In its evaluation cycle, the European Commission emphasises the importance of good data and the systematic involvement of a plurality of policy stakeholders, including citizens. Findings from European Union policy evaluation should inform further law-making, encourage learning and provide accountability. Transparent and inclusive formal procedures and tools are seen as essential for securing citizen participation in risk regulation; however, the Commission faces numerous challenges in securing engagement, particularly concerning the complexity of policy issues and the formal procedures for institutionalised consultations. Considering the Commission’s work from a proceduralist perspective, the article engages with Vivien Schmidt’s notion of “throughput legitimacy” to explore recent procedural innovations emerging since the Better Regulation agenda that have sought to enhance accountability, transparency, inclusiveness and openness, ensuring fairer and more balanced input on EU policy performance. The article argues in favour of greater throughput legitimacy in ex post policy evaluation but recognises challenges to the promotion of evaluation tools and their use by citizens.

Stakeholder participation is an important tenet for European Union (EU) policymaking and it can be approached from different disciplinary angles. The legal literature tends to refer to participation as a formal consultative opportunity in regulatory processes, resulting in rather homogeneous institutional arrangements for participation across policy fields and different sets of problems. Sustainability science, on the other hand, starts from the understanding of a problem in its complexity and peculiarities as a driving force determining both the rationale behind and the design of each participatory process. In this paper, we explore lessons regarding participation that could be derived from adopting an approach in which we combine insights from law and sustainability science. Along four principles, we explore potential leverage points for improving the sustainability of EU decision-making processes and their outcomes.

Climate change emergency requires rapide and determined action. The procrastination of the French state is not without consequences. One of them is that the High Administrative Court (Conseil d'Etat) found that climate risk is not taken seriously enough and is insufficiently addressed. In two decisions ruled in 2020 and 2021, the Conseil d'Etat in France had the opportunity to express itself on these issues. This is the case known as “Grande Synthe”, referring to the city that filed the petition before the High Court, in an appeal for “exces de pouvoir” –exces of power -, asking the administration to take further action in the fight against climate change. Civil society in France is indeed becoming impatient and taking legal action challenging the lack of ambition of the State in climate matters. The decision commented here will no doubt serve as a model for other similar decisions and for other European countries. It will lead to an increase of climate litigation in France and abroad.

The proposed Artificial Intelligence Act (AI Act) is the first comprehensive attempt to regulate artificial intelligence (AI) in a major jurisdiction. This article analyses Article 9, the key risk management provision in the AI Act. It gives an overview of the regulatory concept behind the norm, determines its purpose and scope of application, offers a comprehensive interpretation of the specific risk management requirements and outlines ways in which the requirements can be enforced. This article can help providers of high-risk systems to comply with the requirements set out in Article 9. In addition, it can inform revisions of the current draft of the AI Act and efforts to develop harmonised standards on AI risk management.

The goal of our paper is to demonstrate the potential effects of a tax on paying a ransom on the incentives of stakeholders involved: both the perpetrators (the attackers placing the ransomware) as well as the potential victim. We do think that there is a case for a ransom tax, but we do also realise that it is not easy to make that case, and hence we express this doubt in our title. A tax could stimulate ex ante cybersecurity and also (when price elasticity is not too low) reduce ex post ransom payments. In addition, a tax in combination with a smartly designed subsidy could have benefits.

Responding to mistrust in the European agencies’ risk assessments in politically salient cases, the European Union (EU) legislator, the European Food Safety Authority and the European Medicines Agency alike have accelerated their efforts to foster EU regulatory science transparency. These simultaneous endeavours have, however, taken place in a fragmented legislative and administrative context, with each agency operating under a different legal framework. By focusing on authorisation procedures, from registration of studies to authorisation of novel foods, pesticides and human medicines, this article examines the resulting regimes governing the disclosure of scientific data by EU agencies to identify common trends and sectoral specificities. Against the background of an overall shift towards enhanced transparency, we shed light on, first, the circulation of institutional arrangements and practices among agencies and, second, the new dimensions of transparency emerging from these developments. We also highlight the remaining sectoral differences and argue that they could have potentially large impacts on the amount and type of information disclosed and on the level of transparency perceived by stakeholders and citizens. We argue that more coherence across the sectoral transparency regimes is needed, in particular in light of the agencies’ contested legitimacy and of their increasing cooperation on cross-cutting issues like antimicrobial resistance and medicine and pesticide residues in food.

