The CJEU and the epistemic power of corporate actors in EU risk regulation. Promoting expert accountability or aggravating epistemic capture?

Corporate actors play an important role in assembling the science underpinning EU risk regulation. They provide the initial information on which decisions are based, comment throughout the decision-making process, and litigate against decisions, which in their view have not duly considered the information and comments thus provided. While there are good reasons to involve private actors in regulation, concerns over undue influence on and epistemic capture of EU regulatory science by the regulated industry are growing. Corporate actors exert epistemic power in both the administrative and the adjudicative phase of the regulatory cycle. Debates about regulatory capture, however, have tended to neglect the role of judicial review in either addressing or entrenching corporate actors’ epistemic power. Neither have debates on the role of the Court of Justice of the European Union (CJEU) in risk regulation directly engaged with the issue of capture. This is problematic, as the CJEU’s modern approach to risk regulation, entailing intensified judicial scrutiny over EU technical discretion, has developed in response to litigation brought and framed almost exclusively by the regulated industry. In this paper we address this gap and examine the extent to which judicial review of risk regulation by the CJEU has addressed concerns over epistemic capture, when holding regulatory science to account for the epistemic quality of its advice. We combine doctrinal research over a decade of CJEU case-law with insights on expert accountability from political philosophy and comparative institutional analysis and juxtapose it with empirical studies on lobbying and interest group politics. We shed light on the ways in which the CJEU’s doctrinal approach has shaped the role of corporate actors as information providers, as well as the impact of this approach on their epistemic power in EU risk regulation.