The Behavioural Law and Economics of the Precautionary Principle in Artegodan and Its Impact on EU Internal Market Regulation
MRIC Working Paper Series No. 15
21 Pages Posted: 21 Nov 2012 Last revised: 3 Jun 2013
Date Written: March 2, 2013
From the point of internal market regulation, the Artegodan saga is one of the most interesting set of cases to study in recent times. These cases can be looked at – and have been looked at – in many different ways. Given the enormous body of literature that the Artegodan saga has sparked in the recent decades, such as numerous articles on the precautionary principle and the way how to implement science into internal market regulation, it would go far beyond the scope of this paper to provide an exhaustive overview. Departing from the context of these typical topics against which Artegodan is usually and correctly so examined, I attempt a fresh look at these cases: I will focus on the question how these cases shape the normative imperative of internal market regulation. Special emphasis will be given to the question how insights from behavioural economics have been – consciously or unconsciously – considered. In order to set the scene, I will hence first provide a short introduction to the economics of internal market regulation. Deviating from traditional literature, I will then proceed to show that the Artegodan saga indeed lies largely in line with this economic rationale of traditional internal market regulation. In the few areas where it worked for changing the traditional concept of internal market regulation, I will highlight that it nonetheless did not develop a more individualized approach in the sense as it aims at more protection of the individual. Drawing on insights from behavioural economics, I will make clear that in Artegodan the ECJ uses the precautionary principle narrative in order to instrumentalise the individual for the purposes of expanding the regulatory capacity of EU institutions. It thereby takes into account that it may in fact result in a lower level of protection of the individual for the sake of developing a centralized internal market. I will then critically review this development and argue for a more nuanced application of the precautionary principle, which takes the interdependencies between traditional integration based on fundamental freedoms and the provision of fundamental rights more seriously.
Keywords: Artegodan, Precautionary Principle, Internal Market, EU, Behavioural Law and Economics
JEL Classification: K13, K32, K33, I12
Suggested Citation: Suggested Citation