Risk management and the record of the precautionary principle in EU case law

摘要

The 'modern' approach to risk management fails with increasing scientific uncertainty. Risk regulators have responded to this difficulty by invoking the precautionary principle (PP). Under the PP, the bridge from risk assessment to risk management involves scenarios which use retrospective analyses to decide on future actions in order to avoid prospective harm. This new approach is termed 'post-modern' by some observers. In response to such 'post-modern' risks, the EU incorporated the PP into its primary law in 1992 and issued an explanatory Communication on the PP in 2000. The Communication presented five criteria that should govern precautionary actions and these criteria are now reflected in secondary laws in a number of sectors. Critically, the practical application of this body of law is being clarified through the case law of the EU courts. PP case law up to the end of 2008 is critically analysed in the light of the five criteria set out in the Commission's Communication. It is found that the first criterion (proportionality) is used effectively by the courts but that the fifth criterion (responding to the dynamics of scientific progress) is not. The paper concludes with a discussion regarding the future management of uncertain risks and the PP in the light of this case law.