The Precautionary Principle
An administrative perspective
Topics and summary
Peter Gjørtler
Jørgen Henningsen
Question time
How does the law perceive the precautionary principle?
Peter Gjørtler
Lawyer, Dragsted and Helmer Nielsen
How has the European Commission applied the precautionary principle?
Jørgen Henningsen
Former director general of Directorate General XI, Brussels
Summary
PETER GJØRTLER began by stating that the result of the previous day’s vote in the
EU meant greater priority for environmental work at policy level, but not at the legal
level, as through Article 6, the environment was included in all policy areas.
The new Article 174 continues to build on the same four principles with a view to
achieving a high level of protection: the precaution, prevention, local, and payment
principles. However, the Amsterdam Treaty contains no final definition of the
precautionary principle as a legal norm.
According to Mr Gjørtler, the precautionary principle is more like shaking an index
finger at the Union’s citizens and enterprises, telling them that every activity
involves a risk, and every doubt about the extent and effects of the risk must benefit the
surroundings.
Legally, it provides the Union, both jointly and as individual countries, the opportunity
and the duty to intervene in an activity even if there is only a suspicion that it could
be harmful, rather than waiting until a scientific basis has been established. However,
this also means limitations to an enterprise’s freedom of trade.
According to Mr Gjørtler, Union law provides no guarantee that enterprises should have
full and limitless freedom of trade. On the contrary, national regulations which provide
for freedom of trade must give way to Union law which requires harmonisation and, for
example the principle of free movement of goods.
This raises the problem of when such a fundamental Union-law objective should give way for
the benefit of protection of the environment. The answer can be found in the principle of
proportionality which provides a number of criteria for Union law to regulate an activity.
These criteria make up a kind of minimum level for when the authorities can cite the
precautionary principle without adequate evidence that there is, in fact, a risk.
Article 95 in the new Amsterdam Treaty in fact emphasises this by requiring scientific
evidence from Member States if they are to cite the so-called environmental guarantee. Mr
Gjørtler perceived this tightening as an expression of a desire for better balance
between the precautionary principle and the principle of proportionality so that risk is
shifted to the benefit of the environment rather than free regulation.
The precautionary principle provides authorities with both the right and the duty to
protect the interests of the environment against enterprises. It does not also require
enterprises to act environmentally correctly. Mr Gjørtler believed, however, that in a
given case, when determining liability the courts would look at whether an enterprise
chose the course of action which was most in accordance with the precautionary principle.
Finally, he pointed out an important aspect of the practical application of the
precautionary principle in administration, that is the possibility to make freer and more
extensive estimates both of a given pollution risk, and of how reasonable it is that
society should accept such a risk.
JØRGEN HENNINGSEN, former director general of the European Commission Environmental
Directorate, DG 11, called the precautionary principle an expression of common sense, that
is, people’s justifiable expectations that the authorities will not just close their
eyes to a risk, but that they will take it seriously. He also pointed out that the
principle is also applied in other areas such as flight safety, foodstuffs, etc.
According to Mr Henningsen, this is far from a new phenomenon. The principle was first
written into the Maastricht Treaty in 1992, but had been applied long before to the same
extent as it was after 1992, for example in relation to pesticides in drinking water, and
lead in petrol. He emphasised that it is far from without meaning that a requirement
relating to the precautionary principle was laid down in the Treaty because of the
constant balancing with the principle of proportionality’s demand for cohesion
between cause, effect, and regulation.
As an example of the significance of principles laid down in the Treaty, he used the
efforts to introduce the principle of principle in the Agriculture Commissioner’s
proposal for legislation on pesticides in 1992 which led to an extension of the objectives
of surveys and regulation to specific requirements for limiting pollution at source and
prevention rather than subsequent correction. Mr Henningsen emphasised the great
significance of the precautionary principle and corresponding declarations of intent in
the practical implementation of the various framework legislation, in particular in the
individual Member States. At the same time he pointed out the EU’s considerable
success in including the precautionary principle in the global debate on the importance of
protecting the world’s climate and biodiversity, despite the continued scientific
uncertainty of future developments and the significance of these.
