Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

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prevailing social and political values of a certain time. It should also be mentioned that the principle is seen as one of the core principles to comply with the principle of sustainability. 319 Here, it should be noted that the precautionary principle also follows from Article 8 of the European Convention of Human Rights (ECHR). The European Court of Human Rights (ECtHR) considers damage to the environment and the public health – due to the lack of (precautionary) measures taken to prevent this - a breach of Article 8 ECHR, concerning the right of private life. 320 Since this research does not concentrate on the aspect of damages, the focus hereinafter will be on Art. 191(2) TFEU. The Commission describes the scope of the principle in its Communication as follows: Although the precautionary principle is not explicitly mentioned in the Treaty except in the environmental field, its scope is far wider and covers those specific circumstances where scientific evidence is insufficient, inconclusive or uncertain and there are indications through preliminary objective scientific evaluation 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 chosen level of protection. 321 (Made italic by author) Its scope is thus much broader than the Treaty suggests. It is therefore even questioned whether the principle has not become a general EU principle instead of an environmental principle. 322 Craig & De Búrca already seem to apply the principle as a general EU principle, where they refer to case law of the CFI in which it (on the basis of the integration principle) states that the precautionary principle is part of environmental protection, whereby it should be integrated in all EU policies. 323 How does the precautionary principle work in practice? According to the Commission, the application of the principle should be divided into two distinct aspects: “(i) the political decision to act or not to act as such, which is linked to the factors triggering recourse to the precautionary principle; (ii) in the affirmative, how to act, i.e. the measures resulting from application of the precautionary principle.” 324 It should thus first be assessed what factors trigger the recourse to the principle. The principle only comes into play in the event of a potential risk. 325 Even if the risk is identified by a minor group within the scientific community, account should be taken thereof. 326 It is not necessary that this risk should be demonstrated or quantified. The potentially negative effects should be identified and understood. This could be done through a scientific and objective evaluation, which should include four components in the risk assessment: hazard identification, hazard characterization, appraisal of exposure and risk characterization. 327 A comprehensive assessment of the risks is not necessary if this is not possible due to limits in the scientific knowledge. The reality and extent of the risk do not have to be ‘fully’ demonstrated by conclusive scientific evidence. 328 However, a real attempt should be made and the scientific evaluation should be as complete as possible. The risk should be adequately backed up by the scientific data available. After this, the (political) decision to adopt measures (or not), necessary to protect e.g. the environment, should be made. If it seems from the scientific evaluation of the risk that it is impossible to determine the risk with sufficient certainty 319 Douma (2004), p. 5. 320 ECHR 27 January 2009, nr. 67021/01 (Tatar v. Romania). 321 Commission Communication on the precautionary principle (2000), paragraph 3. 322 Fennis (2012), p. 35; where she refers to Macrory (2004), p. 52. 323 Craig & De Búrca (2011), pp. 549-550; Case T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3305; and Joined Cases T-74, 76, 83, 85, 132, 137, 141/00 Artegodan GmbH a.o. v. Commission [2002] ECR II-4945. 324 Commission Communication on the precautionary principle (2000), paragraph 5. 325 This is later repeated/confirmed by the CJEU in Case T-13/99, Pfizer Animal Health SA v Council [2002] ECR II-03305, paragraph 142. Commission Communication on the precautionary principle (2000), p. 17. 327 Commission Communication on the precautionary principle (2000), paragraph 5.1.2. and Annex III. 328 Case T-13/99, Pfizer Animal Health SA v Council [2002] ECR II-03305, paragraph 144. 68
(due to insufficiency of data, imprecise nature, etc.), recourse should be sought to the precautionary principle. 329 Therefore, the decisive factor is the element of scientific uncertainty as to the risks involved. This is also confirmed by the Court. 330 All in all, recourse depends on three preliminary conditions: identification of potentially adverse effects, evaluation of the scientific data available and the extent of scientific uncertainty. 331 Then the second aspect comes into play: what (precautionary) measures should then result from reliance on the principle? Decision-makers have to respond to the scientific evaluation made (sometimes under pressure from the public). The response will be a political decision which should contain a “risk level that is ‘acceptable’ to the society on which the risk is imposed.” 