Arbitrary and Capricious: The Precautionary Principle in the by Gary E. Marchant, Kenneth L. Mossman

By Gary E. Marchant, Kenneth L. Mossman

This research examines how the eu Union has used the precautionary precept in criminal judgements.

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Extra info for Arbitrary and Capricious: The Precautionary Principle in the European Union Courts

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Therefore, little can be gained from scrutinizing the large number of regulatory decisions citing the precautionary principle as a justification, because almost no information or insight is provided on the principle’s meaning and significance in those decisions. Further elucidation must wait until a regulatory decision is challenged in the courts of the EU, when the EU regulators will be forced to explain and justify their decision, including any reliance on the precautionary principle. 01_4 Chapter 4 7/16**CC 8/4/04 8:26 AM Page 27 4 The European Union Courts and the Precautionary Principle: Overview Judicial decisions involving the precautionary principle are likely to provide the most informative insight into the meaning and effect of the precautionary principle.

61 Similarly, another case rejected Denmark’s reliance on the precautionary principle to adopt more stringent restrictions on food additives than the applicable EU legislation, holding that “a Member State cannot unilaterally invoke the precautionary principle in order to maintain derogating national provisions. ”65 Since the debate on any risk likewise involves concerns about the uncertainty of the risk and the need to protect public health, this statement suggests that the precautionary principle is meaningless, “adding nothing” to these standard arguments.

40 The complainant scientist, Dr. 42 As summarized by the court, Dr. 43 The EU, in defense of its action, argued that “the precautionary principle is incorporated into the concepts of safety and efficacy which have to be taken into account” by the existing regulatory approval process. In other words, the precautionary principle added nothing new to the existing regulatory criteria. The court sided with the EU, in effect giving no weight at all to the precautionary principle. 44 Under the EU regulatory scheme for genetically modified organisms (GMO) in effect at the time (the late 1990s), approval of the deliberate release of GMOs followed a two-step process.

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