The precautionary principle in the European Union environmental acquis

Abstract

The precautionary principle describes one theory of how the environmental regulatory community should deal with the problem of true uncertainty. The principle states that, rather than await certainty, regulators should act in anticipation of any potential environmental harm to prevent it. It means that if there is threat or risk of serious or irreversible damage to human health or the environment, precautionary actions must be taken even though there is lack of full certainty surrounding the issue. The precautionary principle was explicitly recognised during the United Nations Conference on Environment and Development in Rio de Janeiro 1992. Since then it has been included in virtually every recent treaty and policy document related to the protection and preservation of the environment. It is so frequently invoked in international environmental resolutions that it has come to be seen by some as a basic normative principle of international environmental law. Judicial decisions involving the precautionary principle provide the most informative insight into its meaning and effect. The European Community (EC) Courts have had a role in shaping the controversial precautionary principle. Both the European Court of Justice and the Court of First Instance contributed to the development of the precautionary principle when they were called upon to review the legality of national and Community measures inspired by the precautionary approach. They laid the ground for the recognition of the principle in EC legal order, making it a general principle of Community law and also defined the conditions triggering its invocation - thus determining when, how and by whom the precautionary principle may be relied upon in Community legal order. However, it is argued that there is uncertainty and inconsistency in the meaning and application of the precautionary principle by the Courts and by the European Commission.