The "Myth" of Precaution

During the last two decades, precaution has been dealt with by law scholars as it was a sort of myth. Its historical formal expressions, first in the EC Treaty (about the European environmental policy) and then in the European general food law (in Article 7 of EC Regulation No 178 of 2002) often has been described as the recognition of a new legal principle, a somewhat revolutionary novelty in EU food legislation. Consequently, it became the subject of a huge and impressive “production” of theoretical studies by law doctrine all over the EU. For years, it seemed that no new issue of a law journal, especially if concerning matters such as food law, risk regulation, market law, and public policies on food, risk and market, could have been published unless an article or a comment had been dedicated to this new, groundbreaking and thundering principle. This essay is not aimed at challenging, nor at questioning, the importance of the values which such principle tends to protect, but rather is aimed at affirming the likely overestimation of the importance of its expressed codification. The analysis is carried out by trying to demonstrate how the same results can be achieved on the basis of another more consolidated EU law principle – namely, proportionality – dating back to a pre-precautionary era. It tries to show how EC Court of justice usually recognized the lawfulness of EC Institutions’ acts and decisions, made in typical precautionary situations, basing on proportionality criteria when an expressed precautionary principle still didn’t exist. And how EC Commission succeeded in proving that a precautionary approach is clearly implied in the legal concept of proportion. In this perspective, the main role played by the codification of the precautionary principle has been facilitating the dispute resolution when dealing with the application of proportionality to scientific uncertainty and, this way, perhaps reducing the litigation on trade restricting measures adopted without a solid science-based risk assessment. A sort of confirmation of the thesis above could be found in the “casual” references to precaution, sometimes made by the EUCJ in last years: they seem to be the signals of a frenzy to use precaution even when recalling it is inappropriate, or – in other cases – of an immature elaboration of it by judges, rather than an indication of a real vitality of this principle.