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The Constitutional Place of Expertise

Periodic Reporting for period 1 - CONPLEX (The Constitutional Place of Expertise)

Reporting period: 2018-09-01 to 2020-08-31

The research contributed to the development of a constitutionally informed theory of expertise within the EU. It addressed the question of how technical and democratic legitimacy can be reconciled in a supranational polity.
The democratic legitimacy of expert-based decisions is a recurring problem in EU regulatory decision-making. In the field of health and environmental risk regulation, expert-based decisions have repeatedly been the target of public contestation. In such cases, technical complexity risks resulting in an apparent neutralisation of political conflicts into merely technical assessments. At the same time, expertise plays a key role, as the COVID-19 pandemic has once again demonstrated. It is therefore essential to ensure that expert input into decision-making processes is aligned with the EU’s commitment to democratic government.
The project addressed these tensions from a constitutional standpoint. It started from the hypothesis that constitutional principles (e.g. transparency, participation, and rational administrative decision-making) can generate dialectic processes between courts and decision-makers. In order to assess whether such potential is realised, it undertook a systematic investigation of how European Courts frame such principles when reviewing expert-based decisions. It then examined institutional practice, in order to assess how decision-makers respond to judicial activity. Its overall objective was to establish whether detecting links and influences between judicial and institutional activity could pave the way for a more democratically sound involvement of experts in regulatory decision-making processes. The research focussed on judicial review of health and environmental protection measures based on European agencies’ opinions (EMA, EFSA, ECHA). Findings suggest that such dialectic processes struggle to emerge. While Courts are active in tailoring the relevant principles to the peculiarities of technically complex measures, they do not seem to develop their legitimacy-enhancing potential. Agencies practices, while being oriented at implementing the relevant principles, seem to have limited links with the Court’s case law.
The analysis focussed on judicial review of agency science (2010-2019). It confirmed a shift in the standard of review from a deferential to a more pro-active approach. This doesn’t however seem to be informed by a democracy-enhancing application of the relevant principles (with the exception of the case law on access to documents). Research activities have subsequently examined the relevant agencies’ responses to the case-law, focussing on their implementation of transparency policies. While significant developments have been taking place over the last two decades, their link to the case law is tenuous. This finding was confirmed by interviews with the agencies’ legal officers.
As the research findings did not allow to fully substantiate the hypothesis, the research question has been adjusted. In particular, research activities focussed on identifying the causes of the “missed dialogue” between Courts and agencies and to imagine different channels through which the relevant principles could be operationalised according to a democracy-enhancing logic. This adjustment, combined with the outbreak of the COVID-19 pandemic, has resulted in some delays in the implementation of the research action, in particular as to the analysis of economic expertise. Several lines of research have nonetheless been pursued: a study on whether similar dynamics are taking place in the judicial review of complex economic assessments in EU competition law; a study on the genesis of economic indicators in the EU and of their role vis-à-vis political discretion; a study on the role of economic expertise in the European and Monetary Union from a separation of powers perspective.

The research results can be summarised as follows:
1) Courts’ role in realising principles’ potential as democratic legitimacy catalysts with regard to expert-based decision-making is limited. The European Ombudsman could represent a valuable alternative institutional avenue.
2) Several factors contribute to the Courts’ limited engagement with the democracy-enhancing potential of the relevant principles, i.e. the regulatory context; standing requirements; the Courts’ understanding of the purpose of their review.
3) The dialectic interaction between Courts and agencies struggles to emerge: while changes implementing the relevant principles have been taking place in agencies practices, it is hard to link them in a convincing way to the Courts’ case law, not least because the cases in which Courts rule against agencies are limited.

Research findings resulted in the 4 single-authored, peer-reviewed publications. Two book chapters, concerning the accountability of EU pesticides governance and trust in regulatory expertise, have been submitted for publication in edited volumes. A significant part of the forthcoming research output results from collaborative research activities. Research results have been disseminated through the papers presentation at national and international conferences and workshops. In order to disseminate the research findings and to strengthen her network, the researcher organised two conferences, one online seminar, and one online paper presentation. Dissemination of the research results to a broader audience suffered significantly from the outbreak of the COVID-19 pandemic. Mitigation measures have been implemented: some of the activities were postponed, some moved online. The broader public was reached through the project website and twitter account. Furthermore, a dialogue with stakeholders took place in the context of the European Risk Forum in Brussels.

In terms of exploitation of the research results, the action opened new research collaborations, networking and career opportunities. The collaborative research undertaken has opened a new research agenda, exploring the conceptual and empirical dimension of experts’ involvement in EU decision-making. I have been involved in new collaborative research projects with the host institution. Dissemination activities widened my research network and led to new editorial collaborations. In terms of career opportunities, I secured an Emile Noël Fellowship at NYU Law School, where I will continue my research.
Notwithstanding the setbacks discussed above, the research findings advance the state of the art from both an empirical and a conceptual point of view. Empirically, they provide a comprehensive and up-to-date picture of Courts’ approach to the review of agency science, which was missing in the literature. Conceptually, they add to the literature on Courts and risk regulation and courts in new governance by offering a well-grounded and contextualised assessment of court’s approach, going beyond classic critiques based on separation of powers considerations. It pushed forward the knowledge frontier by highlighting the limited impact of the case-law on agency’s practices and identified alternative avenues for the operationalisation of the relevant principles in a democracy-enhancing fashion. Research findings will assist judges and decision makers in the development of – respectively – standards of review and institutional practices capable of addressing the legitimacy concerns raised by the involvement of experts in EU regulatory decision-making.