Acknowledging the centrality of the precautionary principle in judicial review of EU risk regulation: why it matters

The precautionary principle lies at the heart of the institutional architecture of EU risk regulation; EU institutions are fully entitled to take the precautionary principle and its overarching tenets into due consideration when enacting risk management measures. This article analyses judicial review of EU risk regulation, focusing on cases where EU acts have been challenged for being too restrictive. It enquires to what extent the CJEU’s application of different standards may safeguard precautionary measures and do justice to the key role of the precautionary principle. It identifies two problematic aspects in the case law: the increasing focus on (mere) administrative discretion and application of the “all relevant factors” test in direct actions for annulment, and the analysis of the precautionary principle under the umbrella of proportionality review in preliminary rulings. Against the background of this analysis, the article puts forward two arguments and advocates a clearer and fuller acknowledgment of the role of the precautionary principle in the Court’s case law.