The Use of the Precautionary Principle in wto law and ec law Ilona Cheyne Newcastle Law School



Download 98.58 Kb.
Page1/2
Date15.05.2016
Size98.58 Kb.
  1   2

This is a working draft. Please do not cite without permission of the author.

Comments gratefully received.


The Use of the Precautionary Principle in WTO Law and EC Law
Ilona Cheyne

Newcastle Law School

(Ilona.Cheyne@ncl.ac.uk)

Introduction


The precautionary principle is one of the great puzzles of international law. It is designed to promote environmental protection by excluding scientific uncertainty as a justification for delaying action in the face of potentially serious threats to the environment. It is the subject of voluminous literature, which ranges across the spectrum from those that argue that it imposes a positive obligation to act as soon as a plausible threat is identified to those that maintain that it is not a legal principle at all but only a policy guideline to be taken into account along with many other policy factors.1 In between is a growing understanding of how the principle might have legal effect, and an impressive number of international instruments containing or implementing the principle including the EC Treaty. In addition, the power of the precautionary principle is such that it has proven impossible to ignore even by institutions that do not explicitly recognise it, such as the WTO.2 At first glance, the positions of the WTO and the EC seem very different but there appears to be an interesting degree of convergence between their approaches in practice. The purpose of this paper is to consider how that convergence could have come about notwithstanding the very different starting points in each regime, and to consider the implications for the future.

The Precautionary Principle and Free Trade


The most well-known example of the precautionary principle in its general form is that contained in Principle 19 of the Rio Declaration which states,

In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.


It has been restated in many different ways, but in international instruments at least it has rarely strayed far from the path laid down in the Rio Declaration.3
Despite the ambiguity of its wording and the difficulty of precisely ascertaining its legal implications, it is clear that that the precautionary principle has been frequently used and with practical and normative effect. It is a cornerstone of the sustainable development approach and its importance in environmental law and policy is undoubted. However, its influence in the area of trade law is particularly interesting. The principle is intended to bridge the regulatory gap between economic development, social justice and environmental protection. In the context of trade law, it is subject to the trade liberalisation rules contained in the WTO Agreement and, in the European context, the law of the European Community. These rules are strikingly similar. For example, Article 28 (ex 30) of the EC Treaty prohibits quantitative restrictions on imports and all measures having equivalent effect. This has been defined all-inclusively by the Court of Justice as “all trading rules enacted by member states which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade” between Member States.4 The same sort of prohibition against discrimination is contained in Articles XI, I and III of the GATT. Article XI is a blanket prohibition of quantitative restrictions on imports and exports. Article I is the most-favoured-nation clause which prohibits discrimination between like products from different importing countries. Article III is a more complex provision which prohibits discrimination between imported and domestically produced like products. Article III:4, which is of most relevance to the present discussion, provides that imported products must not be given less favourable treatment than like domestic products once they are in the domestic market.5 Both systems provide for general exceptions, including the protection of human, animal or plant life or health.6 Article XX(g) of the GATT 1994 also permits measures relating to conservation of exhaustible natural resources. Both systems have a requirement that any measure which otherwise falls within one of the given exceptions must not constitute arbitrary or unjustifiable discrimination.7
Disputes about quantitative restrictions such as import bans are relatively simple in legal terms and rarely give rise to analysis even in contested disputes. By contrast, analytical problems often arise where discrimination is claimed between “like products” since there are many reasons why a State might wish to differentiate between products which are otherwise similar, such as concern for the environment. Both WTO and EC tribunals have had to deal with the fact that there may be legitimate reasons for restrictions on particular types of goods or that it is appropriate to discriminate between products which for commercial purposes appear to be the same. Concern about balancing trade liberalisation rules and environmental protection has therefore been a common feature of the WTO and EC regimes.
In the case of the WTO, the alarm was first raised by the two famous Tuna Dolphin reports decided by panels under the GATT 1947 system.8 Despite the fact that they were not adopted and therefore had no formal effect, the reports were released to the public to be met by sustained and vitriolic criticism from environmental groups and commentators. This ‘wake-up call’ for environmentalists came too late to have much influence on the Uruguay Round negotiations and the WTO Agreement reflects very little explicit recognition of the need to give weight to environmental values or interests beyond that already contained in the GATT 1947.9 In contrast, similar concerns in the EC led to the Court of Justice developing the “rule of reason” which allows Member States to introduce restrictions to protect essential interests, provided they are not applied in a discriminatory manner and there is no exhaustive Community harmonisation measure already in place.10 Eventually an explicit environmental policy was introduced into the EC Treaty and the precautionary principle introduced.11 Regardless of their different starting points, however, both WTO and EC formal dispute settlement decisions have proved to be crucial in determining the balance between the trade liberalisation rules and unilateral attempts to protect the environment.