The response to the COVID-19 crisis implied an unprecedented involvement of the European Union (EU) executive in public health matters. In June 2020, the Member States agreed upon a joint EU Vaccines Strategy, whereby the European Commission was enabled to negotiate, support and allocate vaccine doses on their behalf. Entailing political and redistributive choices, the Commission’s centralised procurement presents some innovative patterns when compared to traditional EU executive action. This paper will focus on the institutionalisation of such patterns within the legal framework of the Health Emergency Preparedness and Response Authority (HERA). Did EU administrative law offer appropriate tools for this process? Or did the EU merely formalise the procedural and organisational schemes set up during the crisis? Answers to these questions will contribute to a fuller understanding of the administrative dimension of the new European Health Union and shed light on some recent evolutions of the EU administrative system.

The European Commission’s 2020 draft Chemicals Strategy for Sustainability set the ambitious goal of achieving a “Toxic-Free Environment”. Those ambitions were harshly criticised by a team based in Germany’s Federal Institute for Risk Assessment (or BfR); they claimed that toxicological risks from chemicals had already been minimised and were optimally regulated. This paper outlines evidence to support the Commission’s implication that the European Union’s chemicals regulatory regime is suboptimal. It also criticises the BfR team’s contentions by reference to empirical findings (eg concerning tumours, congenital anomalies and the toxicity of mixtures) and by disentangling their conceptual confusions.

The question of how best to tackle anthropogenic climate change is a thorny one: besides scientific uncertainty regarding the consequences of climate change, another difficulty is that the recommendations of climate experts may clash with the priorities of citizens, interest groups and political institutions. With the European Green Deal, the European Union (EU) recently made significant advances in climate policy; at the same time, and as is well known, the EU and its institutions have long been criticised for their “democratic deficit” and for their failure to involve all civil society actors equally in EU law-making processes. This article sheds light on the legal framework governing civil society participation in EU law-making, and more specifically on the Commission’s consultations pursuant to Article 11(3) of the Treaty on European Union. It then critically assesses selected features of two consultations conducted by the Commission in connection with the European Climate Law, which it evaluates from the perspective of the EU primary law principles of democracy, openness and transparency. Through this analysis, and by suggesting how future climate consultations could be further improved, the article aims to contribute to the (still nascent) legal scholarship on civil society participation in environmental and climate policy.

How can tort law contribute to a better understanding of the risk-based approach in the European Union’s (EU) Artificial Intelligence Act proposal and evolving liability regime? In a new legal area of intense development, it is pivotal to make the best use possible of existing regulation and legal knowledge. The main objective of this article is thus to investigate the relationship between traditional tort law principles, with a focus on risk assessments, and the developing legislation on artificial intelligence (AI) in the EU. The article offers a critical analysis and evaluation from a tort law perspective of the risk-based approach in the proposed AI Act and the European Parliament resolution on a civil liability regime for AI, with comparisons also to the proposal for a revised and AI-adapted product liability directive and the recently proposed directive on civil liability for AI. The discussion leads to the illumination of both challenges and possibilities in the interplay between AI, tort law and the concept of risk, displaying the large potential of tort law as a tool for handling rising AI issues.

Both the waste regulation and chemicals regulation of the European Union are based on the precautionary principle. The main objective of the chemicals regulation is to protect human health and the environment from the risk caused by hazardous chemicals. The modern waste regulation aims, among other things, at fostering the recovery of waste. These material circulation aims have been recently emphasised by introducing the ambitious circular economy objectives. Many of the waste streams contain hazardous substances that may pose risks to human health and the environment. This article examines the role of the precautionary principle in the circular economy. We argue that sustainable material circulation can only be achieved through a case-by-case application of the precautionary principle, but this also requires participatory discourse in which competing arguments, beliefs and values are openly discussed.

The global climate crisis poses many risks; for instance, relating to the environment, to the economy and to public health. The mitigation and management of such risks create a complex and multifaceted regulatory conundrum that requires quick, flexible, efficient and adaptive policy solutions that transcend the state level. A quick look in the body of regulatory instruments employed in the field of climate change policy will reveal that soft law is used very frequently by the European Commission to aid with the application, transposition and interpretation of European Union (EU) environmental legislation relating to climate change. While soft law has become ever more prominent in the EU legal order and has been studied extensively at the ex-post phase (ie concerning its effects or effectiveness), little academic attention has been paid to the process of soft law-making. In simple terms, we know very little about how soft law instruments are made. This article peeks behind the scenes of soft law and examines the transparency and participation credentials of the articulation process of Commission Guidance Documents in the field of climate change regulation adopted under key legal acts in the field.

This article examines the extent to which tort law can be used to incentivise the creation of the circular value chain and the design of products that live up to the requirements of the circular economy. In doing so, this article focuses in particular on the concepts of product liability and value chain liability. It shows that whereas the product liability framework has clearly been thought out to fit the linear value chain, central product liability concepts are also sufficiently flexible to be able to take in circularity considerations. The same goes for the concept of value chain liability. This article also shows how both types of liability become intertwined in the circular value chain.

