Annotation of European Court of Justice, Case C-79/09, Gowan Comércio Internacional e Serviços Lda v. Ministero Della Salute (Precautionary Principle)
15 Pages Posted: 16 Jul 2011
Date Written: July 16, 2011
Gowan represents the latest and most significant judgment of the European Court of Justice dealing with the controversial precautionary principle. This judgment epitomises the EU’s current struggle in reconciling a flexible, precautionary-oriented regulatory approach with a rational, evidence-based decision-making in the emerging area of EU risk regulation. This comment focuses on three issues: the judicial review of science-based measures; the precautionary principle as a risk manager tool; and, the review ability of precautionary action. It illustrates how, by failing to counterweight the broadening of EU discretionary powers stemming from the invocation of precaution with an effective judicial scrutiny, the Court seems ready to surrender its function of gatekeeper of precautionary action. It concludes that to save the original normative choice in elevating the precautionary principle into a general principle of EU law, EU courts must ensure that reliance on this principle be accompanied by a predictable heightened scrutiny aimed at counterbalancing the broadening of discretionary powers inherent in precautionary action.
Keywords: EU law, precautionary principle, risk regulation, judicial review, pesticides, general principle, European court of justice
JEL Classification: K23, K32, K33
Suggested Citation: Suggested Citation