He concluded that the precautionary principle first of all prevents the dilatory process
which arises when every situation must be proved. It does this by laying down in the
Treaty the duty for the public and the administration to use their common sense in
protecting natural resources.
How does the law perceive the precautionary principle?
Peter Gjørtler
Lawyer, Dragsted and Helmer Nielsen
The Amsterdam Treaty
In a referendum yesterday, Denmark adopted the Amsterdam Treaty. An obvious
question is, therefore, how far will this Treaty change application of the precautionary
principle?
The short answer is not at all. The important principles for application of the principle
are unchanged in the EU Treaty following the amendments made by the Amsterdam Treaty.
It states in Article 3, 1(1), that an environmental policy must be introduced. The
principles which are to support this environmental policy are described in Article 130 R
(now called Article 174) and are unchanged.
The only point which has been amended is that the duty to involve environmental policy in
all other policy areas has now been removed from Article 174 and now appears independently
in the new Article 6. This is therefore not an expression of an actual amendment, but more
a political upgrading.
The environmental policy of the Union
The objectives of the Union’s environmental policy, according to Article
174, are to achieve a high level of protection where account must be taken of local
differences within Union territory when setting such a level.
The principles which are to be applied, according to Article 174, include the
precautionary principle, the principle of prevention, the local principle, and the
principle of payment.
The principle of payment is an expression of placing liability so that the polluter must
pay for the costs of the pollution he causes. This principle can be seen as a message to
individual citizens with a view to encouraging them towards environmentally-friendly
behaviour as it threatens financial liability for environmentally-harmful actions.
However, the principle can hardly comprise the foundation for allocating liability in
itself, it must be implemented by legislators. The other principles seem more clearly to
aim at the legislators, and put demands on the mechanisms which are applied in law-making.
The principle of prevention requires that pollution must be prevented rather than
corrected, and the local principle requires that efforts must primarily be at the source
of the pollution so that the risk of spreading is minimised.
The text of the Treaty does not include an ultimate definition of the precautionary
principle, and the wording could appear that it is to be considered as an overall
principle for approaching environmental issues where the prevention principle and the
local principle could be considered more specific statements of a desire for prudence.
The prevention principle and the local principle were included in the EU Treaty as early
as in the Community Act of 1986, while the precautionary principle was first added in the
Maastricht Treaty in 1992, at the same time as the law-making process in the environment
area was reorganised from unanimous to a qualified majority.
However, this is hardly a basis for only understanding the precautionary principle as a
collective term. Instead, within the framework of the EU Treaty, it should be provided
with the additional content it has received in international-law, including the Rio
Declaration of 1992.
The precautionary principle
The primary contents of the precautionary principle can be summarised as a
balancing of risk; who should bear the burden of the uncertainty which scientifically may
exist in possible contamination resulting from a certain type of behaviour?
The precautionary principle states that it should not be the environment which bears the
burden, but rather the enterprises which wish to follow the behaviour creating this
scientific doubt.
The precautionary principle must therefore be considered based on a liberal understanding
of the legislative system where the individual’s freedom of action can only be
limited by legislation in situations where the legislator has good reason to believe that
the action can be detrimental to other interests, including through pollution.
The precautionary principle allows the authorities to weaken requirements to prove that an
enterprise’s behaviour is causing pollution. Merely by demonstrating a risk that
actions can cause pollution can the authorities intervene and regulate the
enterprise’s behaviour.
By laying down the principle in Union law, the principle of loyalty in the Article 5 of
the EU Treaty must mean that the principle does not only provide for intervention at an
early stage in risk assessment, but it also that involves a duty for early intervention.
This duty is primarily aimed towards Union law-makers, but it also applies to national
authorities when they are to adopt legislation which can be relevant to realising the
goals of the Union. This includes implementing sustainable development which is laid down
in Article 2 of the EU Treaty.
The relationship with legal rights
In general, a phenomenon involving an extension of one party’s rights will
necessarily mean a limitation of other parties’ rights unless it includes an area
with infinite resources.
