1. Full citation. Alemanno, Alberto. "The Gowan Judgment: Celebrating the EU Risk Regulation Paradigm for Decision-making." Alberto Alemanno. Alberto Alemanno, 28 Dec. 2010. Web. 18 Apr. 2013. <http://albertoalemanno.eu/articles/43875>.
2. Where did/does the author work, what else has s/he written about, and what are her/his credentials?
Alberto Alemanno is Associate Professor of Law at at HEC Paris, where he holds a Jean Monnet Chair in EU Law & Risk Regulation. He teaches EU Law, International Economic Law, EU Affairs and Global Risk Regulation at both undergraduate and master level (MBA) as well as in executive education programmes all over the world. He is also Adjunct Professor of Law at Georgetown University Law Center, where he teaches Global Risk Regulation and guest lecturer at the Harvard School of Public Health. During the last few years, Alemanno’s research has been centered on the role of science and expertise within the emerging law and policy of risk regulation in both the EU and the WTO legal orders. In particular, he is interested in the relationship between the regulatory competence of states in furtherance of domestic policies of general interest and concern, such as public health and food safety, and the preservation of a liberal international trade framework.
3. What are the topics of the text?
I looked up the 2010 Gowan case mentioned in the book with regards to EU's discretionary risk regulation. Gowan, a Portuguese company that triggered the authorization procedure for fenarimol, sought the annulment of two Italian decrees complying with Directive 2006/134 before Tribunale Amministrativo del Lazio (TAR). Gowan pleaded the illegality of this Directive that was trying to keep the substance off the markets.
4. What is the main argument of the text?
According to the precautionary principle, nations are justified adopting protective regulatory measures in situations of scientific uncertainty. However, the principle’s detractors argue that it offers limited guidance to policymakers and worryingly expands regulatory discretion, thereby risking illegitimate dominance of the state over its citizens.
5. Describe at least three ways that the argument is supported.
Although the draft assessment report prepared by the rapporteur Member State (the UK) favoured the authorization of fenarimol under the plant protection products directive, the concerns of several Member States (gathered in the ‘legislative’ working group of the Standing Committee on the Food Chain and Animal Health) regarding the question of endocrine disruptor led the Commission to authorize only a limited number of uses for this substance and just for a period of 18 months (instead of the regular 10 years) in Directive 2006/134.
Yet under settled case law, precautionary action is allowed only if the uncertain risk is more than “purely hypothetical.” Any precautionary measures must also be applied in a non-discriminatory fashion, be consistent with measures already taken, and be based on a benefit-cost evaluation and a complete risk assessment.
To prevent arbitrary decision making disguised under precautionary clothes in the future, EU courts should not hesitate to assert control over the techno-scientific process preceding the adoption of risk decisions as well as scrutinize the relationship between that process and the final risk management decisions supposedly based on that process. This control is imperative not only for the credibility of the precautionary principle, but also for the legitimacy of the EU’s risk decision-making as a general principle of EU law.
6. What three quotes capture the message of the text?
According to the Court, although the Commission is required to take into account the scientific assessment prepared by the rapporteur, “that assessment is not binding on the Commission or the Council…who remain entitled…to adopt different risk management measures from those proposed by the rapporteur Member States”.
Since none of the evaluation requirements foreseen in this directive contain specific criteria for the assessment of the effects of an active substance on the endocrine system and these effects are covered by the general 'harmful effects on human' criterion, no breach of the principle of legal certainty can be found.
In essence, the case submitted was that the severe restrictions on the use of this substance were not justified by the scientific studies carried out in the course of the assessment procedure foreseen by the plant protection products directive.Since none of the evaluation requirements foreseen in this directive contain specific criteria for the assessment of the effects of an active substance on the endocrine system and these effects are covered by the general 'harmful effects on human' criterion, no breach of the principle of legal certainty can be found.
7. What three questions about environmental risk and precaution does this article leave you with?
What is the proportionality principle in relation to the precautionary principle?
In what cases has the precautionary principle been explicitly abused as a way to gain political favor or any similar cause?
How are policies and rules supposed to be protecting the public when regulations can be passed and withdrawn based on technicalities?
Alemanno, Alberto. "The Gowan Judgment: Celebrating the EU Risk Regulation Paradigm for Decision-making." Alberto Alemanno. Alberto Alemanno, 28 Dec. 2010. Web. 18 Apr. 2013. <http://albertoalemanno.eu/articles/43875>.
2. Where did/does the author work, what else has s/he written about, and what are her/his credentials?
Alberto Alemanno is Associate Professor of Law at at HEC Paris, where he holds a Jean Monnet Chair in EU Law & Risk Regulation. He teaches EU Law, International Economic Law, EU Affairs and Global Risk Regulation at both undergraduate and master level (MBA) as well as in executive education programmes all over the world. He is also Adjunct Professor of Law at Georgetown University Law Center, where he teaches Global Risk Regulation and guest lecturer at the Harvard School of Public Health. During the last few years, Alemanno’s research has been centered on the role of science and expertise within the emerging law and policy of risk regulation in both the EU and the WTO legal orders. In particular, he is interested in the relationship between the regulatory competence of states in furtherance of domestic policies of general interest and concern, such as public health and food safety, and the preservation of a liberal international trade framework.
3. What are the topics of the text?
I looked up the 2010 Gowan case mentioned in the book with regards to EU's discretionary risk regulation. Gowan, a Portuguese company that triggered the authorization procedure for fenarimol, sought the annulment of two Italian decrees complying with Directive 2006/134 before Tribunale Amministrativo del Lazio (TAR). Gowan pleaded the illegality of this Directive that was trying to keep the substance off the markets.
4. What is the main argument of the text?
According to the precautionary principle, nations are justified adopting protective regulatory measures in situations of scientific uncertainty. However, the principle’s detractors argue that it offers limited guidance to policymakers and worryingly expands regulatory discretion, thereby risking illegitimate dominance of the state over its citizens.
5. Describe at least three ways that the argument is supported.
6. What three quotes capture the message of the text?
7. What three questions about environmental risk and precaution does this article leave you with?