Precaution

The traditional approach to environmental problems has been to take measures to prevent, reduce, or control proven harm to the environment through, for instance, emission standards or limits on how a substance should be handled. This approach to problems reached a turning point when the precautionary principle was added, through the Treaty of Maastricht, to the list of Community environmental principles in the then Article 174 (2) EC. It is clear from what is now Article 191 (2) TFEU that the precautionary principle is fundamental for EU environmental policy.

Application of the principle is, however, not limited to those areas where the EU has adopted acts based on legal grounds for environmental protection. The jurisprudence of the Court of Justice shows that the principle is also, inter alia, applicable when EU institutions adopt protective measures for human health within the framework of the common agricultural policy.101 This follows from the fact that action to protect human health is part of environmental policy and that this must be integrated into the definition and implementation of other policies.102 The precautionary principle is also expressed in legal acts based on other grounds than environmental policy.10³ The principle is relevant wherever protection of environment or health comes to the fore in the framework of EU activities.

In 2000, the Commission published a communication on the precautionary principle.^{[1] [2] [3] [4] [5] [6]} The Communication, which is not legally binding, informed about the Commission’s approach in applying the principle, and sought to clarify a misunderstanding as regards the distinction between reliance on the precautionary principle and the search for zero risk as well as to prevent unwarranted recourse to the principle as a disguised form of protectionism.^

The Communication sets out that the precautionary principle should be considered within a structured approach to risk analysis that includes risk assessment, risk management, and risk communication.™⁶

Those measures that can be adopted according to the precautionary principle are also mentioned in the Communication. If a measure is deemed necessary, it should be proportional to the level of protection, non-discriminatory in application, and compatible with other measures already adopted. Such measures should also be based on examination of the potential advantages and disadvantages of an action or inaction, and be subject to review in the light of new scientific information. The measures should have a provisional nature, but can remain in force as long as the scientific information is incomplete, imprecise, and inconclusive, and as long as the risk is considered too high to expose the population to.™⁷

Note that the precautionary principle shall be applied when a risk has not yet been fully demonstrated but it does not apply with respect to purely hypothetical risks that lack a scientific basis.™⁸ The concept of risk should be understood as the degree of probability that use of a product or a procedure will adversely affect a legally protected interest. That there are scientific opinions that militate against the existence of risk or against the fact that it may exceed a level deemed acceptable is not in itself a barrier to action as long as there is corresponding scientific evidence that the risk does exist or exceeds an acceptable level.™⁹

In a case concerning measures for the protection of human health, the Court of Justice found that a correct application of precautionary principle requires:

first, identification of the potentially negative consequences for health of the proposed use of processing aids, and, secondly, a comprehensive assessment of the risk to health based on the most reliable scientific data available and the most recent results of international research.!™

As mentioned previously, incorrect application of the precautionary principle can result in the annulment or setting aside of the legal act. It can also affect the implementation of EU law or national rules that implement such law, through an interpretation of the law in the light of the principle. An example is the Waddenzee case where the Court of Justice stated that the Habitat Directive shall be interpreted in the light of the precautionary principle. The result was that a probability or a risk that a plan or project is likely to have a significant effect on a protected site exists ‘if it cannot be excluded on the basis of objective information that the plan or project will have significant effects’ on a relevant area.^{[7] [8] [9] [10] [11]}

In another case, the Court has examined the legality of a directive adopted by the Commission to temporarily limit, as a precaution, the use of fenarimol, an active substance in plant protection products.112 The legality of the use of the precautionary principle as a basis for adoption of the Commission’s directiveⁿ³ was challenged by a producer of the plant protection products. The Court held that since there was some scientific uncertainty regarding the assessment of the effects on the endocrine system of substances such as fenarimol, the Commission’s decision to restrict the use of that substance could not be considered to be a manifestly erroneous application of the precautionary principle.ⁿ⁴ Given the numerous scientific studies that had been invoked to prove the invalidity of the Commission’s decision, the Court’s conclusion seems to imply a wide scope of the precautionary principled^

• [1] Communication of the Commission on the precautionary principle (2 February 2000)COM(2000)1 final.
• [2] Ibid, 8. 106 Ibid, 12. 107 Ibid, 17-20.
• [3] 108 Case T-13/99 Pfizer Animal Health (n 99), para 146 (see the earlier paragraphs of the judgment
• [4] for reference to relevant case law).
• [5] 109 Case T-13/99 Pfizer Animal Health (n 99), para 393.
• [6] 110 CaseC-333/08 Commission v France ECLI:EU:C:2010:44, para 92.
• [7] Case C-127/02 Waddenzee (n 58), para 44.
• [8] CaseC-77/09 Gowan ECLI:EU:C:2010:803.
• [9] из Commission Directive 2006/134/EC amending Council Directive 91/414/EEC to include fenarimol as active substance [2006] OJ L 349/32.
• [10] 114 Ibid, para 79.
• [11] For an overview of other relevant cases and the difference between different kinds of cases, see deSadeleer EU Environmental Law and the Internal Market (n 96) 76—89.