The precautionary principle, April 2000

In February 2000 the European Commission issued a Communication on the precautionary principle ( COM (2000) 1 final (2.2.00)). The Communication sets out how the Commission intends to apply the principle, with a view to establishing a 'common understanding' of what the principle entails.

The principle essentially relates to 'risk assessment': what is the 'acceptable risk' for consumers, citizens, workers, animals or plants when new products, processes or inventions are developed - and. maybe subsequently, traded across regulatory and/or national boundaries. While the obvious ideal is to reach full, unanimous, universal scientific certainty on safety and environmental grounds, this is not always possible - for example, some impacts of an invention may only appear after a long period of time. Equally, one country might permit a process which another country does not. These questions are highly relevant and important in the fast-changing and globalised economy of today.

The precautionary principle has been invoked on a number of occasions in the past few years in the EU on such issues as:

• the ban on the export of British beef in connection with the BSE crisis
• the ban on the import into the EU of beef cattle treated with bovine growth hormones
• the development of genetically modified crops
• food safety
• climate change
• management of fisheries
• the chemical composition of children's toys.

In all these issues, and others, there is room for considerable and fundamental disagreement amongst parties concerned as to what is 'acceptable risk'. Is, for example, use of the precautionary principle by governments the legitimate 'protection' of its citizens or disguised 'protectionism' against others?

A summary of the legal and other bases for EC decisions on precautionary measures is given in Annex 1 of the Commisison's Communication.

In Focus explores this elusive but significant concept as seen in the Commission Communication and in sources from other agencies and organisations. Acknowledgement is given to Timothy Bainbridge for help with the opening section.

Background

The precautionary principle is referred to, but not defined, in Article 174.2 of the Treaty of Rome [PDF] (as subsequently amended):

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 …

While the origin of the principle is in the field of environmental policy, it is clearly capable of being applied more widely in such sensitive areas as food safety, the transport of dangerous goods, consumer protection, and public health. The Commission Communication says that the precautionary principle can be used:

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.

The wide-ranging impact of the principle can be seen in the large number of European Commission Directorates-General (DG) that had an input into the creation of the Communication: The 'lead' DG was Health and Consumer Protection (SANCO), with Enterprise (ENTR) and Environment (ENV) also playing a key role. The following further DGs were also associated: Agriculture (AGRI), Economic and Financial Affairs (ECFIN), Internal Market (MARKT), External Relations (RELEX), Research (RTD), Trade (TRADE) and the Secretariat-General.

In the absence of a common understanding of what the principle means and of how the appropriate degree of 'precaution' should be assessed ('proportionality'), there is an obvious risk that national authorities within the Union, or the Union itself in relation to other countries or trading blocs, may have recourse to the principle as a form of hidden protectionism. The pro-free market European Commissioner for External Trade, 1995-1999, Sir Leon Brittan, said at a World Trade Organisation High-Level Symposium on Trade and the Environment in March 1999:

I accept the legitimacy of the concept of precaution in the field of environment and health. However, there are dangers in allowing a general, open-ended precautionary principle without defining what it means and in what circumstances it might be used.

We should together reflect on how, at the same time, to give it greater definition and prevent it from being invoked in an abusive way.
Sir Leon Brittan: Speech (WTO, 1999)

Environmental and consumer groups, in particular, have campaigned for a meaningful application of the principle. One of the key manifestations of this call is The Wingspread Consensus Statement on the Precautionary Principle, which was agreed following The Wingspread Conference on the Precautionary Principle convened in 1998 by the Science and Environmental Health Network, an organization that links science with the public interest in the United States.

The precautionary principle in international law

The principle is already a feature of much international law on the environment. Basically, it allows preventative action to be taken as a precautionary measure. A clear definition was given in the Ministerial Declaration of the Second International Conference on the Protection of the North Sea (1987):

In order to protect the North Sea from possibly damaging effects of the most dangerous substances, a precautionary approach is necessary which may require action … even before a causal link has been established by absolutely clear scientific evidence.

The so-called Rio Declaration of 1992 includes as Principle 15 the precautionary principle amongst the rights and obligations of signatory states:

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.
United Nations Conference on Environment and Development, 1992

The principle has also been invoked in the following multilateral environmental agreements:

• Montreal Protocol on Substances that Deplete the Ozone Layer, 1987

• United National Framework Convention on Climate Change, 1992 (including the Kyoto Protocol)

The treaty promotes action in spite of uncertainty on the basis of a recent development in international law and diplomacy called the 'precautionary principle.' Under traditional international law, an activity generally has not been restricted or prohibited unless a direct causal link between the activity and a particular damage can be shown. But many environmental problems, such as damage to the ozone layer and pollution of the oceans, cannot be confronted if final proof of cause and effect is required. In response, the international community has gradually come to accept the precautionary principle, under which activities that threaten serious or irreversible damage can be restricted or even prohibited before there is absolute scientific certainty about their effects.
Understanding Climate Change: A Beginner's Guide to the UN Framework Convention

• Convention on Biological Diversity, 1992

• Agreement on the Application of Sanitary and Phytosanitary Measures , 1994 (WTO)

Further examples are given in Annex II to the Commission Communication. A very substantial list, with hyperlinks, is provided by the US-based Science and Environmental Health Network

