Chapter 7 turns to the question of diversity from a health perspective, with a focus on scientific uncertainty and regulatory experimentation. This is about the effectiveness of EU intervention, the ability of the EU, as a functionally driven risk regulator, to select the best health intervention, in terms of reduced mortality and morbidity. It investigates how the principle of precaution is used by the Court to grant a certain leeway to the national and the EU legislature. Notably, the principle is applied not only to uncertainty about the existence of health risks, but also to uncertainty about the effects of policy interventions. The chapter then examines two legal devices designed to preserve the regulatory autonomy of Member States: subsidiarity and minimum harmonisation. Through three case studies – tobacco plain packaging, the ban on tobacco for oral use and front-of-pack nutrition labelling – the chapter highlights the contradiction between the need for regulatory diversity and the need for market uniformity, and the resultant tensions with the principles of conferral and subsidiarity.

The introduction of co-management is often associated with recognition and allocation of property rights. This chapter therefore provides definitions of the concepts of property, property rights and property regimes. Systems informed by economic theory to provide ‘user rights’ are reviewed in relation to collaborative governance, including Transferable Quota systems and Territorial User Rights for Fishing. Given that rights may be contested and not realised in practice, the chapter goes on to consider the pursuit and realisation of justice through co-management, differentiating between procedural, distribution and recognition justice. Insights from the application of a human rights based approach to natural resource governance and implications for co-management are then identified.

Chapter 3 investigates the EU’s competence to regulate unhealthy lifestyles. Two main rationales for EU intervention in the field can be found in the TFEU. The first, historically and conceptually predominant, is related to the market. EU regulation contributes to the establishment of the EU internal market, by addressing the externalities of Member State lifestyle policies and their restrictive effect on free movement, of goods in particular. This rationale corresponds to broad and functional powers to eliminate trade barriers between Member States, via the EU’s fundamental free movement provisions, so-called negative integration, and the harmonisation of health standard at the EU level, positive integration. The second rationale concerns health as a standalone value, independent of the economic dimension of unhealthy lifestyles. For this rationale, the EU has been granted a much more limited competence. This explains why, in legal terms, EU law on unhealthy lifestyles remains a form of economic and market regulation, with a key role for Article 114 TFEU.