Posts Tagged Precaution
A short update on the Court of Justice’s ruling in C-151/17 Swedish Match, in which yesterday it upheld the legality of Directive 2014/40’s ban on ‘snus’ and generally on tobacco products for oral consumption. (Sweden is exempt: Article 15(1) of the 1994 Act of Accession).
The Court reaffirms the bite of the precautionary principle; emphasises the ‘gateway effect’ of snus for the young, including intern alia because consumption of snus can be done very discreetly and hence enforcement of an age ban (a suggested alternative) not effective; and the importance of giving precedence to public health over economic profit.
It also, yet again, shows that measures like these do not fall out of thin air because, as proponents of the precautionary principle would suggest, anti-innovation zealots dream up restrictive measures to kill enterprise. Rather, following extensive scientific advice, the ban is a sensible and proportionate measure to take.
EU Environmental Law, with Dr Leonie Reins, 2017, Chapter 2, Heading IV.
Mirror entries in EU (hazardous) waste law. Campos Sánchez-Bordona AG in Verlezza et al. I.a. a useful reminder of the true meaning of precaution.
Joined Cases C-487/C-489/17 Alfonso Verlezza et al, in which Campos Sánchez-Bordona AG opined last week, (no version in English available) is one of those rather technical EU environmental law cases which for that reason risks being overlooked by many. This is even more the case in EU waste law. Many of its provisions are subject to criminal law sanctions, hence encouraging defendants to take its application to the most intricate of corners so as to avoid a criminal conviction.
Verlezza et al concerns the implementation by Italy of a notoriously tricky part of EU waste law: the determination of wastes as being ‘hazardous’. Clearly, these wastes are subject to a range of stricter measures than ordinary wastes. Interestingly, while these wastes are more dangerous than ordinary wastes, they are often also more attractive to waste industries: for as secondary raw materials they may have high value (one can think of cartridges, batteries, heavy metals).
Protracted to and fro at the time between the European Commission and the Member States plus Parliament (which I explain in relevant chapter of my Handbook of EU Waste law; which I am pleased to note the AG refers to), eventually led to a regime with two or if one likes three categories: wastes considered per se hazardous; and wastes which may be considered hazardous or not, depending on whether or not they display hazardous properties in the case at issue (hence three categories: hazardous per se; non-hazardous and hazardous in concreto). This latter category are the so-called ‘mirror entries’: wastes originating from the same source which depending on the specifics of the case, may be hazardous or not.
Wastes produced by households (‘domestic waste’) are not considered hazardous. However the AG emphasises correctly that this exemption from the hazardous waste regime (via Article 20 of the waste framework Directive, 2008/98) does not apply to the case at issue, given that the ‘domestic’ wastes concerned have already been mechanically sorted. It is the qualification of the waste residues following sorting that needs to be resolved.
The mirror entries are the result of heated debate between the Institutions. The EC was hesitant to provide a binding list given the need for individual assessment; Council and EP were looking for regulatory certainty. In the end, Member States may (indeed have to) consider waste as hazardous when the material displays one or more of the hazardous properties listed in Annex to the EU list of waste. This also requires the Member States to issue a procedure which guides this assessment. It is the specifics of the Italian procedure (producers have to classify specific streams of waste as either hazardous or not; they have to carry out the necessary scientific tests; they are bound by the precautionary principle) which have triggered the case at issue.
At 19 the AG refers to the discussion in Italian scholarship: one part among others on the basis of the precautionary principle defends a reversal of the burden of proof: waste in the mirror entries is considered hazardous unless industry proves its non-hazardous characteristics; the other part proposes that scientific analysis needs to determine hazardousness in each specific case (quoting the sustainable development of the sector in support).
The AG opines that the Italian modus operandi needs to be given the green light, among others referring to the recent April 2018 EC guidance on wastes classification and the criteria defined in the Directive, which render a waste hazardous: producers of waste are perfectly capable indeed in the Directive’s set-up have to assess the hazardous character of the waste and the Italian regulations are a capable way of ensuring this.