The Use of the Precautionary Principle in EC Law


(i) the meaning of the precautionary principle in EC law
It has already been noted that the EC Treaty explicitly includes the precautionary principle as part of its environmental policy. The Court of Justice therefore has little trouble in establishing why it should apply the principle, and need only seek to explain how it is applying it. It has offered some guidance on the circumstances in which the precautionary principle may apply. The threshold of risk that is required before action can be justified must not be a “purely hypothetical” risk, nor may it be founded on “mere suppositions not yet scientifically verified”.12 It must be “adequately backed up by the scientific data available at the time”.13 Provided that this sort of level of objectivity can be shown with regard to potential risk, however, it is not necessary to wait “until the reality and seriousness of those risks become fully apparent”.14
The Court of First Instance (CFI) has gone on to elaborate its view as to the appropriate application of the principle. It has stated that there are two stages that must be fulfilled. First, the Community institution must choose the level of protection it considers acceptable, in the light not just of scientific evidence but other social, political or other factors.15 In other words, it is a political decision which must be decided according to the circumstances of each individual situation and in the context of the Community’s needs and interests. This discretion to choose lies at the heart of the question of how the precautionary principle is to work. The limits of the discretion give us the boundaries of judicial review, the shift from political choices to legally enforceable standards. The Court has given very little guidance on this point, however, and as far as Community institutions are concerned, judicial review is limited to procedural and administrative guarantees.16 It has said that the risk must not be hypothetical, that the level of protection chosen as acceptable must not be based on a desire for zero risk and that, although the level of protection must be high under the EC Treaty, it does not have to be highest technically possible.17 However, this discretionary power has also been limited by later findings that the combination of the precautionary principle, the high level of protection required, and the integration of that high level of protection into other policies requires that the protection of human health takes precedence over economic interests.18
The second stage identified by the CFI is the risk assessment that must be made by the Community institution before it decides what measures are necessary in order to achieve the level of protection it has chosen. Here the objective is to find out as much as is possible about the hazard, the exposure to that hazard, and the kind of risk it poses to human health.19 This stage partly overlaps the first, in that the identification of the threshold of risk that triggers the precautionary principle must be based on scientific evidence even if it is incomplete, but it also adds another layer which is that the measure chosen must be proportionate to the risk.20 The Court has described this requirement by saying that the measure must be necessary, proportional to the objective pursued, and the least trade-restrictive measure available.21 In other words, it must be possible to show not only that the risk is a real one even if uncertain but also that the response has a rational relationship to that risk and interferes as little as possible with the operation of other values and interests such as free movement of goods.
The two-stage analysis described above has also been applied to the acts of Member States. They may exercise their own discretion subject to the condition that the level of protection chosen cannot be based on a purely hypothetical risk.22 The choice of measure is also subject to the need to perform a risk assessment and to ensure that the measure chosen is proportionate to the level of protection being pursued.23 However, there may be another barrier to be crossed. The right to choose individual levels of protection may be excluded by exhaustive Community harmonisation in the field.24 In such a case, the level of protection would have been decided as a Community matter and the right of Member States to set different standards would be extinguished by the operation of Article 28 prohibiting measures which hindered intra-Community trade. Their only recourse would be to the exceptions contained in Article 30.

(ii) the precautionary principle as an interpretative tool


The Court has used the precautionary principle as an interpretative tool to quite surprising effect. For example, in Case T-147/00, Les Laboratoires Servier v Commission,25 the CFI interpreted a provision requiring proof that a medicinal product was harmful before its marketing authorisation could be suspended or revoked to mean that the competent authorities were obliged to withdraw authorisation where there were “reasonable doubts” about the safety or efficacy of the medicine.26 In Monsanto,27 the regulation in question was aimed at protecting human health and laid down a “substantial equivalence” test for novel foods being introduced into the market. The Court added another condition based on the precautionary principle, namely that the substantial equivalence test could not be used where there was a potential risk to human health from the novel food. In Waddenzee, 28 the provision in question was contained in the Habitats Directive and it required public authorities to withhold authorisation of plans or projects which might have a significant effect on the environment until they had ascertained that it would “not adversely affect the integrity of the site concerned”.29 Using the precautionary principle, the Court read this to mean that the public authority must “make sure” or be “convinced” that no adverse effects will occur.30 Authorisation must be refused where “doubt remains as to the absence of adverse effects”.31 It can only be given where “no reasonable scientific doubt remains as to the absence of such effects”.32 This is a very strong interpretation of the precautionary principle in action. In a recent case on treatment of urban wastewater, the Court held that Member States could not rely on scientific uncertainty in deciding what areas of water should be designated as sensitive for the purposes of preventing eutrophication,33 but should instead by guided by the precautionary principle which required environmental protection measures to be taken where there was a sufficient degree of probability that inputs of nutrients into the water would lead to eutrophication.34
Finally, the interpretation of the Framework Waste Directive35 gives a number of examples of how the definition of waste is affected by the use of the precautionary principle. Waste is defined in the Directive as anything which falls in a list contained in Annex I36 and which is discarded. This has given rise to numerous problems, particularly in the case of recycled materials, because the meaning of “discard” is not itself defined.37 In Van de Walle,38 the problem was a leak of petroleum into land. The Court held, as it had done earlier, that the meaning of the term “discard” could not be interpreted restrictively because the Directive was intended to protect the environment and in particular the precautionary principle.39 The Court found that discarding could include accidental leakage and therefore the leaked hydrocarbons were waste. This is perhaps not very controversial, but the Court went on to find that the soil that had been contaminated by the leaked hydrocarbons was also classified as waste. This could not be explained by any normal meaning of “discard”, and could only by justified by reference to the objective of the Directive to protect the environment and in particular to implement the precautionary principle.
It is clear that the effect of the precautionary principle in EC law has been significant and even surprising. The next question is how the precautionary principle plays out in WTO law.

