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Risk assessment in technical legislation: what are the limits to the Commission's discretion under comitology?

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By its judgment of 1 April 2008, the European Court of Justice annuls Commission Decision 2005/717/EC exempting deca BDE from the use restriction under the ROHS Directive 2002/95/EC. The Court states that by not complying with the formal conditions of Article 5 (1) (b) of the Directive, the Commission exceeded its implementing powers. As the Court finds that the Commission failed to respect these formal conditions, it does not need to address the pleas of the applicants relating to more fundamental questions regarding risk assessment and risk management under comitology. The authors put this judgment in the broader context of risk regulation on both sides of the Atlantic, and close with an outlook on risk regulation under the new comitology rules introducing regulatory procedure with scrutiny.


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