Even if the European Community had been into existence since 1952, the Single European Act 1986 and the Maastricht Treaty 1992 were the first providers of some protection for the environment. Europe’s environmental policy was developed throughout the Environmental Action Programmes published in 1972, 1977, 1982, 1983, 1987 and 1992. The European Community’s position it is set out in Article 2 of the EC Treaty:
The community shall have an its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Arts 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among member states.
The objectives of the EC policy are set out in the Treaty’s Article 174(1):
– Preserving, protecting and improving the quality of the environment
– Protecting human health
– Prudent and rational utilisation of natural resources
– Promoting measures at international level to deal with regional or worldwide environmental problems
Article 174(2) of the EC Treaty also provides the principles of EC environmental law stating that:
Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken that environmental damage should as a priority be rectified at source and that the polluter should pay.
The precautionary principle is the notion that even without scientific certainty no action will be stopped to protect the environment from harm. The birth of the precautionary principle is believed to lie in Vorsorgeprinzip – a principle of German administrative law (von Molkte 1988; Boehmer-Christiansen 1994) and it is translate as “prior worry or care”. The 1992 Rio Declaration on Environment and Development under principle 15 provides that:
In order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
As we mentioned above the precautionary principle in EU law is one of the bases for environmental policy (Article 174, EC Treaty) but on the other hand the Treaty did not provide a definition of the precautionary principle and confusion was arisen since it was placed next to the preventative principle. The resolution was carried out by the European Council of Ministers forcing the Commission “to be in the future even more determined to be guided by the precautionary principle in preparing proposals for legislation and in its other consumer-related activities and develop as priority clear and effective guidelines for the application of this principle” (COM,2000, 1, p.7). The result was the Commission’s Communication on the Precautionary Principle (COM, 2000) stating that precautionary principle should apply:
… where preliminary objective scientific evaluation, indicates that there are reasonable grounds for concern that the potentially dangerous effects on the environment, human, animal or plant health may be inconsistent with the high level of protection chosen for the community. Recourse to the precautionary principle presupposes that potentially dangerous effects deriving from a phenomenon, product or process have been identified, and that scientific evaluation does not allow the risk to be determined, with sufficient certainty. The implementation of an approach based on the precautionary principle should start with a scientific evaluation, as complete as possible, and where possible, identifying at each stage the degree of scientific uncertainty. (COM, 2000, p.3-4)
From time to time different versions-definitions of the precautionary principle were given by policymakers. Some of them were found strong and some weak. The EU definition of the precautionary principle was criticised as it appears to be a weak one. As we can see above this definition requires that limits be put on the uncertainty surrounding scientific knowledge. But what about cases where there is a great understanding concerning the impact of technology? It may be argued that in such cases the application of the precautionary principle would be limited and that the principle should be applied before a technology is even developed; when uncertainty is biggest.
In the same communication the Commission called the precautionary principle a “central plank” of Community policy, an opinion shared by the Court of First Instance (CFI) in the 2002 Alpharma decision. The same court (CFI) in Artegodan GmbH v Commission E.C.R II-4945 at , elevated the precautionary principle to a “general principle of community law” confirming its legal significance and the legitimacy of its application across policy sectors. Thus in the “Union we Trust”, ECJ Judge Koen Lenaerts describes the precautionary principle as a trust-enhancing principle of Community Law which aims to consolidate the trust that should be placed in Union authority by individuals. (Lenaert, “Union we Trust”, p.317-343).
Contrary to that in “What Price Safety”, Majone points out the principle’s “efficient aspect” in which precautionary approaches tend to get bigger regulatory judgment at the national and international level. (Giandomenico Majone, p.89-109) Majone comments that judgment can serve up legitimate public concerns and also assist protectionism or result defragmentation of global or regional public policy. This instead of enchasing trust the precautionary principle may end up supporting the dominance of administration over citizens and therefore erode the already unstable legitimacy of community law. This worries a number of US commentators as well who notify that the precautionary principle may do more harm than good. The two exceeding opinions may disagree on the nature and desirability of the changes formed by precautionary principle but both of them believe that the principle has a major impact on law and policy progress in the European Union.
However not everybody is persuaded of the principle’s importance. In “Guidance Without Constraint”, Veerle Heyvaert’s analysis of the precautionary principle in the reform of EC chemicals policy supports the conclusion that its importance as a policy principle is easily overplayed, and that it is virtually impossible to identify policy initiatives that would not have been developed but for the precautionary principle (Veerle Heyvaert, “Guidance Without Constraint. Assessing the Impact of the Precautionary Principle on the European Community’s Chemicals Policy” (2006) Yearbook of European Environmental Law). In the same research reviewing the impact of the precautionary principle on policy and rule making, Veerle Heyvaert noted that the principle although being a noticeable existence in European Community health and environmental policy has not obliged policy change.