The Use of the Precautionary Principle in WTO Law


The WTO has faced the same tensions as the EC over the effect of trade rules and the preservation of internal autonomy over national policies, and about finding an appropriate balance between trade liberalisation objectives and environmental protection measures. Institutionally, the Committee on Trade and Environment has the role of working through these tensions but has so far had limited success due to the intractability of reconciling widely differing views and interests.40 In practice, therefore, disputes which arise from these tensions are often resolved by panels and then by appeal to the Appellate Body. There is a distinct difference between the approaches used by panels and the Appellate Body.41 The former have tended to favour trade liberalisation objectives and to reject any measures which they perceive to threaten the security and stability of the multilateral trading system.42 The Appellate Body has shown itself to be more sensitive to the need to accommodate ‘external’ values, and the resulting jurisprudence signposts how and in what circumstances the precautionary principle might be applied in the context of the WTO Agreement. For the time being, this case law has centred around the application of Article III:4 (prohibiting less favourable treatment of imported products as against domestic like products), Article XX (b) (making an exception for measures necessary to protect human, animal or plant life or health), Article XX(g) (making exception for measures relating to the conservation of exhaustible natural resources), and the SPS (regulating the use of sanitary and phytosanitary standards). The following discussion will focus on three landmark cases illustrating the Appellate Body’s approach and its normative implications for the application of the precautionary principle.

(i) the Asbestos case43


The Asbestos case concerned a French measure which prohibited the sale or use of asbestos and asbestos-containing materials. The measure was intended to eliminate disease caused by exposure to those materials. It did, however, permit the use of non-asbestos materials which served the same purpose of fire resistance and which also posed a risk to human health, albeit less serious. Canada brought a complaint on the grounds, inter alia, that the French measure violated Article III:4 by discriminating between like products.44 It argued that all fire-retarding materials should be treated as ‘like’ for this purpose. The established criteria for evaluating likeness are the property, nature and quality of the products, their end-uses, consumers’ tastes and habits, and tariff classification.45 The Panel, however, focused on the competitive relationship between the products and, because they all performed the same sort of function, it found that discrimination between them constituted a violation of Article III:4. The Panel concentrated on the similarities between the products in terms of their properties, nature and quality. Most importantly it declined to consider risk to human health or consumer tastes and habits. The Appellate Body, on the other hand, took a more measured approach which encompassed a wider range of considerations. It is interesting to note that it did not suggest a change in the criteria. The problem was that the Panel had only given weight to market access, application and substitutability, and had subsumed the test of end-use into this analysis.46
The Appellate Body accepted the idea that there must be a competitive relationship but not that it should be the overriding consideration. It insisted that all the evidence should be weighed in the light of all the criteria. This approach identified two points that are of particular relevance to the question of whether the precautionary principle could be applied when determining whether products were like. First, it found that difference in physical properties could include the capacity to pose a threat to human health. Second, it found that consumer tastes and habits could be determinative, and risk to human health might well be a factor in the way in which consumers approached a product.
The interesting aspect of this approach, as far as the precautionary principle is concerned, is that the Appellate Body was prepared to expand its examination beyond the purely commercial aspects of a competitive relationship. As noted above, there must be a competitive relationship otherwise there can be no likeness for the purpose of Article III:4. However, the inclusion of risk to human health as a factor and the emphasis on taking account of consumer preferences suggest that it might be possible to introduce a precautionary approach.47 The Appellate Body made it clear that the criteria of likeness were only tools and were subject to possible change, but the strength of its approach is that each criteria and all the evidence should be considered. Thus one would expect that entirely irrational risks not supported by any objective evidence would be excluded whereas a fear based on scientific evidence or principles, even if uncertain, could be used under the criteria to show that it was not unreasonable to differentiate between two types of product even though commercially they were usually treated in the same way.48 In this case, the Appellate Body did not impose a formal test of objectivity, but it did review a considerable body of evidence which satisfied it as to the danger to health posed by asbestos and asbestos-containing materials.
Although the Panel in the Asbestos case found that the French measure had violated Article III:4 but was excused by virtue of Article XX(b), and the Appellate Body had already found that the measure had not been shown to violate Article III:4, the Appellate Body considered it necessary to analyse the application of Article XX in the circumstances of the case. Article XX(b) permits measures which are “necessary to protect human, animal or plant life or health”. The first point that has to be decided is whether the measure is aimed at a policy protected by the paragraph. In the case of asbestos, it was accepted that there was a risk of a “very serious nature” and the French measure was clearly designed to protect human health. However, there remained the question of how strongly a Member State could protect human health. The Appellate Body accepted that Member States could choose their own level of protection according to their own circumstances.49 In this particular case, France had chosen to eliminate the risk of asbestos-related disease. The consequences of this reasoning was that the measure could be considered necessary if it achieved the level of protection chosen, and in this case the objective of eliminating asbestos-related disease justified the outright ban of asbestos and asbestos-containing materials. The Canadian suggestion of controlled use as an alternative would not suffice. It would achieve some reduction in asbestos-related disease but it would not come up the required level of elimination. The Appellate Body did not require any particular standard of objective evidence, although it did review the scientific arguments and its analysis therefore implies the need for some objective justification for a unilaterally chosen level of protection. The implications of this finding is that it would be possible to choose a level of protection based on a precautionary approach, because there is no absolute requirement of scientific justification beyond some objective support. Once that level of protection has been chosen, the next hurdle is one of proportionality, in this case to show that the measure is necessary. The test for this is whether the measure is the least trade-restrictive reasonably available and proportionate to the objective it is attempting to achieve. Thus, the key test in Article XX(b) is the proportionality of the measure related to the stated objective and there is comparatively little constraint on the setting of the level of protection.

