Adjudication and the Precautionary Principle in the EU and the WTO

Judicial review of administrative use of scientific evidence when adopting precautionary measures

Literature on the precautionary principle has increased in volume over the last 15 years, ranging from observations on developments in case law, areas of application and differing views, to extensive analyses describing the value and impact of the precautionary principle as a tool for scientists, administrators and politicians. This paper does not make any assessment of the virtue, the value, or the importance of the precautionary principle. The focus is on the legal core of the precautionary principle: its effects on the law and the assessment of scientific data before the courts.

Through focus on developments of the precautionary principle in EC and WTO case law, the primary goal of this paper is by analysis to identify the impact of the precautionary principle in legal proceedings in relation to scientific risk assessments and administrative risk conclusions. The most contentious question in this respect seems to concern the level of knowledge concerning problems of causal relationships between a substance or procedure and a given hazard. An important part of the analysis is to look at the standards set by the judiciary when reviewing precautionary measures. Weighing the conflicting interests between involved parties under scientific uncertainty seems to pose a challenging and balancing task for the judiciary, especially in relation to political discretion. It seems that discretion is often placed where it furthers the treaty in question and serves integration and harmonisation.