The situation that legislators’ access and duties to intervene in behaviour which
threatens pollution are extended, therefore means that enterprises’ right to freedom
of action is narrowed. The situation that intervention can be made on an uncertain basis
in relation to the risk of pollution means that the possibilities to intervene can be
perceived as a reduction in enterprises’ legal rights.
Consideration of this situation as a legal-rights problem assumes that enterprises have a
legal right to freedom of action. This right is not laid down in Union law and can
therefore hardly be presented as an argument against harmonised Union law which is adopted
on the basis of the precautionary principle.
In relation to national exemptions outside the harmonised areas, or as an extension of
minimum harmonisation, Union law will include a requirement for freedom of action in many
circumstances.
For example, this will be the case where national rules comprise an obstacle to the free
movement of goods. Based on the Cassis de Dijon principle, such obstacles can only be
accepted on environmental grounds, provided the fundamental principle of proportionality
is respected.
Precisely because the principle of proportionality is a fundamental principle of EU law,
it also applies as a requirement for general harmonised Union law in that it should be
proportional to its objectives.
In this way, the apparent difference in assessment of harmonised Union law and national
exemptions are removed in that, in both cases, there is a duty to conduct an assessment of
the extent to which citing the precautionary principle complies with the principle of
proportionality.
The principle of proportionality
The fundamental content of the principle of proportionality is that every
regulation must serve a definite purpose, that regulation must be necessary in order to
achieve this purpose, that it must not have a wider scope than necessary to achieve this
purpose, and that, in achieving its purpose, it must provide as little disturbance as
possible to those subject to it.
This must mean that the principle of proportionality forms a limit to making free
estimates when applying the precautionary principle. Although the precautionary principle
releases the law-makers from demonstrating direct evidence of a pollution risk, the
principle of proportionality must involve a requirement on the degree of probability which
must be shown for the pollution risk to form the basis for intervention.
This balance is most clearly expressed in Article 95, Section 5 (previously Article 100a)
of the EC Treaty, as amended by the Amsterdam Treaty. The provisions apply to the
so-called environment guarantee and regulate Member States’ ability to introduce
stronger national provisions, despite implementation of total harmonisation.
In contrast to the situation of transferring existing rules, which according to Article
95, section 4, can freely be done on the grounds of environmental concerns, Section 5
provides restrictions on the introduction of new provisions.
These provisions must therefore be based on an environmental problem which was unknown at
the time of harmonisation, which is specific to the relevant Member State, and which is
based on scientific evidence.
This requirement for scientific evidence can be considered as an exception to the
precautionary principle, which can be justified by the condition that adoption of
harmonised regulations in itself should be on the basis of the precautionary principle. It
can also be considered as a definition of the limits which are imposed by the principle of
proportionality on application of the precautionary principle.
In my opinion the provisions are most meaningful as an expression of the balance between
the precautionary principle and the principle of proportionality such that they show that
the precautionary principle does not involve free access to regulation, but it only allows
upgrading risk in order to take account of the environment.
Legislation based on the precautionary principle
As mentioned above, Article 174 (previously Article 130) of the EU Treaty
mentions the precautionary principle with the principle of proportionality. The two
principle are considered synonymous by the legal system in many countries.
Irrespective of whether we choose to consider the principles as separate, it will be
possible to construe many initiatives as being built on both the precautionary principle
and the principle of proportionality.
For example, this applies to procedural regulations such as the VVM Directive and product
regulations such as the Directive on pesticides. Both of these are built on the principle
that a survey must be conducted before an action is implemented.
Of course, this can be construed as an instance of prevention in that the previously
prepared survey must prevent the occurrence of subsequent pollution. However, it can also
be construed as a declaration of precaution in that demands are placed on the elucidation
of risk factors before a specific behaviour is permitted.
The VVM Directive does not place requirements on an acceptable pollution risk, but only
places requirements on the approach to elucidating the risk.
Similarly, the Directive on pesticides does not make demands on the pesticides which can
be approved, but only on the administrative procedures which must be followed for an
active substance to be included on the list of ingredients which may be included in
pesticides if they are to be approved.
