|
|
In his recent book examining the free movement case law of the European
Court from a perspective of economic constitutionalism, Miguel Poiares Maduro
explores a fundamental dilemma. [122] On the
one hand 'discrimination or protectionist effects tests are seen as inefficient
in fighting protectionism because they allow too many protectionist measures to
escape judicial consideration'. [123] On the
other, 'a balance test', such as that represented by the European Court's
proportionality based approach, implies, 'to a great extent, making it [the
Court or other dispute settlement body] responsible for defining appropriate
regulatory policy'. [124] Not only are
courts structurally ill-equipped for this task, but this gives rise to profound
issues of legitimacy which ultimately, 'have consequences for the acceptance of
their decisions and their authority'. [125]
While it is not possible here to do justice to the richness of Maduro's
insights, nor the impressive clarity of his expression, Maduro argues
convincingly that, in the context of balancing, the search for a
'meta-national' mechanism of substantive assessment is bound to fail.
Ultimately, the task of balancing the costs and benefits associated with any
given measure will reflect the values, and institutional context, of those
endowed with authority.
Maduro's thesis in this respect is nowhere
more convincing than in the area of environmental policy. In an area which
encompasses, but transcends, physical impact what is reasonable (proportionate)
or 'rational' in terms of policy response is necessarily contingent.
[126] This reflects not merely the
uncertainty which characterizes costs and benefits in a context of unknown
(unknowable) risk, but also post-positivist conceptions of science, and
economics, as capable of constructing merely a version of the 'truth'
which, like any other, has its roots in the premises, methodologies and values
of the system within which it is articulated. To take a single example, drawn
from the first case study above. In Gourmetterie
[127] Advocate General van Gerven (unlike
the European Court) approached the Dutch ban on the marketing 'dead red grouse'
from the perspective of proportionality. He notes in this respect that:
The restriction of intra-Community trade resulting from an absolute prohibition of imports...is out of proportion, in my view, to the small contribution which such a prohibition is capable of making in concreto -- by discouraging the killing of the bird species in question in the United Kingdom -- the achievement of the objective pursued, namely the improvement of stocks of bird species which is not endangered and whose protection is not a priority under Community law. That is so particularly since the measure under consideration and the obstacle to trade resulting therefrom are intended to protect a bird and thus, contrary to the principle of mutual confidence between States, to take effect on the territory of another Member State; moreover, the measure was adopted on the basis of a unilateral appraisal of the interests involved, that is so say without taking into account of interests which may warrant or justify the hunting of that species.
The Advocate General is clearly conscious here that application of the
proportionality principle is a matter of judgment. In his view, having regard
to the physical objective which he perceives as underlying the national
measure, the import prohibition is not proportionate.
[128] The objective of the measure at hand
may, however, be viewed in terms which are not physical. The Dutch interest in
the ban may lie not merely in its concern to promote a decline in the hunting
of the bird species in question in the United Kingdom, but also in the value
which that society attaches to knowing that it is not participating, through
trade, in practices which it considers to be wrong. The ban may reflect ethical
concerns and seek to protect the moral autonomy of this society. In this sense,
it might be considered comparable to a ban on the importation of pornographic
or racist literature introduced, not on the basis of evidence of a resulting
rise in racism or abuse of women or children, but on the basis quite simply
that it is wrong. As in a context of scientific uncertainty, concepts of
proportionality or rationality emerge as striking in their subjectivity when
they confront the moral, rather than physical, spillovers associated with
international trade. It is no doubt for this reason that the European Court has
accorded Member States such a broad margin of discretion when confronted with
cases concerning the protection of public morality.
[129]
This, however, is not the
only reason for citing Advocate General van Gerven above. Among the reasons
which he provides for his skepticism regarding the legitimacy of the Dutch ban
is the fact that the measure was adopted without taking into account the
interests of the United Kingdom in hunting red grouse. In this sense the
Advocate General is concerned with what Maduro calls 'national bias' in
policy-making in Member States. By this Maduro is referring to the
'over-representation of national interests' at the expense of 'out-of-state
interests'; decisions of Member States that affect the free movement of goods
can thus be seen as affecting interests not normally represented in the
national political process'. [130] This
leads Maduro in a particular direction. He proposes a procedural rather than a
substantive role for the European Court in its assessment of the legitimacy of
national regulatory measures under Articles 28-30 (formerly 30-36). '[T]he
Court of Justice should not second-guess national regulatory choices, but
should instead ensure that there is no under-representation of the interests of
nationals of other Member States in the national political process'.
[131] It is thus the quality of the
political process, in terms of interest representation and participation, which
is viewed as providing the basis for the evaluation of national measures,
rather than the substantive merits of the decision from the perspective of the
actor enjoying the power of review.
Maduro's recent contribution in
this respect does not stand alone. It is indicative of a widespread procedural
turn in European Community law; an approach which approaches legitimacy through
the lens of process rather than outcome and insists not only upon an expanded
participatory basis in (national and Community) decision-making, but also upon
'civic' deliberation as the hall-mark of the political. This is alluded to by
Christian Joerges, in the context of the European Court's review of the
hormones regime, when he notes:
...the disregard of scientific evidence that the Commission had been prepared to bring to bear can hardly be heralded as a triumph of legitimate political authority over the neglect of public anxieties by insulated technocrats. The institutional mechanism actually endorsed by the Court was the bargaining process within the Council. Intergovernmental bargaining should not be equated with deliberative political processes on the social acceptability of technological developments. [132]
It is interesting to observe that in both the shrimp and hormones
'cases', the relevant panels, in different ways, looked to process as a tool
for assessing the legitimacy of national measures. In the former, the panel
emphasized the failure of the United States to engage seriously in
international negotiations prior to the introduction of the standards in
question. Indeed, the conclusions of the panel are such to suggest that this
may have been a crucial factor in leading it to condemn the regime in question.
