The problematic application of the precautionary principle by the European Courts has led Janssen and Van Asselt to identify patterns and inconsistencies in the Courts’ use of the principle. As a consequence, the principle runs the risk of becoming an empty tool. This paper examines new case law to determine whether these patterns have continued in the rulings of the Courts and discusses what can be done to stop the degradation of the precautionary principle.

This section discusses the regulation of “lifestyle risks” a term that can apply to both substances and behaviours. Lifestyle risks take place along the line of “abstinence - consumption - abuse - addiction”. This can concern substances such as food, alcohol or drugs, as well as behaviours such as gambling or sports. The section also addresses the question of the appropriate point of equilibrium between free choice and state intervention (regulation), as well as the question of when risks can be considered to be acceptable or tolerable. In line with the interdisciplinary scope of the journal, the section aims at updating readers on both the regulatory and the scientific developments in the field. It analyses legislative initiatives and judicial decisions and at the same time it provides insight into recent empirical studies on lifestyle risks.

The article examines the field of legal automation, its advantages and drawbacks, the ways in which legal constraints and safeguards can be embedded into technology and how the law may govern human behaviour through codes, IT architectures, and design. By stressing both benefits and shortcomings of legal automation, the article does not suggest that the latter is something “neutral”. Rather, making legal reasoning and enforcement automatic, so that even a machine can process and understand this information, should be conceived as a set of constraints and affordances that transform, or reshape, the environment of people’s interaction and moreover, the interplay of human and artificial agents, thereby affecting basic pillars of the (rule of) law. The overall aim is to flesh out goals and values that are at stake with choices of technological dependence, delegation and trust, so as to determine the good mix between legal automation and public deliberation.

In recent years the concepts of ‘nudge’ and ‘libertarian paternalism’ have become popular theoretical as well as practical concepts inside as well as outside academia. But in spite of the widespread interest, confusion reigns as to what exactly is to be regarded as a nudge and how the underlying approach to behaviour change relates to libertarian paternalism. This article sets out to improve the clarity and value of the definition of nudge by reconciling it with its theoretical foundations in behavioural economics. In doing so it not only explicates the relationship between nudges and libertarian paternalism, but also clarifies how nudges relate to incentives and information, and may even be consistent with the removal of certain types of choices. In the end we are left with a revised definition of the concept of nudge that allows for consistently categorising behaviour change interventions as such and that places them relative to libertarian paternalism.

This article deals with the civil liability issues that arise when self-driving vehicles are admitted to our streets. Firstly, it is explained why strict liability regimes for the vehicle holder, which are in place in several jurisdictions across Europe, are a workable foundation for ensuring compensation of the victim. However, accidents caused by highly automated vehicles will raise the question of the manufacturer's liability for a defective product. Accordingly, this article examines the effects of the circumstance that accidents occurring with self driving cars will no longer be caused by misconduct of the human driver, but often rather by a system malfunction. Thirdly, it is argued that preferably the manufacturer should be the risk bearer and that this shift in liability towards the manufacturer will result in an adequate allocation of liability.

This section highlights the interface between international trade and investment law and municipal and international risk regulation. It is meant to cover cases and other legal developments in WTO law (SPS, TBT and TRIPS Agreements and the general exceptions in both GATT 1994 and GATS), bilateral investment treaty arbitration and other free trade agreements such as NAFTA. Pertinent developments in international standardization bodies recognized by the SPS and TBT Agreement are also covered.

The autonomy robots enjoy is understood in different ways. On the one hand, a technical understanding of autonomy is firmly anchored in the present and concerned with what can be achieved now by means of code and programming; on the other hand, a philosophical understanding of robot autonomy looks into the future and tries to anticipate how robots will evolve in the years to come. The two understandings are at odds at times, occasionally they even clash. However, not one of them is necessarily truer than the other. Each is driven by certain real-life factors; each rests on its own justification. This article discusses these two “views of robot autonomy” in depth and witnesses them at work at two of the most relevant events of robotics in recent times, namely the Darpa Robotics Challenge, which took place in California in June 2015, and the ongoing process to address lethal autonomous weapons in humanitarian Geneva, which is spurred on by a “Campaign to Stop Killer Robots”.

Causal inference lies at the heart of many legal questions. Yet in the context of complicated disease litigation, in particular, the causal inquiry is beset with difficulties due to gaps in scientific knowledge concerning the precise biological processes underlying such diseases. Civil courts across the globe, faced with increased litigation on such matters, struggle to adhere to their judicial fact-finding and decision-making role in the face of such scientific uncertainty. An important difficulty in drawing evidentially sound causal inferences is the binary format of the traditional legal test for factual causation, being the ‘but for’ test, which is based on the condicio-sine-qua-non principle. To the question ‘would the damage have occurred in the absence of the defendant's wrongful behaviour’ the ‘but for’ test requires a simple yes or no answer. This is increasingly deemed unsatisfactory in cases in which, given the state of science, true causation cannot possibly be determined with certainty.

Case C-528/13, Léger v. Ministre des Affaires sociales, de la Santé et des Droits des femmes; Établissement français du sang [2015] ECLI: EU:C:2015:288 (Fourth Chamber).

