the precautionary principle

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Environmental Law

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:

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      ... 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 ...

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