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

It should be kept in mind, according to the Commissions’ Communication and the case law of the
Court, that reliance on the precautionary principle does not release the obligation to also take
account of other general principles when making measures. Here, the Commission refers to the
general principles of proportionality, non-discrimination, consistency, examination of the benefits
and costs of action or lack of action and last, the examination of scientific developments. The Court
also refers to these principles often. She assesses whether the action associated with the
protective measures is proportionate to the assumed risk. 338
With regard to the Court, it is also necessary to examine how she applies the precautionary
principle in her case law; does she apply the principle as an independent test norm or as an implicit
norm, depending on other regulation (for which the principle is the underlying objective)? 339 The
first cases in which the CJEU addresses the precautionary principle, she only assesses marginally
(due to the discretionary power of the Commission). Here, she applies the precautionary principle
as part of the proportionality test. 340 The Court does thus not apply the principle as an independent
test norm. However, in later case law, the CJEU seems to have a change of heart. In the case of
Antibiotica, the General Court discusses the precautionary principle and her boundaries broadly. 341
Also in the case of Artegodan, the Court applies the principle independently. 342 However, these
latter two cases seem exceptions to the rule; in general, the Court seems to use the precautionary
principle not as an independent test norm, but as an implicit test, depending on other regulation.
See e.g. case Monsanto in which the Court again applies the principle as an instrument of
interpretation. 343 However, in a recent case of France v Commission, the CJEU explicitly speaks of
a breach of the principle itself. 344 This again suggests a more independent application of the
principle. All in all, the case law of the court on this subject is not crystallised (yet).
The CJEU has given in the Kokkelvisserij-case her view on the principle’s substance, which has
recently been confirmed by the Court in the case of Sweetman. 345 The case concerned the
interpretation of Article 6(3) of the Habitat Directive. Here, it was questioned whether the
precautionary principle had to be taken into account when carrying out the ‘appropriate
assessment’ (which assessment is explained in Chapter 3). According to Article 6(3) an
appropriate assessment has to be carried out if there is a probability or a risk that the plan of
project in question will have significant effect on the site concerned. The Court decides that, in light
of the precautionary principle, such a risk exists “if it cannot be excluded, on the basis of objective
information, that [the plan or project] will have a significant effect on that site, either individually or
in combination with other plans or projects.” 346 Hence, in case of doubt as to the absence of
significant effects such an assessment must be carried out. This assessment should be based on
the best scientific knowledge in the field. Only where no reasonable scientific doubt remains as to
the absence of adverse effects on the integrity of the site, authorization may be granted by the
competent authority. This authorisation criterion integrates the precautionary principle. 347
338
Case C77/09, Gowan Comércio Internacional e Serviços Lda v Ministero della Salute [2010] ECR I-13533, paragraph
76; Case C333/08, Commission v France [2010] ECR I0000, paragraph 93, and the case-law cited therein.
339
Fennis (2012), p. 35 and further.
340
Case C-180/96, United Kingdom v Commission [1998] ECR I-02265, paragraphs 62-63; and Case T-199/96, Bergaderm
SA and Goupil v Commission [1998] ECR II-02805, paragraphs 65-67.
341
Case T-13/99, Pfizer Animal Health SA v Council [2002] ECR II-03305, paragraphs 136-173.
342
Case T-429/05, Artegodan GmbH v Commission [2010] ECR II-00491, paragraph 125.
343
Fennis (2012), p. 37; Cases C-58/10-C-68/10, Monsanto SAS and others v Ministre de l’Agriculture et de la Pêche
[2011] ECR I-07763, paragraph 71.
344
Case C-601/11 P, France v Commission [2013] not yet published, paragraphs 56-57.
345
Case C-127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I7405, paragraph 44; and Case C-
258/11 Sweetman and Others [2013] not yet published, paragraphs 28-41.
346
Ibid, paragraph 45.
347
Ibid, paragraphs 56-59. See also Case C127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR
I7405, paragraphs 56 to 59.
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