Private safety auditors are key constituents of modern risk governance in global value chains (GVCs). However, high-impact safety incidents causing extensive harm inside and outside the chain have cast widespread doubts as to the integrity and rigour with which these commercial auditors carry out their professional services. Civil liability has been considered an important legal instrument to incentivise auditors to improve audit accuracy and integrity. Relying on English law, this article assesses the extent to which this premise holds true for product safety and social auditing. To that end, it studies the liability exposure of private safety auditors for negligent auditing in GVCs. It is argued that this exposure is primarily a function of the contractual obligations these auditors undertake to perform for producers or suppliers in GVCs. This finding draws attention to the need to better understand and define the scope of the safety audits offered for risk management purposes within GVCs.

Rome is a complex metropolis. The city faces the challenge of imagining and shaping an inclusive and sustainable future for its inhabitants. On several occasions, city policies and interventions have not met the goal of preserving environmental resources. For their part, the inhabitants of Rome tend to doubt the ability of institutions to take care of the city’s resources. We focus on civic environmental monitoring led by the local independent association A Sud, aimed at assessing the environmental status of two of the city’s rivers. From a review of applicable literature on governance, environmental and social justice and climate urbanism, we build a theoretical frame to guide our analysis. We inquire how civic monitoring in a complex city can benefit urban resource governance and foster urban transitions. We also explore the extent to which these initiatives have the potential to inform or have actually informed the scientists and policymakers responsible for designing city adaptations. Our analysis demonstrates that citizen-gathered data can enrich the scientific knowledge base and trigger claims for interventions, bringing in information on local issues often overlooked by competent institutions. The initiatives also improved individual and collective attitudes towards the city and its resources, stimulating a sense of care and a watchful citizenship.

The COVID-19 pandemic transformed our understanding of the state’s role during a public health crisis and introduced an array of unprecedented policy tools: ever-stricter travel restrictions, lockdowns and closures of whole branches of the economy. Evidence-based policymaking seems to be the gold standard of such high-stakes policy interventions. This article presents an empirical investigation into the regulatory impact assessments accompanying sixty-four executive acts (regulations) introducing anti-pandemic restrictions in Poland over the first year of the pandemic. To this end, the study utilises the so-called scorecard methodology, which is popular in regulatory impact assessment research. This methodology highlights the shallowness of these documents and the accompanying processes, with an absence not only of a sound evidence base behind specific anti-pandemic measures or estimates of their economic impacts, but even of the comparative data on restrictions introduced in other European Union/Organisation for Economic Co-operation and Development (OECD) countries. Overall, the collected data support the hypothesis that the ad hoc pandemic management process crowded out the law-making process through tools such as regulatory impact assessments and consultations. In other words, the genuine decision-making occurred elsewhere (with the exact process being largely invisible to public opinion and scholars) and drafting legal texts simply codified these decisions, with the law-making process becoming mere window-dressing.

Increasing interest from stakeholders has brought about a new emphasis on risk regulation in the oil and gas industry. Our basis for this work is the offshore oil and gas industry, which is composed of major operators, entrepreneurs and contractors working globally, but we focus on Norwegian and US activities. The fundamental strategies, institutions, legal traditions and explanations of regulation are reviewed and, together with empirical data, a novel model with the means of identifying “effective” regulation has been developed. The model presented here incorporates three dimensions: the industry’s intentions; their resources and expertise and trust in the regulator (and vice versa: the regulator’s trust in the industry); and the space where functional respective normative rules are deemed most effective.

Climate change and the pursuit of sustainability and sustainable business might be regarded as among the world’s “wicked problems”, especially as they are multi-dimensional problems. Achieving corporate accountability in this context is also difficult when corporate structures are complex as they operate globally and through supply chains. At the European level, under the Green Deal, the Sustainable Finance Initiative and the Sustainable Corporate Governance Initiative include new reporting requirements to amend and expand the scope and application of the 2014 Non-Financial Reporting Directive, alongside changes to directors’ duties to ensure they take account of stakeholders’ needs and environmental and human rights due diligence requirements. This paper will argue that these legislative and regulatory efforts are to be welcomed, but the complexity of the regulation threatens to undermine its potential impact. It may therefore be necessary to reduce some of the complexity of the regulatory arrangements. However, some complexity may increase resilience and adaptability for responding to the risks involved in the uncertainty and unpredictability of climate change and in dealing with complex corporate structures. The answer is to provide robust regulation that will prompt the corporate behaviours required to avoid the catastrophic trajectory we currently face.