(ii) the Shrimp case50


The Shrimp case concerned a US import ban on shrimp caught in nets without devices to allow turtles to escape. This was a straightforward quantitative restriction which violated Article XI. The only question was whether it could be saved under Article XX(g) as a measure relating to the conservation of exhaustible natural resources51 and, if so, whether it could also satisfy the condition in the chapeau of Article XX that it must not constitute arbitrary or unjustifiable discrimination or a disguised trade restriction. The Panel found that the US measure constituted unjustifiable discrimination under the chapeau largely because to allow unilateral conditions to impede market access would undermine the multilateral trading system.52 The Appellate Body reversed this finding and, in so doing, raised a number of questions about the relationship between the WTO trade regime and environmental law, including the precautionary principle.
The first question was whether the term “exhaustible natural resources” was intended only to refer to non-renewable resources such as minerals, or whether it could include animal species. In previous case law, the phrase has been interpreted liberally to include non-endangered species53 and clean air.54 In the Shrimp case, the turtles in question were recognised as being endangered. There are many good arguments for an interpretation which excludes renewable resources, not least of which is the argument that to make the phrase cover all resources, whether renewable or non-renewable, renders the word “exhaustible” superfluous. There is also some evidence from the drafting history of Article XX that it had been intended to refer to non-renewable resources such as minerals. However, the Appellate Body chose to take a modern view, one which recognised the validity of environmental concerns. It did so by adopting a particular interpretative technique which allows the meaning of terms in a treaty to evolve rather than relying on the meaning of the member States at the time of drafting. This was buttressed by a reference in the preamble of the WTO Agreement to sustainable development which provided evidence that the drafters of the WTO Agreement intended the term “exhaustible” to be interpreted in the light of contemporary concerns about conservation.55 Even more importantly, the idea that the term exhaustible could be interpreted in an evolutionary fashion meant that the Appellate Body was entitled to refer to state practice outside the WTO.56 Although the precautionary principle was not specifically mentioned, this approach to treaty interpretation has obvious normative implications for its application. Indeed, it is arguable that the reasoning in Shrimp has the effect of applying the precautionary principle since it allowed the accommodation of modern concerns about potential threats to species and uncertainty about the implications of their extinction to humans and the environment in general.57
The second aspect of Article XX(g) which is relevant to the precautionary principle is the condition that the measure must relate to conservation. Early jurisprudence took the view that this should be interpreted narrowly, and unilateral measures designed to promote conservation were not accepted because they were indirect.58 The Appellate Body has now reasserted the normal meaning of the words and requires only that there is a “substantial relationship” which is not “merely incidentally or inadvertently aimed” at conservation.59 In Shrimp, they described it as a “close and genuine relationship between ends and means”.60 This test focuses more on the problem of avoiding disguised protectionism than insisting on the least trade-restrictive effect as is the case when applying the condition of “necessary” in Article XX(b). It also says nothing about the level of protection chosen or the risk identified which constitutes the objective of the measure. One would reasonably expect some objective evidence that conservation is the intention behind the measure, but beyond that, the condition of “relating to” is not restrictive. In the particular case of Shrimp, the Appellate Body accepted that the US measure was designed to influence other States to change their environmental policies but since it was specifically aimed at its stated objective and allowed the importation of shrimp under reasonable circumstances, it satisfied the proportionality test.61
Finally, having found that the US measure satisfied the conditions of paragraph (g), the Appellate Body considered the application of the chapeau. The test here was whether the measure constituted arbitrary or unjustifiable discrimination or a disguised restriction on trade. The most relevant part of the Appellate Body’s reasoning for the application of the precautionary principle concerns its analysis of unjustifiable discrimination. It pointed out that there was no definition of unjustifiability within the GATT but that it had to be more than a mere violation of another provision since Article XX was designed to provide exceptions to the normal rules. It was important to determine what the Member States considered to be unjustifiable and for that it was necessary to examine state practice outside the WTO. The interpretation of the term could also be coloured by the reference to sustainable development in the Preamble to the WTO Agreement. In fact, the US measure was found to be unjustifiably discriminatory because, inter alia, it required other countries to adopt exactly the same methods for conserving turtles rather than allowing them to use equivalent alternative methods. For the purposes of considering the precautionary principle, however, the Appellate Body’s reasoning again has significant normative implications. It locates the meaning of justifiability in state practice and more, that state practice is to be judged in the light of sustainable development and contemporary environmental concerns. This appears to allow the use of the precautionary principle as a guide to legitimate environmental policies not only under paragraph (g), but also to whether any resulting discrimination is justifiable or not.62