The defendants’ ultimate argument that the precautionary principle should allow them to consider waste as hazardous even without such assessment, also fails: scientific assessment is able to determine a substance’s hazardous characteristics. Defendants’ approach would lead to all mirror entries being defined as hazardous. The Directive’s principle of cost benefit analysis ensures this does not lead to excessive testing- proportionate testing for properties will do the job. (It may be surprising that the defendants make this argument; but remember: in a criminal procedure all arguments are useful to try and torpedo national law or practice upon which a prosecution is based; without a valid law,, no prosecution).
This latter part of the Opinion, related to the precautionary principle, is a useful reminder to its opponents (who came out in force following this summer’s mutagenesis ruling; for excellent review of which see KJ Garnett here), of the principle’ true meaning.
Handbook of EU Waste law, 2nd ed. 2015, OUP, Chapter 2, Heading 2. ff (to which the AG refers).
Update 10 January 2019 the final report is out here. Social scientists will be particularly interested in Chapter 3 and Chapter 4, where the report takes a holistic view of risk management.
There are many scientific and legal /regulatory angles to the pollution caused by micro and nanoplastics (MNPs). I was pleased to have been invited to be part of a scoping exercise with the European Commissions Group of Chief Scientific Advisors, following which that Group issued its initial statement early July.
MNPs is an issue where the EU undoubtedly can recognise its regulatory leadership – at the same time appreciating that the challenge is of a truly global nature (many of the worst plastics pollution issues are located in river deltas way outside EU borders). At the scientific level, studies particularly in the marine environment show cause for great concern – but not necessarily easy fixes.
I accepted therefore to be part of the SAPEA Consortium (Science Advice for Policy by European Academies) Working Group on MNPs, which will oversee in first instance the collation of the state of the art: from a regulatory as well as a scientific point of view – and subject to tight deadlines.
Autumn should be interesting.
Update 14 December 2018 Parliament failed to halt references to the innovation principle in Horizon Europe – initial report here, I shall have a post soon. Of crucial note is that Commissionner Moedas has emphasised verbatim that the innovation principle is not binding EU law: from the Politico Report: ‘“I think we have some misunderstanding here … The Horizon Europe proposal does not in any way establish the innovation principle or incorporate it into EU law. It is referred to in the recitals but it is not something that is [in] the proposal,” he said.
Moedas continued: “We need an innovation principle as we need a precautionary principle. Both are complimentary.”
Commission officials say the innovation principle does not have the same legal weight as the precautionary principle, which is included in the EU treaties.
Our paper on the innovation principle, with Kathleen Garnett and Leonie Reins is just out in Law, Innovation and Technology. We discuss how industry has been pushing for the principle to be added as a regulatory driver. Not as a trojan horse: industry knocks politely but firmly at the EU door, it is then simply let in by the European Commission. We discuss the ramifications of such principle and the wider consequences for EU policy making.
(Handbook of) EU Environmental Law (with Dr Reins), 1st ed. 2017, Chapter 2.
Repeat after me: the precautionary principle does not imply reversal of the burden of proof. Neither does it mean ‘when in doubt, opt-out’.
Allow me a succinct grumble about the precautionary principle. A recent Guardian item on trade talks post-Brexit refers ia to proponents of Brexit wanting to use future trade talks eg with the US, to ditch the precautionary principle. It states the proponents’ strategy ‘also advocates tearing up the EU’s “precautionary principle”, under which traders have to prove something is safe before it is sold, rather than waiting for it to be proved unsafe’.
Reversing the burden of proof (also known as the ‘no data no market rule’) is not a necessary prerequisite of the precautionary principle. If it were, public authorities’ task in regulating health, safety and the environment would look very different than it does today, as would the regulation of new technologies such as nano or synthetic biology (indeed even AI). Only in specific sectors, has the burden of proof been reversed. This includes, in the EU, REACH – the flagship Regulation on chemicals. In others, it was discussed (e.g. in the reform of the EU’s cosmetics Directive into a Regulation), but eventually dismissed.
Neither does the EU’s approach to the precautionary principle imply ‘when in doubt, opt out’, or ‘when in doubt, don’t do it’. One need only refer to the recent decision to extend the licence for glyphosate to show that the EU does not ban what is not proven safe (the least one can say about glyphosate is that its health and environmental safety is not clearly established). I blame Cass Sunstein’s Laws of Fear, superbly reviewed (critically) by Liz Fisher in the 2006 Modern Law Review for misrepresenting the principle – such that even its proponents often misunderstand its true meaning.
