By Gary E. Marchant, Kenneth L. Mossman
This learn examines how the eu Union has used the precautionary precept in criminal judgements.
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Additional info for Arbitrary and Capricious: The Precautionary Principle in the European Union Courts
21 To begin with, the structure of this statement suggests that some “scientifically unfounded presumptions” might be sufficient to trigger national protective measures pursuant to the precautionary principle. 22 The EU case law is also inconsistent about the outcome required when the precautionary principle is applied. ”23 This decision suggests a rather lenient construction of the precautionary principle, which does not even require installation of the best available technology to control risks that are otherwise sufficient to trigger application of the precautionary 01_4 Chapter 4 7/16**CC 8/4/04 8:26 AM Page 33 EUROPEAN UNION COURTS 33 principle.
8 But, given that every risk involves some uncertainty, it is not clear when risk is “sufficiently” uncertain to justify application of the precautionary principle. The communication also states that a political decision is necessary to determine when a risk is “acceptable” but gives little guidance on how such acceptability is to be determined. While the communication emphasizes the need to avoid misuse of the precautionary principle for arbitrary or protectionist purposes, it is not apparent how this is to be accomplished, given the continuing vagueness of the precautionary principle.
When a regulatory action invoking the precautionary principle (or that failed to appropriately apply the principle) is challenged in court, a judicial decision on the merits of that challenge must address the underlying justification for the regulation, including, where relevant, the applicability and meaning of the precautionary principle. 1 A table listing these decisions is provided in the appendix. The role the precautionary principle played in these decisions varied considerably, from insignificant in some cases to central to the outcome in others.
Arbitrary and Capricious: The Precautionary Principle in the European Union Courts by Gary E. Marchant, Kenneth L. Mossman