(iii) the Hormones case63


The dispute in Hormones arose because of an import ban imposed by the EC on the importation of meat and meat products from animals treated with growth-promoting hormones. The case has been extensively commented on because it is the only case in which the precautionary principle has been explicitly discussed, but it is of limited use to our understanding of the wider application of the precautionary principle in WTO law. The dispute was decided under the SPS Agreement which is designed to elaborate upon the meaning of Article XX(b) of the GATT.64 The SPS provides for the right to take measures to protect human, animal or plant life or health, but only in so far as they are necessary, based on scientific principles, and are not maintained if there is insufficient evidence.65 Member States are encouraged to adopt international standards by the fact that national standards that conform with international standards are deemed to be necessary for the protection of human, animal or plant life or health.66 However, Article 3.3 permits Member States to introduce measures which give a higher level of protection than would be provided by international standards if there is scientific justification for doing so, or if the higher level of protection can be justified according to the conditions contained in Article 5.1-8. Article 5.1 requires that national measures be based on a risk assessment taking account of risk assessment techniques developed by relevant international organisations, and Article 5.2 requires the risk assessment to take into account, inter alia, available scientific evidence. The emphasis is on objective evidence justifying such cases. However, Article 5.7 provides that in cases where there is insufficient scientific evidence, it is possible for Member States to introduce provisional measures provided that they are based on what relevant information is available and that the Member State seeks to obtain the necessary additional information to be able to make a more objective assessment. This re-assessment must occur within a reasonable period of time.67
The EC argued that it was entitled to set its own level of protection by reference to the precautionary principle and that it was a constituent part of the risk assessment required in order to set a higher standard of protection than internationally agreed. The Panel, however, found that the precautionary principle only applied to provisional measures and, whether it was a principle of international customary law or not,68 it could not override the wording of Article 5.1 and 2 which required measures pursuing a higher level of protection to be based on risk assessment and scientific and other objective evidence. The Appellate Body agreed with this analysis. It pointed out that the precautionary principle had not been written into the SPS Agreement as an exception. It was however reflected in the wording of Article 5.7 permitting provisional measures in cases where there was insufficient scientific evidence to enable a more objective risk assessment. It added that the precautionary principle was also reflected in the preamble and in Article 3.3 permitting Member States to impose a higher level of protection than contained in international standards. Thus a Member State could base its decision to seek a higher level of protection on the need to be cautious. But measures designed to provide a higher level of protection than normal still had to satisfy the requirements of Article 5.1-2.69 The precautionary principle could not be used to change the clear meaning of the provisions concerning the need for risk assessment and scientific and other objective evidence.70 Since the EC explicitly excluded reliance on the right to introduce provisional measures under Article 5.7, it was bound by the obligation to provide an objective risk assessment based on available scientific evidence.
This case is interesting because of its explicit discussion of the precautionary principle but ironically it is the least useful of the three cases analysed here because it finds only that there is a lex specialis applicable in cases where a more general version of the precautionary principle might have applied. Arguably, a more fruitful subject for analysis would have been the relationship between the right to choose a higher level of protection than normal under Article 3.3 and the risk assessment to be carried out under Article 5.1.

