EU Risk Regulation and the Contested Legitimacy of the EU Public Administration

This paper analyzes the problems of contemporary EU risk regulation (i.e. regulation of environmental and public health risks) by adopting the analytical lens of EU administrative legitimacy. It argues that key to understanding the paradoxes and (legal and political) contestation of EU risk regulation is to recognize the administrative nature of this process – an aspect, which is often overlooked in the current EU discussion on risk regulation. The paper builds on the concept of administrative constitutionalism (Fisher 2007), applying it to the context of EU administrative governance of risk. The fundamental and yet unresolved question behind that concept in the EU context concerns the degree of autonomy granted to the EU public administration vis-à-vis the other two branches of public power, especially the courts. In EU risk regulation the central question is where the legitimate locus of authority should lie when it comes to filling in the discretion left open by EU legislative provisions on health, safety and environmental protection. Crucially, understandings of administrative legitimacy strongly influence the way that the legitimate role of regulatory experts and evidence is being defined in the legitimation of administrative discretion. By analyzing EU case law in the fields of GMOs and chemicals the paper will examine what conception of administrative legitimacy emerges from this case law, and how EU courts have defined administrative legitimacy including the role of experts in EU administrative decision-making.