On January 26, 2016, during a public meeting organized by the Trans-Atlantic Consumer Dialogue, the European Commissioner for Trade, Cecilia Malmström, said that the precautionary principle (PP), the principle which enables rapid response in the face of a possible danger to human, animal or plant health, or to protect the environment, is a fundamental rule in the European policies and its compliance is ensured both in the legislative process and trade agreements. Therefore, the principle is central to the negotiations surrounding the Trans-Atlantic Trade and Investment Partnership (TTIP). Despite verbal assurances given by Commissioner Malmström, who has radically excluded a possible lowering of PP standards in Europe, the issue deserves to be addressed more carefully.
Europe is often considered more precautionary than the US. A comparative analysis demonstrates that the difference between the two approaches rests on the perception of risks that characterize social realities, and not by the will to apply the principle more or less intensely. As the most careful doctrine already showed, if a wide variety of situations where there is a need for precautionary measures are analyzed, it may be found that application of the the principle in US law is not all that dissimilar to what we see in the European context. Compared to Europe, US regulations adopt a lower level of precautionary protection in certain areas while a more widespread application is afforded in other areas where EU law has not applied the principle.
The main difference between the two approaches is the way in which US and EU apply the PP: in Europe a risk-assessment process under which restrictive measures are applied only if a serious risk is identified prevails. In the US, a cost-benefit process characterized by a monetary basis assessment that relies more on financial costs than on social benefits prevails, thus making the adoption of restrictive measures more difficult. Another significant difference between the two legal systems relates to the field of application. In Europe, the PP was first introduced in the field of food safety. It was subsequently codified in the Maastricht Treaty as a general principle of law applicable to environmental policies, and finally, has been applied to occupational safety. In the US, the PP was first applied to occupational safety, and then to the protection of the environment, but it was never been applied in the area of food safety.
The precautionary approach in US and EU law: a comparison
Chronologically, the legal and judicial development of the PP first began in the US: the federal law on the protection of health and safety at work, the Occupational Healthy and Safety Act (OSHA) of 1970, sets out a minimum standard of precautionary protection. Subsequently, the Court of Appeals of Washington D.C. enlarged its scope of application in two important judgments (see Industrial Union Department, AFL-CIO v Hodgson of 1974 and The Society of Plastics Industry, Inc. v Occupational Safety and Health Administration of 1975) which have led to further development of the PP in US law. These decisions were taken into account by the Federal Environmental Protection Agency (EPA) when drawing up new regulations on air pollution and toxic substances (Clean Air Act of 1970 and the Toxic Substances Control Act of 1976).
In EU law, the judicial and legal development of the PP came later, during the 1980s. The European Court of Justice (ECJ) explained its interpretation of the PP in the Sandoz case of 1983. Almost ten years after the Court established the legal meaning of the PP, the Treaty of Maastricht (1992) formally recognized it in Article 130r (2) TEU. Then, the PP became crucial to EU law in a case relating to the bans imposed by the European Commission (EC) on the importation of beef from the United Kingdom to prevent the spread of the Bovine Spongiform Encephalopathy (BSE) virus, mad-cow disease, from animals to humans. A comprehensive explanation of the PP was then introduced by the Commission Communication of 02/02/2000. Meanwhile, the EFTA Court also gave its interpretation of the PP (see EFTA Surveillance Authority v Norway of 2001) and the two European courts have subsequently kept the judicial dialogue alive in several judgments, until the most recent cases of Philip Morris Norway AS v Staten v/Helse of 2011 and Acino v Commission of 2014, where both courts favored a broad application of the PP.
Therefore, the US was the first to introduce precautionary protections into its legislation and, according to the flip-flop hypothesis, which theorize a sort of turnover in the PP’s application between the EU and the US (see Vogel, “Ships Passing in the Night: The Changing Politics of Risk Regulation in Europe and the United States” Robert Schuman Centre for Advanced Studies, European University Institute, Working Paper 2001/16), it provided the grounds for more comprehensive precautionary protection in the US from the 1970s to the mid-1980s while, since then, Europe has become more precautionary.
It must be said that the US, as a state entity, has a unitary precautionary regulation, while the EU, as a supranational body, cannot express a single approach on this issue. In addition, the reality of precaution shows that the flip-flop hypothesis should be rejected because no clear patterns of convergence or divergence can be identified in risk regulation between the EU and the US. Yet, a comparative analysis of different areas where there is a need for precautionary measures confirms that the US law has applied the PP no less intensively than EU law.