Correspondingly the precautionary principle in Danish legislation is seen in particular as
a demand on the process which leads to possible intervention. This appears in Section 3,
Paragraph 2 of the Environmental Protection Act which states that not only must account
taken of the recognised effects of a pollutant on the environment, but also account must
be taken of its likely effects.
The legal effects on enterprises of the precautionary principle
It appears that the precautionary principle primarily contains a requirement for
the law-makers to include, not only recognised pollution risks, but also possible
pollution risks when assessing potential intervention. At the same time they must respect
the principle of proportionality’s requirement for balance.
The question is whether, in addition to this, the precautionary principle can directly or
indirectly influence the behaviour of an individual enterprise as a general principle of
Union law.
The wording of Article 174 (previously 130r) in the EU Treaty does not provide a basis for
the principle to be interpreted as an requirement norm which directly obliges an
individual enterprise to choose a course of action based on precaution.
In contrast, an indirect effect could be perceived in the same way as the restrictions on
countries’ abilities to implement measures which provide obstacles to free trade.
These restrictions effect enterprises’ opportunities to cite intellectual property
laws.
The European Court has therefore ruled that if, by citing intellectual property law, an
enterprise could cause a split in the market, this represents an obstacle to free trade,
and if legislation in a Member State permits this. As a consequence the Member State is
obliged to interpret such legislation so that this is not possible.
Therefore, it could be argued that, provided several legal courses of action remain open
for an enterprise, the precautionary principle must imply that national provisions
regarding liability for pollution should be interpreted such that when identifying
liability, the fact that an enterprise did not choose the course of action which is most
appropriate to the Precautionary principle has no significance.
Similarly, it could be argued that in such a matter of identifying liability, there must
be a duty to interpret the right national process and compensation such that requirements
for proof of causality between behaviour and pollution are relieved by the precautionary
principle.
The Precautionary Principle
The questions
In the introduction to this conference, four questions were asked about the
precautionary principle which I would like to be the first to attempt to answer.
The first question referred to the threshold of what scientific evidence is required
according to the precautionary principle. It is precisely this threshold which in my
opinion is formed by the principle of proportionality, and in this way the legislator and
the administrator balance the extent to which scientific evidence makes causality
sufficiently likely to permit intervention under the precaution principle.
This relationship also corresponds to other applications of expert statements in
administration, where scientific experts do not have authority to make decisions of legal
administration, but merely present information which will be included in the decision.
In many situations, respect for scientific input will imply that there will be little room
for manoeuvre for the legal administrators’ decision.
In my opinion, it is crucial to the precautionary principle, that the close relationship
between scientific evidence and the legal administration is weakened so that the legal
administration has more room to manoeuvre. This also applies to the national legislative
process.
The second question applied to people’s demands on application of the principle and
how far these demands are limited by the extent of people’s freedom of consumption.
Smoking was highlighted as an example where citizens have a choice, and it was compared
with drinking water.
In my opinion, the debate on liability for smoking-related diseases in the USA is pointing
towards such a distinction becoming irrelevant, in that demands for caution will not only
be raised against suppliers of basic necessities, but also against all suppliers who
provide products which involve a risk of pollution.
The third question referred to the expected attitudes of industry towards the
precautionary principle, and how far there will continue to be demands for full scientific
support for intervention in freedom of action.
In my opinion, precisely the potential indirect effect of the precautionary principle -
shifting rules for liability and proof in cases of pollution - will mean industry finds it
necessary to adapt to the precautionary principle.
Finally, the fourth question was about the skills which we have achieved today to perform
cost-benefit analyses of usefulness and pollution risk in relation to the precautionary
principle.
Experience has demonstrated repeated errors where actions which were regarded as
environmentally harmless, or which were thought to have net social advantages later turned
out to have a far greater environmental cost.
In my opinion, this experience corresponds to the central message of the precautionary
principle. There should not be a narrow balancing of well-defined pollution risks and
operating or social advantages. On the contrary, a freer, more comprehensive estimate must
be made of the pollution risks involved in a specific behaviour, and of how reasonable it
is that society should accept these risks.
How has the European Commission applied the precautionary
principle?
