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Risk versus Hazard before the EU Courts – A Comment*

Published online by Cambridge University Press:  20 January 2017

Joakim Zander
Joakim Zander*
Affiliation:
EFTA Surveillance Authority, Brussels
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Extract

Professor Lofstedt presents a convincing illustration of the inconsistencies inherent in a European system of regulation where Member States choose whether to regulate based on assessments of risks or hazards depending on the product concerned. Particularly striking is the candid comment of a Swedish official who seems to marvel at the conflicting positions of his own government. The quote reminds this author of an official in the Swedish Ministry of Environment who in an interview stated that the application of regulation would be widely different if the precautionary principle as included in the Swedish Environmental Code or the precautionary principle as included in the Swedish Planning Code were to be employed.1 For a lawyer – or anyone else with an interest in the rule of law – such inconsistencies pose serious problems with regard to legal certainty. Unfortunately, those who could reasonably be expected to be most concerned with issues relating to the rule of law – national and European courts – have thus far proven reluctant to second-guess, or even criticise, decisions in the area of risk regulation.

Type
Symposium on Risk versus Hazard
Information
European Journal of Risk Regulation , Volume 2 , Issue 2 , June 2011 , pp. 205 - 208
Copyright
Copyright © Cambridge University Press 2011

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Footnotes

*

This article expresses the views of the author and does not necessarily represent the views of the organisation in which he is employed.

References

1 Zander, J., The Application of the Precautionary Principle in Practice: Comparative Dimensions (Cambridge: Cambridge University Press 2010), p. 26 CrossRefGoogle Scholar.

2 See, for example, Forsyth, C. (ed.), Judicial Review and the Constitution (Oxford and Portland, Oregon: Hart Publishing 2007)Google Scholar.

3 Case 331/88 Fedesa [1990] ECR I-4023, para. 8.

4 See, for example, Case 341/95 Gianni Bettati v. Safety Hi-Tech [1998] ECR I- 4335; Case 180/96 United Kingdom v. Commission [1998] ECR I-2265; Case T-13/99 Pfizer Animal Health SA v. Council of the European Union [2002] ECR II-3305; Case C-77/09 Gowan Comercio Internacional e Servicos v. Ministero della Sallute, judgment of 22 December 2010 (not yet reported).

5 de Sadeleer, N., “The Precautionary Principle in European Community Health and Environmental Law: Sword or Shield for the Nordic Countries?”, in de Sadeleer, N. (ed.), Implementing the Precautionary Principle – Approaches from the Nordic Countries, EU and USA (London: Earthscan 2007), pp. 10–58 Google Scholar.

6 In part it could be argued that this could be achieved by employing a version of the “hard look” doctrine employed by US courts, see Jasanoff, S., Science at the Bar (Cambridge, Massachusetts: Harvard University Press 1990)Google Scholar.

7 Communication on the Precautionary Principle, COM 2000/1.

8 Case T-13/99, supra note 4.

9 Case C-77/09, supra note 4.

10 Communication on the Precautionary Principle, supra note 7, pp. 13–14.

11 Ibid., pp. 19–20

12 See, for example, Case C-236/01 Monsanto Agricoltura Italia and Others [2003] ECR I-8105, para. 106 and Case T-13/99, supra note 4, para. 143.

13 Case T-13/99, supra note 4, para. 144.

14 Although the Communication had not been adopted at the time of the Decision in question, the aim of the Communication was partly to summarise existing practice. Thus, it would have been possible for the General Court to more firmly endorse the criteria elaborated on there.

15 Case T-13/99, supra note 4, para. 162.

16 For a critical discussion of the Pfizer judgment, see K.-H. Ladeur, “The Introduction of the Precautionary Principle into EU Law: A Pyrrhic Victory for Environmental Law? Decision-making Under Conditions of Complexity in Multi-Level Political Systems”, 40(6) CMLR (2003), p. 1455; see also G. E. Marchant and K. L. Mossman, Arbitrary and Capricious: The Precautionary Principle in the European Union Courts (Washington: American Enterprise Institute Press 2004).

17 Case T-229/04 Sweden v. Commission [2007] ECR II-2437.

18 Ibid., paras. 108–110 and 174–190.

19 Ibid., paras. 180–185.

20 For a more detailed discussion of the case, see J. Zander, The Application of the Precautionary Principle in Practice, supra note 1, pp. 114–115.

21 Case C-77/09, supra note 4.

22 Commission Directive 2006/134/EC of 11 December 2006 amending Council Directive 91/414/EEC to include fenarimol as an active substance (OJ 2003 L 349, p. 32).

23 Case C-77/09, supra note 4, para. 46.

24 Ibid., paras. 77–78.

25 For a brief discussion of the judgment, echoing some of the same sentiments discussed here, see the blog entry of Dr. Alberto Alemanno, dated 28 December 2010, available on the Internet at <http://www.albertoalemanno.eu/articles/43875> (last accessed on 31 March 2011).

26 Graham, J.D. and Wiener, J., Risk versus Risk: Tradeoffs in Protecting Health and the Environment (Cambridge, Massachusetts: Harvard University Press 1995)Google Scholar; see also R. Lofstedt, “Risk versus Hazard – How to Regulate in the 21st Century”, in this volume.