Conclusion


At this stage, I can only make some preliminary remarks on the application of the precautionary principle in WTO and EC law. The difficulty of comparing the common experiences of these institutions has been noted elsewhere.71 The institutional and legal frameworks share a common goal of trade liberalisation but otherwise they are very different. The legislative and enforcement powers of the Community institutions are an obvious example, as is the high ranking of non-trade policies in the Community legal order. For the purposes of this paper, a fundamental difference appears to be the explicit incorporation of the precautionary principle in the EC Treaty, whereas the WTO Agreement has no such provision other than a rather indirect and limited equivalent in the SPS Agreement. Thus the EC experience with the precautionary principle is much richer because of the comparative frequency with which the Court has been asked to consider the matter, and the variety of situations in which the precautionary principle may be relevant. The consequence, as one leading commentator has put it, is that the precautionary principle in EC law has become “a tool to frame and discipline decision-making”.72 In the WTO context, it is a principle viewed with suspicion and possessing uncertain normative force.
However, on examination of the case law in both institutions, it is apparent that there is a rather high degree of convergence in practice. As one might expect, neither legal regime defines the meaning of the precautionary principle, but nonetheless there is a significant degree of overlap in approach. The Court’s insistence that there must be more than a “hypothetical risk” before the precautionary principle is engaged is broadly the same as the Appellate Body’s refusal to accept “theoretical uncertainty” as the kind of risk that can be assessed under Article 5.1 of the SPS Agreement.73
The Court of Justice has placed a higher value on human health than economic interests. This approach is echoed by the Appellate Body in Asbestos when it included risks to human health as part of the test of like products, not just in considering physical properties but also in the context of consumer preference between competing products in the market. In addition, the Appellate Body has indicated that the importance of an interest will have an effect on the question of whether a measure is necessary under Article XX(b).74 This is perhaps technically a point about proportionality, but it has an overlap with the question It did, however, insist that all the evidence should be weighed in the light of all the criteria. of precaution. Finally, the Appellate Body and GATT panels have accepted a very broad interpretation of the meaning of exhaustible natural resources. In the case of Shrimp, the Appellate Body supported this broad interpretation by reference to the need to ensure sustainable development. Arguably, this is another example of using the importance of environmental protection to trump more narrow commercial interests and an echo of the approach that has been developed in EC law.
The Court of Justice has also established that there should be two stages in making decisions in situations of uncertainty. The first stage is that of choosing an acceptable level of protection and this is interesting not least because this choice will be based on political as well as scientific considerations. The second stage is that of the risk assessment which is designed to gain whatever objective information is available, even though there may be very little. The measure chosen must be proportionate, and this is gauged against the level of protection adopted, the information gained in the risk assessment, and its evaluation. An early example of this kind of reasoning can be seen in the famous Danish Bottles case,75 and more recently in Pfizer76 and Commission v Denmark77. Again, this approach is echoed by the Appellate Body in Asbestos, and in Hormones.78 In the former, France was permitted to choose its level of protection, that is the elimination of a disease, without any serious consideration of the legitimacy of that choice other than a rather perfunctory investigation to ensure that there was some sort of objective basis behind it. However, in the analysis of whether the prohibition on sale or use in that case was necessary, it cannot be denied that the scientific evidence was an important part of the Appellate Body’s evaluation of the legality of the French measure. The two stages are perhaps more obvious in the application of the formal requirements of the SPS Agreement in Hormones, where the Appellate Body recognised that a precautionary approach could be taken under Article 3.3 of the SPS Agreement in order to impose a higher level of protection than normal but that the resulting measure must be contingent upon a risk assessment based on scientific evidence as required under Article 5.1-2. The requirement of proportionality as a brake on the implementation of the precautionary principle is therefore common to the EC and WTO legal regimes, although its application in situations of scientific uncertainty must surely be inherently problematic.
Both the Court of Justice and the Appellate Body have also insisted that any risk assessment is specific and properly conducted. For example, the Court of Justice made this requirement clear in Monsanto,79 and the Appellate Body in Hormones.80 Although Article 5.7 allows provisional measures without a full risk assessment, the Appellate Body has insisted on giving the article a narrow interpretation. It has enforced the condition that there must be insufficient scientific evidence before it can apply,81 and that a Member State which has introduced a provision measure under this provision must seek additional information and review the measure within a reasonable period of time.82
The area of practice where it is more difficult to see common approaches is where the Court of Justice has evaluated Community measures or interpreted legislation. There is no exact parallel in the WTO.83 However, it may be possible to see some convergence of approach in the Appellate Body’s reasoning in Shrimp. When it considered the question of unjustifiable discrimination, the Appellate Body looked to the preamble of the WTO Agreement which included the reference to sustainable development. It also looked to state practice outside the WTO Agreement in order to find the meaning of a GATT provision, namely the chapeau of Article XX. This is not unlike the use of the Basel Convention reference by the Court of Justice to support its finding in the Wallonian Waste case that waste should be treated as a special case under the free movement of goods rules.84 In the specific examples of EC cases where the precautionary principle has been considered, it can be seen that the principle has been used to produce some far-reaching results while interpreting Community legislation based on little more than a statement that the legislation was intended to implement or was based on the precautionary principle. So, for example, procedures for the authorisation of novel foods could be changed,85 or the definition of waste extended far beyond the normal wording of the provision in question.86
This brings us to one of the fundamental points about the common experience of the EC and the WTO, namely the question of positive and negative harmonisation. Both institutions have pursued negative harmonisation in the sense of trying to reduce or eliminate trade barriers. The EC has also pursued an active agenda of positive harmonisation, including common technical standards and protection of non-trade values. The closest that the WTO has come to positive harmonisation has been covered agreements such as the SPS Agreement, which may incorporate external standards by reference.87 But not too much reliance should be placed on this as a difference, for two sets of reasons. First, positive harmonisation in the EC is rather more incomplete and flexible than might first appear.88 Second, positive harmonisation that excludes individual Member State acts simply has the effect of changing the bottom line. True, it may protect non-trade values and thus has a significant difference compared with the substantive legal environment of the WTO. In the case of the EC, of course, the development of the rule of reason by the Court of Justice has also given a unique slant to the question of harmonisation and the accommodation of regulatory differences. However, in other ways, exhaustive harmonisation puts the Member States in the same position as if there were no such harmonisation. They can only rely on the limited exceptions contained in Article 30, in the same way that Member States of the WTO can only rely upon the limited exceptions in Article XX. In principle, therefore, the normal rules of free trade will continue to be applied.
Thus it appears that there is very little philosophical difference between the approaches of the EC and the WTO to the application of the precautionary principle, although the Appellate Body is clearly less free to apply it in the absence of explicit incorporation by the Member States into the WTO Agreement. But this functional difference should perhaps also be considered less important than it first appears. The experience of both institutions with the precautionary principle suggests that it is far more powerful in the interpretation and application of trade law than one might have expected, and that the fact that both the ECJ and the Appellate Body have been forced to engage with it has revealed a surprising degree of convergence in seeking the solution of trade-environment disputes.