Jørgen Henningsen
Former director general of Directorate General XI, Brussels
Thank you for inviting me today. Originally I was asked to make a legal speech about
applying the precautionary principle within EU legislation. However, given that I am a
chemical engineer and not a lawyer, we agreed that I should reflect on how I experienced
application of the precautionary principle during the ten years in which I had the
pleasure of working at the European Commission General Directorate for the Environment, DG
11.
Allow me to start with a quotation which is the political justification of what I will
subsequently try to say. When Ken Collins, the Chairman of the European Parliament’s
Environmental Committee, once talked about the principle of subsidiarity, he said that
this principle, which has been so talked about, in fact reflected no more than good
everyday common sense. Very much the same can be said for the precautionary principle.
This expresses perhaps, in addition to common sense, people’s justified expectations
that legislators and administrators take account of conditions which are not necessarily
entirely clear, but which involve risks which should not be ignored.
Firstly, it is important to be aware that when the precautionary principle is especially
associated with the environment paragraph in the EU Treaty, this does not mean that the
precautionary principle is applied to this area alone. It is also applied in flight
safety, foodstuffs, and a large number of other situations. It is very important to be
clear about this, and also that the precautionary principle has only rarely been applied
as a direct argument with regard to the matters which we deal with. It is also important
that the precautionary principle was applied to the same extent before it was included in
the treaty in 1992, as it has been since.
There are important elements of the precautionary principle in legislation and various
environment -policy measures from the 80s, where preparatory work took place as long ago
as the 70s. Pesticide regulation in the Directive on drinking water has been mentioned as
an example, where we said that these are biologically active substances which could give
rise to beliefs that they could have some effects of which we are not aware. Therefore,
they must be limited as far as possible, and in reality, should not appear in drinking
water at all.
We could go on to the limiting of lead in petrol where there was a suspicion that lead
could affect how children’s intelligence develops, although this was far from proven.
Even though epidemiological studies have since reinforced this suspicion, there are still
justifiable doubts as to the specific levels. However, no one today would criticise the
decision that lead should be removed from petrol, and also reduced in a large number of
applications.
One of the points I would like to touch on here is the principle of proportionality which
both Erik Lindegaard, the director general of the EPA and Peter Gjørtler have brought up.
In everyday life in Brussels, no matter of whether it is within the Commission, or in the
interplay between Member States, there is no doubt that the principle of proportionality,
that is that there must be cohesion between what is intended and what is proposed, also
applies to the precautionary principle.
If it is right that the precautionary principle first and foremost reflects peoples
justifiable expectations of how we legislate and how we administer, it is equally right
that the precautionary principle provides a constant balancing process against the
principle of proportionality.
These introductory remarks could perhaps give the impression that I am indifferent as to
whether the precautionary principle is included in the Treaty. Many of the measures and
much of the legislation which can be said to reflect the precautionary principle would
look exactly the same if the principle was not in the Treaty. However, it is important
that, in the first and foremost, the Treaty reflects common sense, and people’s
justified expectations. There are of course a number of situations where the Treaty can
and should lend weight to an argument.
The best example I have of applying principles in the Treaty is, in fact, not related to
the precautionary principle, but to the principle of preventive efforts. This is an
example of where, in certain situations, the more general principles in the Treaty, at
least from a Danish point of view, can be particularly useful.
When, in 1992, the Commission was to submit a proposal for legislation on pesticides, and
please note this was managed and prepared by DG 6, the General Directorate for
Agriculture, it included of course a lot of pretty words and principles about studies,
regulation, and so on. However, it lacked the principle that pollution should be limited
at source, or that preventive measures are preferred to subsequent remedial measures.
In practice, this is to say that, although there is drinking-water legislation which
demands that drinking water may only contain a maximum of 0.1 micrograms of pesticide, it
follows from the precautionary principle that the unfiltered water used for drinking water
should not contain more pesticides than would enable the water to be used as drinking
water without it being filtered in the first place.
In DG 11, we had this view included in the Commission’s proposal, and I consider this
as one of our clear victories within the Commission. When the proposal was read in the
Council, out of 12 Member States, 11 were fiercely against the idea. There was just one
country, coincidentally Denmark, which supported the idea.
