Implementing the Precautionary Principle

Approaches from the Nordic Countries, EU and USA

Nicolas de Sadeleer

• Publisher: Routledge
• Year: 2012
• eBook ISBN: 9781136563225
• Topic: Politics & International Relations
• Subtopic: Ecology
• Index: Politics & International Relations

From fisheries to persistent organic pollutants to climate change itself, no other environmental principle in environmental law has produced as much controversy as the precautionary principle.

Unlike a preventive approach in which action is taken provided that the threats to the environment are tangible, with a precautionary approach, authorities are prepared to tackle risks for which there is no definitive proof that the damage will materialize. The ramifications of this increasingly apparent approach are profound and cut across all areas of risk assessment and management, environmental law, policy and regulation in every major sector. However, to date little thought has been dedicated to the implementation of the precautionary principle in a wide array of environmental circumstances.

This authoritative handbook addresses the legal aspects of how the precautionary principle is implemented in different sectors, and examines its successes, failures, strengths and weaknesses. Sectors and subjects covered include chemicals, GMOs, marine pollution, fisheries and nature conservation, and the book draws on cases in the EU, in the USA, and Nordic countries, where the use of precaution has been gathering momentum. Ultimately, the book provides an indispensable appraisal of the question - increasingly important in the era of human-induced climate change - of whether the precautionary principle is relevant, indeed essential, to avert major environmental and health risks, and how and when it can be used successfully.

Published with MARIE CURIE ACTIONS

PART I

European Community Law

CHAPTER 2

The Precautionary Principle in European Community Health and Environmental Law: Sword or Shield for the Nordic Countries?

Nicolas de Sadeleer

INTRODUCTION

This chapter attempts to set the scene for this book on the rise of the precautionary principle in the environmental legislation of the Nordic countries, chiefly by explaining the status of the principle in European Community (EC) law and the manner in which it might influence further developments in those countries.¹ Hence, this chapter will serve as a baseline against which other authors may discuss the way in which the precautionary principle has been substantiated in different Nordic environmental legal systems or applied by various administrations in those countries. Space limitations prevent us from discussing the status of the principle in international law except briefly to touch on the obligations flowing from the World Trade Organization (WTO) legal order, which are particularly pertinent for sanitary and phytosanitary measures.

By and large, this chapter aims to illustrate the two sides of the principle: the interpretation endorsed by the European courts could restrict the room for manoeuvre of Denmark, Finland and Sweden when they wish to depart from European Union (EU) harmonized standards; but it could also support new reforms within various environmental sectors.

Known at the start of the 1990s by only a few specialists in environmental law, the precautionary principle has been able to establish itself as a new general principle of community law within the space of a decade.² This chapter will not reopen discussion on the meaning of this principle other than to recall its function as the expression of a philosophy of anticipated action not requiring that the entire corpus of scientific proof be collated in order for a public authority to be able to adopt a preventive measure. Enshrined in paragraph 2 of Article 174 of the EC Treaty – a provision declaring the principles underpinning Community action in the field of environmental protection – it has, however, not been defined by the EC Treaty framers, even though there are various definitions in international environmental law. The academic literature has, thus, considered first whether it is a restricted sectoral principle, applicable only to environmental policy, or a more general principle of Community law and, second, whether its application is limited to Community institutions only.³ It has also addressed the question as to whether the principle could also be invoked by the member states to justify technical measures hindering the free movement of goods. As far as the manner of application is concerned, various questions remain unanswered. Must one aver a serious, significant, irreversible or collective risk? Does the adoption of a measure require a minimum set of indications showing that the suspected risk is well founded, or are public authorities relieved of all requirements to furnish proof when confronted with an important risk? As for its implementation, should action be limited exclusively to moratoria, or are control and surveillance measures sufficient? And if this is possible, for how long should these measures apply? Praised by some, disparaged by others, the principle is, indeed, no stranger to controversies.⁴ Consequently, it is not the purpose of this chapter to outline, even in broad terms, the irresistible rise of the precautionary principle within EC law and to summarize the controversies swirling around this process.⁵

What deserves attention is how Community case law has not only managed to extend the scope of application of the precautionary principle to all policies involving scientific uncertainty, but has also introduced extremely useful clarifications on the application of the principle, particularly in the domain of public health.

As a matter of fact, one needs to draw a line between, on the one hand, the health and food safety cases, where scientific knowledge is far more advanced than it is in the environmental sector, and, on the other, genuine environmental cases (such as waste management and nature conservation), where the uncertainties are far more important given the difficulty of predicting the reactions of ecosystems to ecological risks (e.g. climate change). In addition, the stricter approach endorsed by the European courts with respect to the health and food safety cases can be explained by the fact that those cases chiefly deal with the placing on the market of products – genetically modified organisms (GMOs), food additives and medicinal products – where a fundamental principle of the EC Treaty, the free movement of goods, is at stake. In sharp contrast to this, the environmental cases so far decided by the European Court of Justice (ECJ) deal mostly with the interpretation of provisions of several environmental directives, rather than with the functioning of the internal market.

