The EC courts' contribution to refining the parameters of precaution

Abstract

By virtue of its ambiguity, it has largely been left to the courts to flesh out the scope and application of the precautionary principle. This paper examines the contribution made by EC courts to defining the parameters of precautionary decision making. In so doing, it illustrates that, though the precautionary principle is seen to operate in a number of regulatory contexts, discernible trends in judicial interpretations of precaution and the underlying notion of ‘uncertainty’ can nevertheless be identified. In contrast with early judgments, the courts are beginning to explicitly interpret risk assessment processes as having a pivotal role in determining precautionary intervention. Rather than finding simply that circumstances of uncertainty warrant precautionary measures, the courts have started to require that clear, or ‘concrete’, evidence of harm, deriving from risk assessment, is established before intervention is justified. This paper posits three explanations for this shift: (i) the ‘better regulation’ initiative within Europe; (ii) the Commission's Communication on the Precautionary Principle; and (iii) WTO litigation on precautionary safeguard measures. The judicial move to affiliate precaution with risk assessment processes in decision making can be seen as a reflection of these factors.

Keywords:

• precautionary principle
• risk assessment
• risk regulation
• scientific uncertainty
• EC case law

Acknowledgements

The research leading to this article forms part of a study, supported by the Leverhulme Trust, on the precautionary principle in practice. I owe thanks to Professor Jonathan Wiener, Kirsty Keywood, Carolyn Abbot, John Coggon and Sheelagh McGuinness for their very helpful comments on earlier drafts of this paper. I would also like to thank the anonymous reviewers for their valuable criticisms and suggested revisions. Responsibility for any errors is my own.

Notes

1. Note that the EFTA Court has also passed down decisions relating to the precautionary principle (e.g., Case E‐3/00 EFTA Surveillance Authority v. The Kingdom of Norway, 5 April 2001; Case E‐4/4 Pedicel, 25 February 2005) though its contribution to precautionary jurisprudence is comparatively weak.

2. Note that this figure excludes judgments of specialised EC courts.

3. Article 3.

4. Recital 21 of Regulation 2821/98.

5. The SPS Agreement is concerned with protecting against risks to human, animal, or plant life or health. Provided measures do not pose an unjustified barrier to trade, the SPS Agreement preserves the right of Members to establish the level of protection they consider appropriate (Article 2.3).

6. For detailed case analyses, see MacMillan 2001; Winickoff et al. 2005; Scherzberg 2006 For broader comparisons between EC and US regulation of risk, see Wiener and Rogers 2002; Wiener 2003; Löfstedt and Vogel 2001.