Two years later, the Directive was adopted after amendment of various points, and not
necessarily as one could have wished it to appear. However, the fundamental principle was
maintained, that in future, pesticides may only be permanently approved if there is no
reason to believe that use of pesticides will give rise to concentrations in water
resources, particularly in the ground water but also in surface water, of over 0.1
micrograms.
This demonstrates that it is not unimportant whether principles are laid down in the
Treaty, but in many cases daily politics take place according to other criteria. The
precautionary principle, just as the other principles which are built into the Treaty
today, applies to the same extent to developing policies, as to adopting and implementing
legislation. As many have already said, much of our legislation is in the form of
framework laws where in reality it is not possible to say precisely how the precautionary
principle is to be applied. This is because the answer is first apparent when the
framework law is to be applied in practice.
For example, this applies to the Directive on pollution from large industrial enterprises.
It applies to the Impact Assessment Directive, and it will also apply to the new Directive
on general protection of water resources. The test of whether the precautionary principle
is being applied as it should will generally take place in the administration in the
individual country and in the execution of the framework law.
It is important that, at the moment, the EU is participating in negotiations on important
global problems where the precautionary principle is vital. In particular, the Climate
Convention and the Biodiversity Convention are two of the problem issues where we can be
particularly pleased to see that EU policies have embraced the precautionary principle,
although without explicitly mentioning it to a greater extent than the rest of the world
has done.
The EU view, which is not only strongly supported by Denmark, but is also widely supported
by most of the Member States, when compared with the view supported by other
industrialised countries is that, although there remain justified doubts on a number of
possible consequences of the of changes in the climate, the potential consequences are so
serious that we should start to take action now.
However, the principle of proportionality is also respected in that we have said that the
initiatives which we propose, or the quantitative objectives for limiting green-house
gasses are at the moment of such a size that they will not adversely affect normal social
development. This also assumes that we can agree on a sensible method of doing this.
All in all, it can be said that the precautionary principle had been part of EU
environmental policy for some time before it found its way into the Treaty. It is not a
principle which is brought up daily in EU work. It is stated as a matter of course in many
places in the preamble to various Directives, but without being an important part of the
political debate on the legislation.
However, it is an underlying principle which in general has been accepted, and it is a
principle which at least prevents those who in different connections state that there is a
lack of definitive evidence for this and that. It prevents using these arguments with
weight because the Treaty states hard and fast that common sense must prevail when
developing and implementing environmental policy.
Question time with Peter Gjørtler and Jørgen Henningsen
Niels Juul Jensen, Danish Environmental Protection Agency
Peter Gjørtler gave a splendid review of the rules in relation to Union law, and
took his point of departure in this. On the other hand, one could ask how he sees this
manifested, in particular that part of the law which affects citizens or enterprises. How
well is it implemented in Danish legislation?
Peter Gjørtler
It appears in Danish legislation in more or less the same way as in EU
legislation. It is mentioned as an overall principle when applying the law. The crucial
question is therefore what is the specific legal effect of the principle when it is
applied?
At the moment we are relatively weak on this point. On looking at Danish legal practice I
have actually not been able to find instances of where the precautionary principle is, in
fact, cited. Similarly, in the European Court we can only find a single case where the
precautionary principle is cited, but unfortunately the case was thrown out because the
prosecutor failed to validate the law suit. This was the case regarding the French
nuclear-bomb tests.
If we look more generally at the issue of environmental principles, and citations of them
in legal practice, we can identify a total of eight decisions which apply to the
application of the principles laid down in Directive 174, previously 130r, the special
environment principles. What is demonstrated is the balance between the principles of
proportionality and precaution which involves shifting the authority to regulate of the
Member States.
This is especially apparent in two cases which relate to hazardous waste in Germany and
Belgium. Without it being entirely clear, in these two cases we can also see the
foundation for citing the precautionary principle as a legal principle which could also
apply to enterprises.
