Risk, Precaution and Scientific Complexity before the Court of Justice of the European Union

Scientific Engagement of International Courts and Tribunals in Environmental Disputes

“…140. 778 For a critical and in-depth assessment on the content and reach of the concept of sustainable development, see: GYULA BÁNDI, A FENNTARTHATÓSÁG ÉRTELMEZÉSÉNEK EGYES JOGI SZEMPONTJAI (MTA DOKTORI ÉRTEKEZÉS) (2013); on the difficulties of delineating the legal content of the concept see: Gyula Bándi, A fenntartható fejlődés jogáról, 1 PRO FUTURO 11-28, 20-23 (2013). 779 Pulp Mills case, Judgment, para.…”

“…However, since the beginning of 2000s, EU Courts started to develop a more thorough approach to reviewing the validity of scientific arguments. 1117 Technische Universität München 1118 is often referred to as the turning point in the case-law, 1119 when the referring national court has invited the ECJ to depart from its deferential approach. Although Advocate General Jacobs suggested that the contested decision could not survive even a limited review, 1120 the Court has broadened the scope of its assessment and did not refrain from scrutinizing the composition of the expert body that made the scientific evaluation underlying the contested decision.…”

“…According to the test of judicial review, the CFI scrutinized whether the expert opinion relied on by MS was "consistent". 2013 Shortly after in Artegodan, the CFI clarified that its consistency review encompasses a scrutiny as to whether the risk assessor's reasoning "establishe [d] a comprehensible link between the … scientific findings and its conclusions." 2014 In 2008, the report of the WTO AB followed suit in the Continued Suspension of Obligations case, in which it applied the 'coherence of reasoning' test.…”

“…v UK and Brincat ad Others v Malta. For a more detailed assessment of some of these cases see: Sandor Szemesi, "Questions of Environmental Protection in the Practice of the European Court of Human Rights Part III: Developments in International Law," Hungarian Yearbook of International Law and European Law 2013(2013): 252-53. 8 was applied, among others, to toxic industrial air pollution, 852 risks entailed by gold mines using cyanide leaching technology, 853 heavy metal pollution of drinking water, 854 groundwater contamination, 855 destruction of a swamp area near the applicant's home, 856 excessive noise of night clubs 857 and public transportation, 858 as well as severe vibration caused by heavy traffic.859 In the context of such dangerous activities, there is a significant overlap between the scope of obligations arising under Article 2 and Article 8.…”