To begin with, we will discuss the status of the principle in the EC constitutional order. In the second section, the focus will be placed on the manner in which the principle is used by the ECJ to solve environmental cases. After this discussion, the focus will shift to recent Court of First Instance (CFI)⁶ and ECJ⁷ judgments dealing with health protection issues, which have clarified both the status of the principle and its manner of application. In this respect, it is worthy of note that the CFI judgments draw, to a large extent, upon the case law of the ECJ, which, conversely, endorses most of the CFI's observations. In any case, those cases give rise to a number of questions.

STATUS OF THE PRECAUTIONARY PRINCIPLE
UNDER EUROPEAN COMMUNITY (EC) LAW

Status of the precautionary principle under the EC treaty

The precautionary principle has only latterly gained respectability under Community law. Although it had been enshrined as a general principle of international environmental policy at the 1992 United Nations Conference on Environment and Development (UNCED) at Rio de Janeiro, its introduction into the EC legal order had to await the adoption of the Maastricht Treaty, with its elevation to the same status as the other principles of environmental law laid down in Article 174(2), a provision obliging institutions to base their environmental policies on principles drawn from public international law.

Let us turn to two fundamental observations with regard to this provision.

First, Article 174(2) is drafted in such a way that the institutions are obliged to apply precaution when carrying out action in the environment field. The use of the indicative rather than the conditional confirms that such provision is binding: ‘Community policy on the environment … shall be based on the precautionary principle’. However, in contrast to rules of determinate content, the precautionary principle set out in the Article 174(2) always allows for the possibility of accommodation. In other words, the EC institutions may depart from it under particular circumstances.

Second, Article 174(2) does not provide a definition either of the principle, or of the closely linked principles encapsulated in that provision. The lack of definition could be justified on the grounds that the implementation of these principles across a wide range of policies is rather contextual.

To fill this gap, the European Commission produced a communication in February 2000 seeking to inform all interested parties of the manner in which the Commission applies or intends to apply the principle when taking decisions relating to the containment of risk.⁸ The communication describes precaution as a risk management tool that is part of a risk analysis framework. While the communication is typically a soft-law instrument, it is not devoid, however, of any legal consequences. Indeed, applying the principle of equal treatment, the EC judiciary can ascertain whether an EC measure is consistent with the guidelines that the institutions have laid down for themselves by adopting such a communication.⁹

The hopes placed in that principle are just beginning to find concrete expression, although this development appears more advanced in the field of public health than in that of the environment.¹⁰ Its main appearance in environmental matters is in regulations concerning dangerous substances, food safety and GMOs, particularly their effects on people and the environment.¹¹

Clarifications brought by the case law of the European Court of Justice
(ECJ) and the Court of First Instance (CFI)

The jurisprudential definition of the precautionary principle runs as follows: ‘where there is uncertainty as to the existence or extent of risks to human health, protective measures may be taken without having to wait until the reality and seriousness of those risks become fully apparent’.¹²

Given this broad definition, the principle covers an array of environmental issues ranging from wildlife conservation measures to chemical management issues.

In addition, the field of health protection was immediately able to put the precautionary principle on a firm footing: on the one hand, the objectives of environmental policy also embrace those of the protection of health (Article 174(1)), while, on the other, all policies and actions undertaken by the European Community should ensure an increased level of protection of human health (Article 152). On the basis of these premises, the European Court of Justice extended, initially implicitly¹³ and then subsequently explicitly,¹⁴ the precautionary principle to the domain of public health.¹⁵

With regard to the broad scope of the principle, further guidance has been provided by the Court of First Instance. In the case Artegodan, the CFI confirmed that the precautionary principle's scope of application went wider than environmental policy insofar as it is intended to apply to all areas of Community action, with a view to ensuring an increased level of protection of health, the environment and consumer safety. According to the CFI, the extension of its field of application is justified by the requirement to pursue an increased level of consumer (Article 153), environmental (Article 174(2)) and health (Article 3, p) protection, as well as by the different integration clauses which the EC Treaty contains in the areas of environmental (Article 6) and health (Article 152(1)) protection.¹⁶

Due to its highly abstract nature and particularly broad scope of application, the precautionary principle could then be defined ‘as a general principle of Community law requiring the competent authorities to take appropriate measures to prevent specific potential risks to public health, safety and the environment, by giving precedence to the requirements related to the protection of those interests over economic interests’.¹⁷ Furthermore, the CFI laid particular emphasis upon the autonomous nature of the principle:

Since the Community institutions are responsible, in all their spheres of activity, for the protection of public health, safety and the environment, the precautionary principle can be regarded as an autonomous principle stemming from the above mentioned Treaty provisions.¹⁸

Accordingly, the emp...

Table of contents

• Front Cover
• Title Page
• Copyright
• Contents
• List of Contributors
• Table of Legislation
• Table of Cases
• List of Figures and Tables
• List of Acronyms and Abbreviations
• Introduction
• Part I: European Community Law
• Part II: Comparative Analysis of the Precautionary Principle in the Nordic Countries
• Part III: The Precautionary Principle and the Law of the Sea – A Nordic Perspective
• Part IV: Precaution, Genetically Modified Organisms and Biodiversity
• Part V: The Precautionary Principle and Chemicals
• Conclusion
• Index