However, at the moment this is only an indication. It is not a statement of actual legal
practice, and I do not think that it can be seen in Danish legislation implementation,
except the mere mention of the principle. The effect legal practice has on the individual
enterprise depends on how legal practice develops.
Peter Skov, the Confederation of Danish Industries
It is interesting whether the precautionary principle has been implemented
adequately; whether it is to be found sufficiently clearly stated in Danish legislation.
This discussion could continue after our session today. This would mean that if the
principle were more clearly stated in the legislation, the bases for applying the
principle should also be taken to issue. This could provide a useful exercise as an
extension of the discussion.
Jørgen Henningsen has a slightly different approach to this, and I can well understand
that he said ‘no thank you’ to providing the legal side of it. The point was
that common sense is alive and well, not least in the EU when Denmark plays its part.
Reading between the lines it could also be understood that common sense also thrives when
Jørgen Henningsen is involved in the EU! My question therefore is whether, with his
background in Denmark as a civil servant for many years, he has the same understanding.
I agree that it is a good thing to further discuss and develop the principle, but my other
question to him is: What is the real significance of the principle with regard to the way
we make laws; the way we relate to the precautionary principle? How do you assess this in
relation to your career in the EU?
Jørgen Henningsen
When I use an example from my own area to show how the combination of the Danish
way of looking at things and EU legislation could interact, it was not to emphasise my own
expertise. It is clear the civil servants in the Commission who come from countries which
are used to leading relatively high-profile environmental policies have the principle more
deeply ingrained than others. However, it would be very wrong if I gave the impression
that we were a small band of holier-than-thou redeemers in DG 11.
In fact, there is wide interest in DG 11 to conduct ambitious environmental policies in
the EU. In recent years, this ambition has spread to other General Directorates. It was a
great pleasure to see how much we were supported by DG 3 in our discussions with the car
industry on petrol consumption, so that we were able to pressurise industry into allowing
more to be done in this direction.
Developments in the legal-political area in Brussels are leading in the direction where
the precautionary principle is something for which there is common sympathy, and which is
often accepted as a basis for legislation, although it is not necessarily cited.
It is clear that people moan each time application of the precautionary principle comes up
against established interests within a certain sector, region, or Member State. However,
it falls completely into step with the precautionary principle as an expression of common
sense, and common sense in the political process has the same elements.
Therefore, I will not say anything about career opportunities on the basis of the
precautionary principle, and anyway, I am now out of the system. However, the
precautionary principle is deeply involved in daily administration in Brussels, in the
environmental area, and in a number of other areas.
Peter Skov
I would just like to add that I can not have expressed myself clearly. I actually
asked you because of your background in the Danish administration, where for many years
you have worked with environmental matters. We have some extensive rules in the EU for
application of the precautionary principle. My question was whether there was adequate
common sense at the time you worked with Danish environmental matters.
Jørgen Henningsen
The broad political motivation behind the things which happen or do not happen is
what is crucial. A better answer is perhaps that for me it has always been a little
bizarre that EU environmental policy in the form of the Fifth Environmental Action
Programme from the Rio Conference was, in fact, strongest in the years leading up to the
Maastricht Treaty.
The success of the legislative initiatives after 1992 is less obvious than in the years
before 1992, when a number of extensive laws were adopted. Attempts are now being made to
implement these. Amendments to treaties are more often a reflection of what has happened
in the past than what it is necessarily possible to implement in the future.
I am reluctant to make a precise comparison between my work in Brussels and Copenhagen as
there was a ten years’ difference, and there are so many other things which make it
hard to compare. In Denmark, environmental policy blossomed in the late ‘70s and
early ‘80s, and this happened at a different time in Brussels. It was not because I
moved to Brussels at this time. It was a coincidence that, at that time, a number of the
countries had not really started in this area when we were already well on the way; Spain,
Italy, and others, became aware that this was a serious issue. Therefore, both in the
Commission and in the Council, there was a basis to really get things going.
It is this which makes me say that people’s expectations and common sense are
expressed in these principles. It should not be understood in the same way as property
rights or the right to assemble or other principles which are included in the
constitution.
