Judicial and Administrative Review of Scientific Uncertainty: Complementarity or Duplication?

Legal acts adopted by EU institutions and bodies are increasingly underpinned by intricate and uncertain empirical assessments. They also embody interpretations of complex legal frameworks replete with abstruse scientific or technical notions requiring expert knowledge. The EU co-legislator’s response is a proliferation of formally administrative boards of appeals in EU agencies vested with decision-making powers. These boards are supposed to combine legal and scientific or technical expertise, such as with regard to the risk regulation of chemicals or the supervision of financial institutions. Previous research has demonstrated that these bodies can be equipped with relatively strong safeguards of decision-making independence as well as they may replicate the techniques and procedural practices of judicial review. In this context, the question arises then as to how the EU Courts should approach the second-order judicial review of the administrative review by the boards of appeals. Based on the existing case-law of the EU Courts and boards of appeal, this paper examines the pros and cons represented by three models of the judicial review of scientific uncertainty: (1) the non-review and deference to expert EU bodies’ empirical discretion, even if no prior specialised administrative review exists; (2) the limited second-order judicial review of specialised administrative review; (3) the complete judicial review, even if prior administrative review has been put in place. The paper argues that the model of limited second-order judicial review of specialised administrative review would provide the most efficient allocation of limited resources and would guarantee an optimal interplay of assets legitimising EU legal acts based on uncertain science.