1 General works include Arie Trouwborst, Evolution and Status of the Precautionary Principle on International Law (New York: Kluwer Law International, 2002); Poul Harremoës (ed.) The Precautionary Principle in the 20th century : late lessons from early warnings (London: Earthscan Publications, 2002); Tim O'Riordan, James Cameron & Andrew Jordan (eds), Reinterpreting the Precautionary Principle (London: Cameron May, 2001); Ronnie Harding, Elizabeth Fisher (eds), Perspectives on the Precautionary Principle (Annandale, N.S.W.: Federation Press, 1999); Timothy O'Riordan and Andrew Jordan, The Precautionary Principle, Science, Politics and Ethics (Norwich: Centre for Social and Economic Research on the Global Environment, 1995); David Freestone and Ellen Hey, The Precautionary Principle and International Law: the challenge of implementation (Boston: Kluwer Law International, 1995); Harald Hohmann, Precautionary Legal Duties and Principles of Modern International Environmental Law (London; Graham & Trotman/Martinus Nijhoff 1994); Tim O'Riordan and James Cameron (eds), Interpreting the Precautionary Principle (London: Earthscan Publications Ltd., 1994)

2 The WTO Agreement was concluded in 1994 and came into force at the beginning of 1995. It comprises a large number of agreements of which the most relevant for this paper are GATT 1994 and the Sanitary and Phytosanitary Agreement. GATT 1994 is so called to differentiate it from the original GATT, now referred to as GATT 1947, but the two versions are to all intents and purposes the same. Every Member of the WTO is bound by all the agreements contained in the WTO Agreement with a limited number of exceptions which are not relevant to the discussion in this paper.

3 The most common reason for alteration is where it is being implemented in a specific context, for example, in Article 3(2) of the Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992:

“The Contracting Parties shall apply the precautionary principle, i.e., to take preventive measures when there is reason to assume that substances or energy introduced, directly or indirectly, into the marine environment may create hazards to human health, harm living resources and marine ecosystems, damage amenities or interfere with other legitimate.”



4 Case 8-74, Procureur du Roi v Benoit and Gustave Dassonville [1974] ECR 837, para. 5.

5 The full text of Article III:4 reads:

“The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use. The provisions of this paragraph shall not prevent the application of differential internal transportation charges which are based exclusively on the economic operation of the means of transport and not on the nationality of the product.”



6 EC Treaty, Article 30 (ex36) which allows measures that are “justified”; GATT 1994, Article XX(b) which allows measures that are “necessary”.

7 EC Treaty, Article 30; GATT 1994, Article XX chapeau.

8 US - Restrictions on the Import of Tuna, BISD 39S/155; US - Restrictions on the Import of Tuna, BISD 39S/155.

9 The same cannot be said of the North American Free Trade Agreement (NAFTA) 1992 which was significantly influenced by environmental lobbying to ensure that environmental interests were not ignored. The result includes Article 104 which allows other specified treaties to prevail over NAFTA provisions, including the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the Montreal Protocol on Substances that Deplete the Ozone Layer, and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. An environmental side agreement was later signed, the North American Agreement on Environmental Cooperation (NAAEC), which came into force on January 1, 1994.

10 Case 120/78, Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (the Cassis de Dijon case) [1979] ECR 649. Environmental protection was found to be one of the Community’s “essential objectives” and could justify national measures under the rule of reason in Case 240/83 ADBHU [1985] ECR 531. It was also held to be a mandatory requirement in Case 302/86, Commission v Denmark (Danish Bottles case) [1989] 1 CMLR 619.

11 The Single European Act of 1986 introduced a new title relating to the protection of the environment; a “policy in the sphere of the environment” was introduced as a key activity of the Community and the precautionary principle into what is now Article 174(2) by the Maastricht Treaty in 1992. The full text of Article 174(2), first paragraph, reads:

“Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.”




12 Case 236/01, Monsanto [2003] ECR I-08105, para. 106; Case E-3/00, EFTA Surveillance Authority v Norway EFTA Court Reports 2000-20001, p. 73, paras. 36-38.

13 Case T-13/99, Pfizer v Council [2002] ECR II-03305.

14 Joined Cases T-74/00 etc., Artegodan [2002] ECR II-4945, para. 185, and Pfizer, n.13 above, para. 139. See previously Case C-180/96 United Kingdom v Commission [1998] ECR I-2265, para. 99, (the BSE judgment), Case T-199/96 Bergaderm and Goupil v Commission [1998] ECR II-2805, para. 66.

15 Pfizer, n.13 above, paras. 151-153.

16 In cases where Community institutions enjoy a broad discretion with regard to objectives and methods, judicial review is limited to examining whether there has been has been “manifest error or a misuse of powers” or that the Community institutions have “clearly exceeded the bounds of their discretion”. In addition, where Community institutions are “required to make complex assessments” judicial review must be limited. See Pfizer, paras. 166-169.

17 Para. 152, citing Case C-284/95, Safety Hi-Tech 1998 ECR I-4301, para. 49.

18 Artegodan, n.14 above, paras. 183-184.

19 Paras. 154-156. Shortly after Pfizer, the Court was asked to rule on the validity of the Community’s test for the release of foodstuffs containing transgenic proteins under the Regulation 258/97 on novel foods and novel food ingredients, OJ 1997 L 43/1 as amended by EC Regulation 1829/2003 on genetically modified food and feed, OJ 2003 L 268/1, which replaces the former with regard to authorisations and labelling of GM food. It found that the simplified procedure for foodstuffs could be applied to food even if it contained transgenic proteins where it was “substantially equivalent” provided that there was no scientific evidence of any risk to human health. That is to say, the substantial equivalence concept is not intended to replace a safety assessment, but only provides an approach to determine whether a safety assessment is required. It identifies hazards, i.e. potential dangers, which may then require a risk assessment. Thus mere physical differences will not be sufficient to exclude substantial equivalence but a risk to human health will do so. See Monsanto, n.12 above.