Helga Moes, Member of Parliament (Folketing), the Liberal Party
I would like to make a link. In the introduction, there was talk of openness.
This is a central issue in the precautionary principle. If no one holds the principle on a
very short lead, it is sure to run away with us. This was clear from the last talk.
It is not enough that Denmark arrives with some opinion or other which we pour out over
the rest of the world. We can link this to the detection of AMPA. In this case, it was not
said that if we find AMPA, and it has other origins, then the detection of AMPA in itself
is decisive that the substance should be phased out. Instead, it was said that if it comes
from glyphosate, it must be phased out. If it comes from other sources, we must look at it
in another way.
When we go out and ask people to react with common sense to such a report, they laugh and
say, "Groundwater is groundwater, and AMPA is AMPA. It is irrelevant whether is or
not it is toxic, or where it comes from". So, something has run away with us,
political power has entered the arena.
The great threat in the precautionary principle is that it has been abused from the outset
by people with special interests. It is not based on common sense but on political abuse
of power. Therefore, openness becomes necessary. This means we must go out and talk to
individual citizens. We must tell them that if they drink water with 0.1 micrograms of
atracine, they can drink 2,800 cubic metres of water each day for ten years before they
are harmed by the atracine. Nevertheless, people will say, "It is the water which is
dangerous".
We have to get people’s support if we do not want political power to run away with
us. I would like to ask how far the civil servants who administer the precautionary
principle are willing to be open so that people join in and no longer suffer from the
anxiety which was once forced upon us. What will civil servants do when people with common
sense arrive and say, "It doesn’t matter whether AMPA in groundwater originates
from households or from pesticides, whether there are 0.1 or 0.2 micrograms, if AMPA
isn’t dangerous". Will you submit to changes in public opinion? That is, will
you change your administration of the precautionary principle?
Peter Gjørtler
This question has two perspectives. The first is the risk of abuses of power when
applying the precautionary principle. This situation, that the precautionary principle is
a ‘soft’ principle allows for considerations other than protection of the
environment to creep in.
I tried to address this and I also understood that Jørgen Henningsen agrees that there is
an on-going balance between environmental considerations enabled by the precautionary
principle, and the fundamental legal principle of proportionality, including that every
legal act and every intervention must meet a specific objective and only that objective.
That is, the principle of proportionality includes a limit to involving unwelcome
considerations.
Then you ask about how we monitor that this happens. Important strides have been taken in
the Maastricht Treaty and even more in the Amsterdam Treaty to try and bring about
openness in both the political process and in the legal administrative process in the EU
system.
Some will say that such strides had essentially already been taken at institutional level,
before Amsterdam. However, what is important with the new Treaty is that laid down in the
text of the Treaty is that there must be free access to information, and there must be
openness in the political decision-making process so that the important criteria on are
also presented when deciding an intervention and other legal actions.
Jørgen Henningsen
A remark on the question of regulation of pesticides in drinking water. Openness
is of course important in application of the precautionary principle, just as it is in so
many things, both in the EU, and in Denmark.
But, especially in respect of the pesticide parameter, we have revised the Directive on
Drinking Water recently and we had a long debate about whether we should retain the
drinking-water parameter at 0.1 micrograms for all pesticides, irrespective of how
hazardous they are. It was clearly political that the Commission retained the old
pesticide parameter. This is not so bad. The Commission assessed that it is irrelevant
whether it was administratively possible to set different parameters for different
pesticides which reflect their relative danger. It could be done in a way which would
maintain respect for the precautionary principle, but there was no political desire to
change the conditions reflected in the Directive on Drinking Water, namely that pesticides
have no place in drinking water.
Pesticides are something we use in agriculture. Pesticides are the only situation where it
is permitted to spread hazardous chemicals in the environment. Therefore, this must be
done in such a way that they will not turn up in the ground water or in drinking water. I
do not consider this a misuse of the precautionary principle.
The old parameter for pesticide was set long before anyone discussed the precautionary
principle. It must not be understood as being based solely on the precautionary principle.
It is clear that respect for the precautionary principle provides strict demands, but it
goes further than that, and I believe that it is also fully legitimate to do this in a
political context.