Facing the consequences of the precautionary principle in European Community law

Abstract:

This essay gauges the impact of the precautionary principle on Community decisions. To this end it reviews, first, judicial challenges of EC decisions accused of being insufficiently precautionary ("insufficient precaution" challenges) and, secondly, challenges arguing that the scrutinised decision is overly precautionary ("excessive precaution" challenges). The analysis indicates that it is prohibitively difficult for a private party to mount a successful "insufficient precaution" challenge. The positive trust-enhancing effect of the precautionary principle is negligible. The review of "excessive precaution" challenges illustrates the courts' struggle simultaneously to validate broad discretion in decision-making and guarantee the substantive quality of precautionary decisions. The essay posits that current attempts to reconcile these two objectives create confusion, and may erode the credibility of decision-making. To avert this, and to strengthen the principle's positive trust-enhancing effect, the Community must openly acknowledge the institutional empowerment that the precautionary principle entails, and devise a strategy to counterbalance it.