20 Artegodan, n.14, para 185, citing Case C-180/96 United Kingdom v Commission, n.14 above, para. 99; Case C-157/96 National Farmers' Union and Others [1998] ECR I-2211, para. 66.

21 Case C-192/01, Commission v Denmark, [2003] ECR I-9693, para. 42-45. Followed in Case C-24/00, Commission v France, 5 February 2004, nyr, paras. 49-52; Case C-95/01, Criminal Proceedings against Greenham and Abel, 5 February 2004, nyr, paras. 37-39.

22 See, for example, Case C-463/01, Commission v Germany, 14 December 2004, nyr, para. 74; Case C-192/01, Commission v Denmark, [2003] ECR I-9693; Case C-121/00, Criminal Proceedings against Walter Hahn [2002] ECR I-09193; Case C-286/02, Bellio F.lli Srl v Prefettura di Treviso, 1 April 2004, nyr.

23 Bellio, n.22 above; Greenham, n.21 above.

24 For a discussion of the difficulty in establishing when Community harmonisation is exhaustive and the practice of allowing safeguards and other flexibilities into Community legislation, see Joanne Scott, “International Trade and Environmental Governance: Relating Rules (And Standards) in the EU and the WTO” 15 EJIL (2004) 15.

25 [2003] ECR II-00085.

26 Article 11 of Council Directive 65/65 on the approximation of provisions laid down by law, regulation or administrative action relating to medicinal products, amended by Council Directive 83/570/EEC of 26 October 1983 (OJ 1983 L 332, p. 1) and Council Directive 93/39/EEC of 14 June 1993 (OJ 1993 L 214, p. 22). See para. 52, citing Artegodan, n.14 above.

27 Monsanto, n.12 above.

28 Case C-127/02, Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij, 7 September 2004, nyr.

29 Article 6(3).

30 Paras. 55-56

31 Para. 57

32 Para. 59

33 Eutrophication means the enrichment of water by nutrients, especially compounds of nitrogen and/or phosphorus, causing an accelerated growth of algae and higher forms of plant life to produce an undesirable disturbance of the balance of organisms present in the water and to the quality of the water concerned. See Article 2(11) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (OJ 1991 L 135, p. 40).

34 C-280/02, Commission v France, 23 September 2004 nyr, para. 34, in which the Court said:

“. . pursuant to Article 174 EC, Community policy on the environment is to be based on the precautionary principle. In the present case, given the available scientific and technical knowledge, the degree of probability of a causal link between nutrient inputs into the Seine bay and the accelerated growth of phytoplankton in that area is sufficient to require the adoption of the environmental protection measures provided for in Directive 91/271 if the other criteria for eutrophication are fulfilled.”



35 Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste, 1991 OJ L 78.

36 The list includes production or consumption residues, off-specification or out-of-date products and contaminated materials.

37 See, for example, Ilona Cheyne, "The Definition of Waste in EC Law" (2002) 14 Journal of Environmental Law 61-73; Ilona Cheyne and Michael Purdue, "Fitting Definition to Purpose: the Search for a Satisfactory Definition of Waste" (1995) 7 Journal of Environmental Law 149-167

38 Case C-1/03, Criminal proceedings against Paul Van de Walle, et al., 7 September 2004, nyr.

39 Para. 45, relying on Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others [2000] ECR I-4475, paras. 36-40.

40 See, for example, Surya P. Subedi, “The Road From Doha: The Issues for the Development Round of the WTO and the Future of International Trade” 52 International And Comparative Law Quarterly (2003) 425.

41 See, for example, Sydney M. Cone III, "The Asbestos Case and Dispute Settlement in the World Trade Organization: The Uneasy Relationship between Panels and the Appellate Body." 23 Michigan Journal of International Law (2001)103-42.

42 See, for example, the panel reports in Tuna Dolphin II, n.8 above; US - Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, 12 October 1998 (the Shrimp case) and European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R (12 March 2001) (the Asbestos case).

43 Ibid.

44 See n.5 above for the text of Article III:4.

45 Appellate Body Report, para. 18.

46 Ibid., paras. 18-42.

47 This point is likely to be highly relevant in the current WTO dispute between the US and the EC over geneticallymodified organisms, EC – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/27, WT/DS292/21, WT/DS293/21. The Panel is due to issue its report by the end of June 2005.

48 Another interesting point is that Canada failed in its argument because the Appellate Body found that it had not shifted its burden of proof. Although this may have been coincidental, it fits with the way in which the precautionary principle works in that it keeps the burden of proof on the party which claims that there is no danger rather than imposing it on the party asking for action to be taken. It makes it easier for a country to take a precautionary approach. However, one member of the Panel stated in his separate statement that on the evidence he would have made a determination that the products in question were not like, whereas the other members were reluctant to do so because they were wedded to the fundamental concept of a competitive relationship in the consideration of ‘likeness’.

49 Para. 85.

50 N.42 above. See Ilona Cheyne, "Trade and the Environment: The Future of Extraterritorial Unilateral Measures After the Shrimp Appellate Body" (2000) 5 Web Journal of Current Legal Issues,



Share with your friends:
  1   2




The database is protected by copyright ©essaydocs.org 2020
send message

    Main page