Specific Principles
Precautionary principle
Where there is uncertainty about the risk of environmental harm, the precautionary principle allows or requires protective measures to be taken without having to wait until the harm materialises. There is a set of factors shared in every definition of the precautionary principle - existence of danger and scientific uncertainty. As a result, the precautionary principle always deals with potential harm and serves as a tool to bridge uncertain scientific information and a political responsibility.
The principle has been applied globally to guide policy on issues such as chemicals and food safety, air quality or climate change. It is generally perceived, that the concept of precautionary principle in the EU law tends towards strict precaution and follows the “better safe than sorry” approach. For example, the EU’s GMO policies are based on a strict application of the precautionary principle, which makes them the most restrictive ones in the world.
In EU legislation, the applications of the principle include, inter alia, the Environmental Quality Standards Directive, which sets environmental quality standards for priority substances on a precautionary basis. Similarly, the Water Framework Directive sets standards of various persistent organic pollutants, potentially toxic metals such as cadmium, and polycyclic aromatic hydrocarbons to achieve 'good' water quality. The deliberate release of Genetically Modified Organisms, including requirements for field testing in the research and development stage assessing how their use might affect ecosystems is subject to the GMO Directive.
Protection of Natura 2000 site is also based on precaution. In particular, Art. 6(3) of the Habitats Directive requires impact assessments to be carried out where a plan or project is likely to have a significant effect on the integrity of a designated habitat site.
In Case C-254/19 Friends of the Irish Environment, the CJEU held that the assessment of a project's implications must be carried out where it cannot be ruled out, having regard to the best scientific knowledge in the field, that the plan or project might affect the conservation objectives of the site. A previous assessment of that project, carried out before the original consent for the project was granted, cannot rule out that risk unless it contains full, precise and definitive conclusions capable of removing all reasonable scientific doubt as to the effects of the works, and provided that there are no changes in the relevant environmental and scientific data, no changes to the project and no other plans or projects.
The case law of the CJEU has had a great impact on further development of the precautionary principle in the EU law, with milestone cases such as C-174/82 Sandoz and T-13/99 Pfizer Animal Health v Council. The principle was first employed by the CJEU in relation to the EU institutions in late 1990s in two judgments in the context of the BSE crisis (Case C-157/96 National Farmers’ Union and Others; Case C-180/96 United Kingdom v Commission). Since then, it has been used both in relation to measures of the EU institutions or to measures of Member States, in derogation of the rules on free movement. In all cases there was indeed no scientific certainty as to the existence or extent of a risk to human health. Typically, cases arose in the area of vitamin or otherwise enriched foodstuffs (Case C-192/01 Commission v Denmark), novel foods (Case C-236/01 Monsanto Agricoltura Italia and Others), labelling requirements applicable to foods and food ingredients consisting of, or derived from, GMOs (Case C-132/03 Codacons and Federconsumatori) and again, the BSE (Case C-504/04 Agrarproduktion Staebelow).