Posted By Ciaran McAleenan
The source of the precautionary principle is the Treaty of Rome Article 130r(2) as amended by the Maastricht Treaty which states;

"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..."

In short the precautionary principle reverses the normal burden of proof so that; "any new process or product is deemed likely to cause environmental harm unless it can be proven otherwise".

Note that although the precautionary principle is enshrined in the Treaty it only lays down a general principle upon which EC policy on the environment should be based. It does not impose a direct obligation on a Member State.

The only court reference I can turn up is an application for a judicial review;

R v Secretary of State for Trade and Industry (October 1994). The case involved an application for a judicial review of a Secretary of State (SoS) decision not to issue regulations, under the Electricity Act 1989, to restrict emmissions of electromagnetic radiation from the underground high voltage electrical cables being laid in North London (UK) as part of the national grid. The SoS judged that there was no need to impose limitation on non-ionising radiation since there was no proven case. The judicial review was applied for on the grounds that there was a possibility of risk to the environment or human health and therefore the SoS was obliged to have applied the precautionary principle.

The application was rejected, since Article 130r(2) did not oblige the SoS to apply the precautionary principle. The Court of Appeal denied leave to appeal the decision.

I trust you find this useful.

Ciaran
mailto: ciaran@confinedspaces.com