As far as case law, the majority of case law concerning the precautionary principle reviews the validity of obligatory Community instruments, issued either by the Council and European Parliament, by the Council or by the Commission, with reference to precautionary principle. These are likely to engage decisions on whether or not to include a particular matter, product or process on a Community “affirmative list”, decisions on danger classifications of matters and composites or decisions whether or not to authorise or renew an authorisation for the marketing of products that may pose health or environmental risk.
When decision-makers become aware of a risk to the environment or human, animal or plant health that in the event of non-action may have serious consequences, the question of appropriate protective measures arise. Decision-makers have to obtain, through a structured approach, a scientific evaluation, as complete as possible, of the risk to the environment, or health, in order to select the most appropriate course of action. (COM 2000, 6.1, p.15)
The first EC case in which the court directly examined the precautionary principle in detail was Pfizer Animal Health SA v European Council (Case T-13/99 – All ER (D) 58. The producers of antibiotics used in feedstuffs for animals brought an action for termination of a regulation which banned the use of those antibiotics in animal feeds. The reason of the ban was concern that the use of these and other antibiotics might allow human resistance to develop and thus create a grave threat to human’s health by removing important therapeutic tools.
However the time of the regulation, the scientific evidence as to the reality and significance of such a risk was not conclusive and the decision to ban the antibiotics was therefore taken in the basis of precautionary principle. The CFI described the threshold of risk that was required to invoke the precautionary principle as more than a “purely hypothetical risk”. It could not be founded on “mere suppositions” not yet scientifically verified. (Monsanto ECR I-8105, EFTA Surveillance Authority v Norway EFTA Court Reports 2000-2001)
The CFI adopted a manifestly different approach to the precautionary principle in that case as in Alpharma Inc v European Council (Case T-70/99 – All ER (D) 59. Both cases are evidence of the developing confidence of the Courts to put a practical spin on precaution. Contrasting previous cases in which the Courts demonstrated judicial timidity the CFI in Pfizer and Alpharma attempted to shed light on the role of precautionary principle. Of exacting significance is the stage at which the Court predicted precaution operating in risk assessment. In both cases, it was held that the precautionary principle was only intended to apply in situations in which a potential risk existed.
The Courts have established a similar approach in other cases, by concluding that there must be at least a reasonable risk to human health or the environment. Extensive scientific evidence is required in order to prove that a risk is exists, even if its likely incidence and magnitude cannot be recognized with absolute certainty. Thus, a precautionary measure can only be legitimately taken only if the potentiality of a risk has sufficient scientific support. A degree of scientific evidence is, for that reason, necessary in order to verify theory and validate the execution of precaution.
On the other hand the Courts, more recently, have displayed a more liberal attitude towards the threshold of precautionary action. A number of cases have specified that the application of the precautionary principle may precede the scientific ascertainment of risk instead of requiring scientific verification. In Monsanto Agricoltura Italia SpA and Others v Presidenza del Consiglio dei Ministri and others ECR 00, Advocate General Alber recommended that even a theoretical risk might give reason for precautionary action. Therefore, conclusive evidence of the reality of the risk was ‘not required and precautionary action was estimated suitable even where the cause for concern was based on preliminary findings. Thus, precautionary action was justifiable when ‘no concrete threat to those resources has yet been demonstrated.
In the Wadden Sea case (Landelijke Vereniging tot Behoud van de Waddenzee and another v Staatssecretaris van Landbouw and another – All ER (EC) 353) the ECJ construed the precautionary principle as relating if doubt of a risky impact ‘cannot be excluded on the basis of objective information where there is doubt as to the nonappearance of environmental degradation.
Later on in the judgment, the Court noted that the precautionary principle would not apply only if the capable authority had made certain that the project would not harmfully affect the integrity of the site concerned. Knowing that it is impossible to predict for sure that a project will not harm the environment, the precautionary principle becomes continually applicable. While the CFI in Pfizer limited its application to scientifically verified risk, the Court in Wadden Sea effectively extended the operation of the precautionary principle all future uncertainty, irrespective of scientific proof.
The significance of this most recent position should not be underestimated. Not only does it illustrate the Courts increasing willingness to allude to the precautionary principle, but it also indicates a new philosophy in which they are prepared to push the limits of its application. The Courts are beginning to be familiar with the occurrence of future uncertainty, instead of relying on scientific validation of the possibility of a risk, and the inability of science to understand that which has not yet become visible. Since the first application of the precautionary principle in case law there has been a tremendous progress as far as the meaning of the principle and its importance. As we have seen above the Courts are eager to push the principle up to its limits and make the best use of it in future disputes.