Abstract
AbstractThis Article frames the precautionary principle as an inner limit to the EU institutions’ broad discretion in the field of EU risk regulation, contextualizing recourse to the principle against the more encompassing backdrop of socially acceptable risk approaches. On these grounds, it inquires to what extent the precautionary principle may be successfully invoked in challenges to acts which are deemed insufficiently protective. The opening sections set the ground for the analysis. The third section analyzes challenges to regulatory acts, arguing that the Court has followed a quantitative threshold approach. This is legally tenable and appropriate; however, it cannot do justice to the true nature of the precautionary principle. The following sections analyze cases involving legislative acts. This includes an in-depth examination of the recent Blaise case, which has put judicial review of compliance with the precautionary principle under the spotlight. Against this overall background, this Article concludes that judicial review can hardly do justice to the precautionary principle, as applicable to the risk management process and underpinning EU legislative frameworks. It will ultimately rest on EU risk managers and EU legislators to ensure that the principle is applied and that its overarching goals are pursued.
Highlights
The Court has drawn some boundaries between judicial review of compliance with the precautionary principle, on the one hand, and an acknowledgment of the risk manager’s discretion in complying with the precautionary principle, on the other hand
The difficulties that the Court faces in its legal examination are inherent to the nature of the principle. It will rest on EU risk managers and EU legislators to ensure that the precautionary principle is applied and that its overarching goals are pursued
The case law of the Court has acknowledged the need for EU risk managers or EU legislators to take the precautionary principle into due consideration when adopting risk regulation measures
Summary
The precautionary principle and its role, overarching tenets, and implications has intrigued academic commentators for years. Its application to risk management and societal and political. Principle may apply where “scientific information is insufficient, inconclusive, or uncertain and where there are indications that the possible effects on the environment or human, animal or plant health may be potentially dangerous and inconsistent with the chosen level of protection.”15 This definition is broader and arguably more accurate than the one found in the General Food Law. This definition is broader and arguably more accurate than the one found in the General Food Law It can encompass all forms of scientific uncertainty. The notion of administrative discretion, as such and as unqualified by further indications, is unrelated to the overarching tenets of the precautionary principle and the pursuit of a high level of protection.25 In this sense, the acknowledgement of the risk manager’s broad discretion limits the opportunities to challenge EU acts on the grounds of a breach or misapplication of the precautionary principle. For the purposes of this analysis, the precautionary principle must be set against the broader picture of socially acceptable risk approaches. In other words, the precautionary principle cannot be analyzed in isolation
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