The European Commission's Communication

The new Commission President, Romano Prodi, chose the subject of food safety for one of his first key speeches after taking office in the autumn of 1999. Within his speech he mentioned the concept of the precautionary principle:

The idea behind the precautionary principle … is that provisional safety measures should be taken where scientific information is incomplete, and while there are still safety concerns. The problem is that scientific information is always incomplete : knowledge is constantly advancing. So how much of a health concern must there be, and in whose mind, before a trade restrictive measure is introduced on the basis of the precautionary principle, and how complete must our scientific knowledge be before the measure is dropped? Clarification is needed here … Before the end of the year, therefore, we shall present to the Council and the European Parliament a White Paper on Food Safety [PDF] and a Communication on the precautionary principle. [PDF]
European Commission: Speech: SPEECH/99/121 (5.10.99)

In the event the Commission adopted the Communication (a discussion document) in February 2000. The Commission said:

The objective of the Communication is to inform all interested parties how the Commission intends to apply the principle and to establish guidelines for its application. The aim is also to provide input to the on-going debate on this issue both at EU and international level. The Communication underlines that the precautionary principle forms part of a structured approach to the analysis of risk, as well as being relevant to risk management. It covers cases where scientific evidence is insufficient, inconclusive or uncertain and preliminary scientific evaluation indicates that 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 by the EU…

The Communication also qualifies the measures that may be taken under the precautionary principle. Where action is deemed necessary, measures should be proportionate to the chosen level of protection, non-discriminatory in their application and consistent with similar measures already taken. They should also be based on an examination of the potential benefits and costs of action or lack of action and subject to review in the light of new scientific data and should thus be maintained as long as the scientific data remain incomplete, imprecise or inconclusive and as long as the risk is considered too high to be imposed on society. Finally, they may assign responsibility - or the burden of proof - for producing the scientific evidence necessary for a comprehensive risk assessment. These guidelines guard against unwarranted recourse to the precautionary principle as a disguised form of protectionism.
European Commission: Press Release: IP/00/96 (2.2.00)

The Communication makes clear that the precautionary principle is neither a politicisation of science or the acceptance of zero-risk but that it provides a basis for action when science is unable to give a clear answer.

The Commission formally submitted the Communication to the Council of the European Union and the European Parliament. Those Institutions, and other bodies such as the Economic and Social Committee and the Committee of the Regions, will, in due course, formally respond. To follow these developments carry out a search on:

• PreLEX
• OEIL

In addition, it is likely that some of the Scientific and Environmental Committees will also pass comment upon the Communication.

Further information within European Sources Online:

European Sources Online: European Voice, 16.12.99: Commission rebuffs critics of precautionary approachEuropean Voice, 3.2.00: European Commission unveiled its long-awaited policy paper on the precautionary principle yesterday (2 February)European Voice, 10.2.00: Standing up for the precautionary approachEuropean Voice, 10.2.00: Action programme to focus on implementationEuropean Voice, 10.2.00: Chemicals policy overhaul plannedBusiness Guide to EU Initiatives, 1999: Risk and its analysis
Business Guide to EU Initiatives, 1999, Risk assessment legislation for new and existing substances
Business Guide to EU Initiatives, 1999, Trade and the environment
Business Guide to EU Initiatives, 1999, Liability for environmental damage

Further information can be seen in these external links:
(long-term access cannot be guaranteed)

Baker and McKenzie, October 1999: The precautionary principle in European law

Baker and McKenzie, April 2000: Commission Communication on the Precautionary Principle

CEPA (Canadian Environmental Protection Act), 1999- : CEPA and the Precautionary Principle/Approach

Denmark: Ministry of Environment and Energy: Danish Environmental Protection Agency, 1998: The precautionary principle, April 2000

Eco-Compass, : Implementing the Precautionary Principle

EU Committee of the American Chamber of Commerce in Brussels: Position Position on a Comprehensive Risk Analysis Process, 1999

European Chemical Industry Council (CEFIC): Press Release, 3.2.00: European Chemical Industry welcomes European Commission's Communication on the precautionary principle

European Chemical Industry Council (CEFIC): Position Paper, 8.12.99: The precautionary principle, April 2000

European Consumers' Organisations (BEUC), April 1999: Precautionary principle: BEUC comments on guidelines for the application of the precautionary principle [PDF]

European Environmental Bureau (EEB), December 1999: EEB Position on the Precautionary Principle

European Environmental Bureau (EEB), February 2000: The Precautionary Principle in the spotlight: whilst accepting procedural restrictions the Commission intends to retain the freedom of political decision-making

Greenpeace, 23.3.00: WTO must apply the precautionary principle

Organisation for Economic Co-operation and Development, 1998: Sustainable Development: A Renewed Effort by the OECD

Public Citizen, March 1999: Comments of Public Citizen, Inc., on the U.S. Delegation to the Codex Committee on General Principles' Proposed Draft Recommendations on the Application of the Precautionary Principle

Science and Environmental Health Network (SEHN): Precautionary Principle website (includes substantial number of links to further relevant sites)

Steven Milloy: National Post, 7.2.00: Unreasonable precautions

Wybe Th. Douma, 1996: The precautionary principle, April 2000

Ian Thomson
Executive Editor, European Sources Online
Compiled: 29 April 2000

In February 2000 the European Commission issued a Communication on the precautionary principle The Communication sets out how the Commission intends to apply the principle, with a view to establishing a 'common understanding' of what the principle entails