EC of 18 May 2000, OJ 2000 L179/13.
74 Art. 3 (4 )of Decision 97/404.
75 See eg Art. 4 of Decision 97/404.
76 Art. 7 of Decision 97/404.
77 Case C-269/90, Hauptzollamt München-Mitte v. Technische Universität München, [1991] ECR I-5495.
78 Ibid. at 22.
79 Ibid. at 23.