In the case of Léger commented on, the Court of Justice of the European Union dealt with a blanket ban on blood donation for men who had sexual relations with other men (MSM) in France. The Court found that such restrictions can be justified in light of specific epidemiological context and scientific knowledge available in Member States. The judgment, therefore, sheds lights on the boundaries of public health justifications, discrimination of gay and bisexual individuals, as well as the rising scope of EU sexual risk regulation. The present annotation argues that the Court has undermined the principle of non-discrimination and shows how the matter of blood donations should have been treated instead as a prerequisite of active sexual citizenship.

C-547/14 Philip Morris Brands SARL and Others v Secretary of State for Health [2016] (not yet reported)

C-477/14 Pillbox 38 (UK) Ltd v Secretary of State for Health [2016] (not yet reported)

C-358/14 Poland v. Parliament and Council [2016] (not yet reported)

Article 114 TFEU provides an adequate legal basis for the adoption of the Tobacco Products Directive 2014 in full, including measures relating to flavoured tobacco, labelling and packaging, and electronic cigarettes. These measures also comply with the principles of proportionality, subsidiarity, legal certainty, equal treatment and free competition, and the rights of companies under the EU Charter. Member States may introduce further requirements in relation to packaging of tobacco products that are not harmonised by the Directive.

Regulators can avert corporate behaviour that inflicts risks on society, but is nevertheless compliant with the law. Such regulatory interventions beyond the law evoke contentious questions about their objects, legitimacy, methods, and the norms employed. No framework yet exists to analyse these questions in conjunction. Therefore, this paper proposes a typology of the extralegal frontier. The typology is based on a range of discretionary attitudes of regulators towards their enforcement mandate. This range comprises four types of regulators, with an increasingly extensive attitude: Law Enforcer, Legislative Agent, Social Broker, and Public Architect. The typology integrates diffuse scholarly insights into a coherent framework, which offers regulators and their stakeholders a starting point for reflection on interventions beyond the law.

Case T-521/14, Kingdom of Sweden v European Commission, Judgment of the General Court (Third Chamber) of 16 December 2015, ECLI:EU:T:2015:976

Case T-521/14 is a new stop on the perilous journey towards the appropriate regulation of endocrine disrupting chemicals. The Biocidal Product Regulation required the Commission to adopt criteria defining endocrine disrupting properties by 13 December 2013; the deadline was not respected. Even though the failure to act was obvious, the Court's reasoning in T-521/14 matters greatly. It exposes a structural weakness in the EU's risk governance system by reminding the Commission that strong private opposition to regulatory action does not justify tampering with the level of environmental or health protection set by the legislator. The now adopted criteria indicate that this lesson was not taken to heart.

In April 2015, the European Commission (hereinafter, Commission) adopted a package on the authorisation of genetically modified organisms (hereinafter, GMOs) as food and feed in the EU. The package, which derives from the Political Guidelines presented to the European Parliament in July 2014 on the basis of which the current Commission was elected, consists of a Communication (titled Reviewing the decision-making process on genetically modified organisms) and a legislative draft (i.e., Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1829/2003 as regards the possibility for the Member States to restrict or prohibit the use of genetically modified food and feed on their territory, and hereinafter, the Proposal).

Case C-221/15 Criminal proceedings against Etablissements Fr. Colruyt NV [2016] ECLI:EU:C: 2016:704

Case C-19/15 Verband Sozialer Wettbewerb eV v Innova Vital GmbH (ECJ, 14 July 2016)

On 14 July 2016, the Court of Justice delivered its judgment on a request for a preliminary ruling concerning the interpretation of Article 1(2) of Regulation (EC) No 1924/2006 on nutrition and health claims made on foods. The Court ruled for the first time that the Regulation applies to nutrition and health claims made in commercial communications exclusively addressed to health professionals. This represents a major breakthrough as – in a climate of uncertainty – the established industry practice was to interpret Article 1(2) in the sense that the Regulation only applied to commercial communications addressed to final consumers. From now on, food business operators will need to take further precautionary steps to ensure that any information they communicate to health professionals either qualifies as non-commercial or complies with the Regulation. The following case note analyses the content of the judgment and its main implications (authors' summary).

Standing is a particularly controversial aspect of EU law. In the Lisbon Treaty, a third head was added to Art 263(4) with the aim of liberalising standing for private litigants. This article examines the practical effects of those reforms, by reference to three cases – Bricmate, FESI and SolarWorld – where litigants sought to challenge anti–dumping measures directly before the EU courts. It concludes that the interpretation of the third head is highly unsatisfactory, both on its own terms and in light of the purpose of the third head. The EU Courts have deliberately restricted the third head of standing, to the extent of making it sometimes more difficult to satisfy than the second head. The article fleshes out a model in keeping with the purpose and text of the Lisbon reforms, and critically assesses the argument that the relaxation of standing rules would result in an unmanageable increase in the workload of the EU courts.

On 20 July 2016, a new legal framework comes into effect for the so-called “food for specific groups”, established by Regulation (EU) No. 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control (hereinafter, FSG Regulation). The FSG Regulation repeals Directive 2009/39/EC on foodstuffs intended for particular nutritional uses (hereinafter, the PARNUTS Directive). Food intended for sportspeople placed on the market will be affected by the repeal of the PARNUTS Directive as such food has not been included in the FSG Regulation's scope and will have to comply with general EU food law from 20 July 2016. This has a major impact on compositional requirements, product names and claims made on such food. Inter alia, the possibility to make so-called “suitability statements” on food intended for sportspeople, which currently does give manufacturers some margin to make statements that some consider as something similar to claims, is likely to be controversial without the PARNUTS Directive.