332 The nature of the action ultimately taken by the decision-makers can vary widely. The Commission names as examples a decision to fund a research-program or even the decision to inform the public about the possible adverse effects of a product. The Court has decided hereon the following: It recalled that the competent public authorities are obliged to maintain or, as the case may be, improve the level of protection of human health even though that level does not have to be the highest possible. To satisfy that obligation, it would be for the competent authorities, applying the precautionary principle, to manage the risk exceeding the level deemed acceptable for society through measures designed to contain it at that level. (..) [T]he relaxation of preventive measures adopted previously had to be justified by new elements changing the assessment of the risk in question. (..) [I]t is only when that new level of risk exceeds the level of risk deemed acceptable for society that a breach of the precautionary principle must be found by the court. 333 From this case it seems that after taken measures, they should be kept up-to-date and should even be improved if appears necessary. The competent public authorities are under a constant obligation to manage the risks in order to maintain an acceptable risk for society and prevent a breach of the precautionary principle. Moreover, as mentioned earlier, the decisions have to comply with other general principles, such as proportionality, non-discrimination, consistency, an examination of the benefits and costs of action and lack of action (whereby it is also stated that the "[e]xamination of the pros and cons cannot be reduced to an economic cost-benefit analysis") and an examination of scientific developments. 334 The CJEU can decide on the legality of those taken measures. In general, the Court’s review will be limited if the EU institution has broad discretionary powers. The review of the CJEU should then be limited to whether “the institution committed a manifest error or misuse of power or manifestly exceed the limits of its powers of appraisal.” 335 After all, as stated by the Commission in its Communication, the precautionary principle implies a political decision. This political responsibility was also identified by national courts. 336 With regard to national measures of MS, a similar approach is taken by the CJEU: if a certain topic has been harmonised by EU legislation, the MS do not have many discretionary powers and vice versa. 337 However, the side note is made by the Commission that recourse to the principle does not mean per se that legally binding measures should be taken, subjected to judicial review. 329 Commission Communication on the precautionary principle (2000), paragraph 5.1. 330 Case C157/96 National Farmers’ Union and Others [1998] ECR I2211, paragraph 63; Case C-180/96 United Kingdom v Commission [1998] ECR I-2265, paragraph 99; and Case C236/01 Monsanto Agricoltura Italia and Others [2003] ECR I8105, paragraph 111. 331 http://europa.eu/legislation_summaries/consumers/consumer_safety/l32042_en.htm 332 Commission Communication on the precautionary principle (2000), paragraph 5.2.1. 333 Case C-601/11 P, France v Commission [2013] not yet published, paragraphs 54-55. 334 Commission Communication on the precautionary principle (2000), paragraph 6.3. 335 Commission Communication on the precautionary principle (2000), paragraph 5.2.2. This is multiple times confirmed by the Court, see e.g. Case C-601/11 P, France v Commission [2013] not yet published, paragraph 55. 336 See e.g. the German Federal Administrative Tribunal, 5.4.1989, NVwZ 1989, p.1170. 337 Case C-439/05 P C-454/05 P, Land Oberösterreich, Republic Austria v Commission [2007] ECR I-07141. 69
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Shale gas extraction: In line with
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Index 1 Introduction p. 7 1.1 Shale
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7 Conclusions and Recommendations p
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to spread in the European Union. It
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2 Context In this chapter some back
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the EU could produce more gas itsel
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minor tremors and community disrupt
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2.3.1.3 Seismicity The risk of seis
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Page 36 and 37: once, by a maximum of 6 months. A d
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Page 40 and 41: location near a sensitive area, suc
Page 42 and 43: establish an inpassingsplan. This i
Page 44 and 45: 4.6.2 Water As noted in Chapter 2,
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Page 48 and 49: 4.9 Overview problems From the anal
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Page 52 and 53: as a ground for invalidation). 211
Page 54 and 55: scale or effects of the proposed ac
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Page 60 and 61: emarkable that the CJEU also someti
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Page 66 and 67: alance conflicting policies; the me
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Page 78 and 79: application for sustainable develop
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Page 92 and 93: this zone is made available. Also,
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Page 100 and 101: national interest and an imperative
Page 102 and 103: safeguarding of the drinking water,
Page 104 and 105: • Prechal & De Leeuw (2008) S. Pr
Page 106 and 107: • Q&A on the shale gas initiative
Page 108 and 109: • Case C-117/02 Commission v Port
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