For example, in the nuclear energy sector, the PP is applied in Europe and in the US in a similar way, although the safety standards for nuclear activities required in Europe both by the European Atomic Energy Community (EURATOM) and states are more stringent than in the US. Nevertheless, in some cases, the US precautionary approach seemed to be higher than the European one, as shown by the Yucca Mountain case, where the EPA refused to apply a cost-benefit analysis and adopted a precautionary policy to avoid the possible occurrence of an environmental catastrophe even in the absence of scientific certainty.
In the food safety sector, the EU has shown itself to be more precautionary by imposing bans on beef treated with hormones, products which are legally produced in the US. However, the decision of the WTO’s Appellate body (AB) showed that the WTO shared the US approach on food matters, acknowledging the application of restrictive measures only in cases where potential risks to human health are proved by more than a mere possibility.
In the field of marine environmental policies, the EU supported stronger application of the PP against marine pollution while the US, on this point, has never adopted a genuine precautionary approach, intervening only on a preventive basis to avoid the occurrence of scientifically proved harms. However, in terms of protection of marine biodiversity, the US adopted a strong precautionary policy in the area of fisheries by prohibiting the carrying out of fishing activities in a large section of the Arctic sea close to Alaska. Fishing authorizations in Europe have always been very permissive resulting in excessive activities and negative impacts on marine ecosystems.
In climate change policies, the measures taken by the US to reduce stratospheric ozone depletion have been implemented more strongly than in the EU, but the latter has been more active in combatting global warming. The US has banned the use of substances classified as chlorofluorocarbons (CFCs) since 1978. Comprehensive regulation of these substances is still missing in Europe despite the fact that some significant acts have been introduced from the 1990s. Instead, global warming policies have been part of the EU political agenda since the mid-1980s, and the Union played an active role in the fight against climate change both through its own programme, and its role in the framework of the United Nations Convention on Climate Change of 1992 and the subsequent Kyoto Protocol of 1997.
Lastly, in the automotive industry the US adopted precautionary measures in order to reduce lead emissions from the 1970s while the EU only began to adopt such measures in the 1990s. The introduction of unleaded petrol in 1989 and the subsequent adoption of the Euro I – Euro VI standards have substantially contributed to the reduction of air pollution from cars in Europe, through the use of selective catalytic reduction technologies (SCR) or exhaust gas recirculation (EGR).
Therefore, a comparative analysis of the PP’s application shows that in lieu of thinking in terms of precautionary supremacy, the main differences between the two legal systems are the perception of risks which are greatly influenced by cultural and social factors, and the heightened degree of media attention afforded to certain events over others.
In this context, the PP’s application provides an interesting ground of potential convergence under the TTIP negotiations. This treaty, instead of being seen as a means to lower the level of protection, sacrificing the precautionary protection to gain economic advantages could be seen as a useful tool for harmonizing the two regulatory systems, strengthening regulatory cooperation and ensuring greater transparency on the use of the PP. In addition, the TTIP might be an incentive for harmonizing the precautionary approaches not only between the EU and the US, but also among European countries. However, these are undoubtedly troubled times for the ongoing TTIP’s negotiations and the practical effect that this agreement could have on the PP’s evolution is still to be verified. At the moment, the question cannot be examined in more detail since the bargaining is confidential and the public, both in Europe and in the US, are not privy to the exact terms of the negotiations. As a result, all debates concerning technical and commercial profiles of the TTIP, such as those relating to the precautionary approaches, but also the regulation of food production, agriculture and arbitration, suffer a lack of certainty due to the still early stage of the bargaining.
If the regulatory framework of the TTIP is still unclear, what can at least be observed is its strategic and geopolitical dimensions. It is known that a commercial treaty, especially when it concerns two parties of such importance, is also a powerful tool of foreign policy. From the US side, the will to conclude the TTIP is directly linked with the similar Trans Pacific Partnership (TPP) agreement in the Pacific region. In both cases, it is quite clear that the US goal is to increase economic cooperation with Europe and the East, excluding from this rising framework the two major political and economic competitors of the US: the Russian Federation and the People’s Republic of China. Looking ahead, TTIP and TPP are designed to strengthen the links between the signatory countries and the US, ensuring the latter maintains its position as the dominant global economy. In this sense, if the benefits are clear for the US, the dark side of the moon seems to affect Europe. Hypothetically, the TTIP could have the function of countering the crisis and pushing the EU member states to cooperate more closely, as was done almost seventy years ago with the Marshall Plan and NATO’s creation. But today, times have changed and the ongoing crisis that characterizes relations between European states shows that Europe’s problems cannot be solved through external interventions, particularly when these are not motivated by pure helpfulness. Therefore, not only commercial reasons, but also geopolitical and strategic intentions, should be taken into account by authorities, governments and public opinion to express more comprehensive thoughts about the real opportunity conclusion of the TTIP offers.