New book shows precautionary principle will ‘wreak havoc’ in Europe

The precautionary principle is a policy concept that tries to avoid risk, both real and imagined. It has been used to justify European Union regulation and laws, but because it is an ill-defined concept, it has lead to arbitrary decisions, creating problems for future case law and jurisprudence. It is used most often in cases dealing with environment, technology, safety and health policy issues.

Proponents of the precautionary principle – including the EU bureaucracy, academics, NGOs, and even some businesses – argue that ‘it’s better to be safe than sorry’. They have often touted the fact that the Europe Union has been on the forefront of integrating the precautionary principle into core policy issues pertaining to health, safety and the environment.

A new book published by International Policy Network -- Arbitrary and Capricious -- charges that the EU’s reliance on the precautionary principle has not made Europeans better at managing risk through policy.

‘No one can argue against being safe rather than sorry’ writes Professor Marchant, co-author of Arbitrary and Capricious. ‘But the precautionary principle is flawed in theory and practice, and its enshrinement sets Europe down a path that will wreak havoc on the economy and public health of not only itself but also its trading partners.’

Arbitrary and Capricious analyses decisions by the European Union courts, including the EU Court of First Instance and the European Court of Justice, demonstrating that the precautionary principle has been inconsistently applied in at least 60 court decisions. By failing to provide a consistent application of the precautionary principle, it has generally been applied in an unreasonable and often unpredictable manner. ‘The principle can only remain politically viable while it remains nebulous,’ write the authors.

‘Proponents of the precautionary principle see power in its ambiguity. It gives regulators and courts unlimited discretion, enabling them to use it to justify malevolent motives,” concludes Professor Marchant. ‘The ambiguity of the precautionary principle undermines transparency, accountability and fundamental principles of jurisprudence. Inevitably, the “principle” provides a shaky foundation for Europe’s legal decision-making. It will collapse on itself – but not before it does serious harm to Europe’s economy and society.’

*Arbitrary and Capricious: The Precautionary Principle in the European Union Courts
PDF available for download