In the latter, Article 5.1, concerning risk assessment, was conceived as
implying a minimum procedural (as well as a substantive) obligation. As noted
above, the AB reversed the findings of the panels in this respect in the
hormones case, [133] while clearly
strengthening this procedural turn in its more recent shrimp decision. In the
later, as noted above, emphasis was placed not merely upon the duty to
negotiate, but also upon the procedural mechanisms underpinning the
certification process. The right to be heard, to appeal or seek review of a
certification decision, and to receive reasoned notification of outcome, were
cited as factors condemning the United States measures in question, under the
'chapeau' to GATT, Article XX. Here perhaps we have, in the broadest terms, the
seeds of a process based approach upon which both the Community, and the WTO,
should be encouraged to build. [134] Were
they to do so, they might, in the famous words of John Hart Ely, come to play a
role which is 'representation-reinforcing'; [135] nourishing rather than thwarting the democratic
process.
[122] Supra n. 56.
[123] Ibid, p. 53.
[124] Ibid, p. 59.
[125] Ibid.
[126] It is important to observe that the
'rationality' test of the AB in the hormones case is, as it was expressed
there, less intrusive in terms of national policy than a fully fledged
proportionality test as applied by the European Court, especially in its review
of national measures. In practice, of course, the European Court's test ranges
from the strict to a more hands-off 'not manifestly disproportionate standard'.
The Danish Bottles (Case 302/86 Commission v. Denmark
[1988] ECR 4607) case provides a good example of what I mean by a fully fledged
proportionality test, as does the definition of Advocate General van Gerven in
the dead red grouse case, supra n. 21). In the context of the SPS Agreement,
once the minimum threshold (more than a merely theoretical risk) has been
reached the AB said nothing to imply that it would go further in balancing the
costs and benefits of the measure in question (subject of course to the least
restrictive means test). Nonetheless recourse to the language of rationality or
reasonable, upon which the AB report is predicated, clearly lends itself to the
application of a proportionality style test. It remains to be seen whether, in
the future, in the context of an established risk, the AB will develop the
concept of a rational relationship in this way.
[127] Supra n. 21, para.
[128] The limited physical impact of the
measure reflects its extra-territorial nature. The ban may have no impact
whatsoever. Grouse may continue to be hunted in the United Kingdom on the same
scale. It may be necessary for new markets to be found, whether at home or
abroad, but the link between the measure and its physical objective is tenuous.
In this, the Advocate General echoes the approach of the GATT panel in the
second of the Tuna/Dolphin reports. Here the measures were condemned on the
basis that they were contingent in their effect upon their occasioning a change
of policy on the part of the exporting state.
[129] See, for example, Case 34/79 R
v. Henn & Derby [1979] ECR 3795.
[130] Supra n. 56, pp. 169-175.
[131] Supra n. 116, p. 173
[132] Supra n. 115 p. 310. See also Everson,
M., 'Administering Europe' 36 JCMS 195, pp.209-211; Cohen & Sabel,
'Directly-Deliberative Democracy' 3 (1997) ELJ 313; Joerges & Neyer, 'From
Intergovernmental Bargaining to Deliberative Political Processes: The
Constitutionalization of Comitology' 3 (1997) ELJ 273; Scott, J., 'Law,
Legitimacy and EC Governance: Prospects for Partnership' 36 JCMS 155. See also,
in a US context, writings on 'civic republicanism', for example, the
contributions of Sunstein, Michaelman etc. in 97 (1988) Yale LJ.
[133] It is interesting to note that the AB
appears to adopt a different approach to the language of 'based on' in Article
3.1 (concerning international standards etc.) and Article 5.1. Whereas in the
case of the former it is taken to mean 'build upon' rather than 'conform to',
it is taken to imply a rather stricter standard of conformity in the latter. It
should be observed that this paper is not arguing that scientific evidence is
irrelevant in decision-making, merely that it is one perspective which should
be required to feed into the policy process, but only one of many. According to
the process based approach espoused here, it would be for courts to police the
adequacy of representation of, and engagement with, the scientific viewpoint.
[134] The above discussion of the
shrimp case did not allude to one further important difference in approach
between the panel and the AB. Significantly, the AB reversed the panel's
finding that accepting non-requested information from non-governmental sources
is incompatible with the provisions of the Dispute Settlement Understanding.
The AB held that panels established not only have a right to seek information
from any individual or body or from any relevant source (under Articles 11 and
13 of the DSU) but also 'discretionary authority either to accept and consider
or to reject information advice submitted to it, whether requested by a
panel or not whether requested by a panel or not'. In this particular case
the contested information concerned unrequested briefs submitted by three
environmental non-governmental organizations. The AB held that the panel had
acted within the scope of its authority in allowing the parties to the dispute
to attach such briefs to their own submissions, should they see fit to do so.
Nonetheless, the principle established is such as to have the potential to open
up the WTO dispute settlement regime to interests which might otherwise not
find representation or voice within the official submissions of Members.
[135] Democracy and Distrust: A
Theory of Judicial Review (Harvard UP, 1980).