Procedural versus Substantive Approaches to Scientific Evidence in the Opinions of Advocates-General

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Molitorisová, Alexandra ; Burke, Ciarán:
Procedural versus Substantive Approaches to Scientific Evidence in the Opinions of Advocates-General.
In: Varela, Justo Corti ; Farah, Paolo Davide (Hrsg.): Science, Technology, Policy and International Law. - London : Routledge , 2024 . - S. 193-230
ISBN 978-1-003-47242-1

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Abstract

This chapter examines the assistance offered by advocates general (AGs) to the European Court of Justice in the context of assessments of scientific evidence. The chapter analyzes two approaches to examining scientific evidence adopted by AGs, namely, substantive and procedural. The substantive approach involves scrutinizing scientific evidence, with an AG drawing inferences, for example, by interpreting the scientific evidence available. The procedural approach entails assessing the quality of production of scientific evidence, that is, whether the mechanisms employed in the scientific evidence production lead to sound scientific evidence. The chapter first inquires in which contexts the two approaches are used. The chapter then aims to understand the impact of AGs’ work with evidence on the Court’s output. It asks whether substantive or procedural approaches may facilitate the Court’s own assessment of scientific evidence. It observes that substantial engagement with evidence may be accompanied by epistemic concerns. The opinions of AGs may demonstrate to the Court where such problems exist. On the other hand, procedural engagement with evidence may lead to overreliance upon the evidence adduced by parties to cases. The AGs and the Court may enhance each other’s understanding of factors behind evaluations of scientific evidence and share a gate-keeping role as regards its admissibility and assessment.