Precaution is not an alternative to science. It is a consequence of science.
EU environmental law (with Leonie Reins), Edward Elgar, soft cover edition 2018, p.28 ff.
Hang on a minute. Were not the EU and its Member States supposed to be precaution obsessed? Don’t the EU and its Member States alike adopt bans on all things GMO for no other reason than that they simply do not want them? How then can the CJEU hold in C-111/16 Fidenato that Member States do not have the option of adopting, in accordance with Article 54 of Regulation 178/2002, the EU’s general food safety law, interim emergency measures solely on the basis of the precautionary principle?
The reason lies in pre-emption, aka exhaustion, and in the balance between EU and national risk management which EU law strikes in the specific field of GM cultivation. Of note is that in the meantime most biotech companies have given up on cultivation of GM varieties in the EU.
As extremely well summarised by Bobek AG in his Opinion in the case, the formulation of the relevant EU legislation is such as to provide that post EU authorisation (here: of genetically modified maize MON 810) Member States may only take emergency measures where the continued cultivation of the approved products is ‘likely to constitute a serious risk’. While the precautionary principle may play its role fully at the level of the EU’s risk management preceding authorisation, and indeed post such authorisation, too, Member States are given less leeway in their national emergency measures. In prescribing these rules, the EU safeguards the harmonised approach to the GM varieties at issue.
(Mr Fidenato nb is something of a cause celebre among the GM community). Please note, again, that the case concerns the growing (‘cultivation’) of GM crops. Not the import, export or use of products containing GM.
Finally it is important to point out that the Court does not equate precaution with the absence of science. It is the degree of scientific certainty here which is relevant, not the absence ‘v’ presence thereof.
There is as yet no EU harmonisation on amino acids, in so far as they have a nutritional or physiological effect and are added to foods or used in the manufacture of foods. A range of EU foodlaws therefore do not apply to national action vis-a-vis amino acids, in particular Regulation 1925/2006 – the food supplements Regulation. In the absence of specific EU law rules regarding prohibition or restriction of the use of other substances or ingredients containing those ‘other substances’, relevant national rules may apply ‘without prejudice to the provisions of the Treaty’.
In C-282/15 Queisser Pharma v Germany, moreover there were no transboundary elements: Articles 34-36 TFEU therefore do not in principle apply.
No doubt food law experts may tell us whether these findings are in any way unusual, however my impression is that the Court of Justice in this judgment stretches the impact of the ‘general principles of EU food law’ as included in Regulation 178/2002. Indeed the Court refers in particular to Article 1(2)’s statement that the Regulation lays down the general principles governing food and feed in general, and food and feed safety in particular, at EU and national level (my emphasis). Article 7 of the Regulation is of particular relevance here. That Article gives a definition of the precautionary principle, and consequential constraints on how far Member States may go in banning foodstuffs, as noted in the absence of EU standards and even if there is no cross-border impact.
Article 7 Precautionary principle
1. In specific circumstances where, following an assessment of available information, the possibility of harmful effects on health is identified but scientific uncertainty persists, provisional risk management measures necessary to ensure the high level of health protection chosen in the Community may be adopted, pending further scientific information for a more comprehensive risk assessment.
2. Measures adopted on the basis of paragraph 1 shall be proportionate and no more restrictive of trade than is required to achieve the high level of health protection chosen in the Community, regard being had to technical and economic feasibility and other factors regarded as legitimate in the matter under consideration. The measures shall be reviewed within a reasonable period of time, depending on the nature of the risk to life or health identified and the type of scientific information needed to clarify the scientific uncertainty and to conduct a more comprehensive risk assessment.
Germany on this point is probably found wanting (‘probably’, because final judgment on the extent of German risk assessment is left to the national court) – reference is best made to the judgment for the Court’s reasoning. It is clear to me that the way in which the Regulation defines precaution, curtails the Member States considerably. Further ammunition against the often heard, and wrong, accusation that the EU is trigger happy to ban substances and processes in the face of uncertainty.