The Precautionary Principle in European Union Law

Abstract

          The precautionary principle is a general principle that appears in international law and domestic law of certain countries. It is also a crucial principle applied within the European Union (EU) at both the member state level and the EU level. Member states or EU bodies reference this principle as a basis for enacting protective measures in cases where there are reasonable grounds for concern about potentially dangerous effects on the environment, human health, animals, or plants. However, certain issues have arisen concerning the application of the precautionary principle, as its implementation relies on the discretion of decision-makers to choose whether to apply it to each individual case. Even though the Treaty on the Functioning of the European Union explicitly mention the precautionary principle, there is no provision that defines the “precautionary principle” or explains how it should be applied. This article aims to explore the practices of how the EU applies the precautionary principle, based on Communication from the Commission on the precautionary principle 2000, guidelines for application by EU bodies and member states, as well as examples from the judgments of the Court of Justice of the European Union (CJEU). This study found that the precautionary principle is present in both the treaties and secondary legislation of the EU, which binds EU institutions and member states to comply with it. When interpreting these laws, the CJEU is also likely to interpret them in line with the precautionary principle. In cases where EU institutions or member states wish to take a protective measures in specific circumstances where the risks are not yet fully apparent, the preventive measure cannot be based purely on hypothetical considerations Such a measure may only be taken if it is adequately backed up by the scientific data available at the time the measure is taken. However, the CJEU considered the assessment of risk before taking legal measures to be within the discretion regarding the environmental policy which is exclusive to the legislative branch and the court is not entitled to substitute its assessment of the facts for legislative branch. Therefore, the CJEU will not review the factual correctness of scientific data but only consider whether the discretion of policymakers is vitiated by a manifest error or misuse of powers, or whether the authority clearly exceeded the bounds of its discretion. Additionally, in many cases, the court must also review whether such measures align with the principle of proportionality.