Private Party Standing and EU Risk Regulation

Standing determines a person’s ability to obtain judicial review of a legal act by the government. Judicial review of EU measures, including risk regulatory measures, is an important device to ensure that the rule of law is respected. Even after the changes brought about by the Lisbon Treaty, private parties still have limited standing rights under EU law to challenge EU risk regulations.While they are able to challenge “decisions” addressed to them (or, in some cases, addressed to others), they generally have been unable to claim standing at the European courts to seek reviewof generally binding rules. These restricted standing rights for private parties have been the subject of debate and criticism, both before and after the changes brought about by the Lisbon Treaty.

This article discusses the EU law standing requirements for private parties, the rationale and justification for the current restrictive conditions, and the effects of expanded standing for private parties on the legality, quality and effectiveness of EU risk regulation. Thus, the focus is not on the formal legitimacy, but on the functional characteristics of judicial review. Of course, standing extends beyond risk regulation, and, the current restricted standing rights and any future expanded standing rights apply more broadly to any generally binding EU rules. There would appear to be no reason to limit an expansion of standing rights to risk regulation. Nevertheless, risk regulation may be different from other areas of regulation in that it relies heavily on science, involves a relatively high number of precautionary measures, and may be seriously politicized. As a result, the need for court review in the area of risk regulation may be greater, because the risk of unlawful decisions driven by politicized, precautionary science and activist policy-makers is greater. It is not the purpose of this paper, however, to explain exactly how the issues are different for risk regulation, as opposed to other areas. Rather, I assume that enhanced standing is particularly important for risk regulatory measures, based on the theoretical argument set out above. Even if one rejects this assumption, however, it is still beyond doubt that standing rights are also highly relevant to risk regulation.

Copyright: © Lexxion Verlagsgesellschaft mbH
Source: Issue 03/2016 (September 2016)
Pages: 12
Price: € 41,65
Autor: Prof. Dr. Lucas Bergkamp

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