Get Arbitrary and Capricious: The Precautionary Principle in the PDF

By Gary E. Marchant, Kenneth L. Mossman

ISBN-10: 0844741892

ISBN-13: 9780844741895

This research examines how the ecu Union has used the precautionary precept in felony judgements.

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Extra resources for Arbitrary and Capricious: The Precautionary Principle in the European Union Courts

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17 The commission gave this rather cryptic rationale for why the precautionary principle does not apply to traceability and labeling regulations: The precautionary principle relates to the risk analysis of products and is accounted for as part of the approval process under the authorizing legislation. . Any safety measures to 01_3 Chapter 3 7/16 8/4/04 8:26 AM Page 26 26 ARBITRARY AND CAPRICIOUS protect human health and the environment arise directly from this authorising legislation. Traceability is not a “safety measure” per se but can be used to “facilitate” the application of other measures, such as product withdrawals and monitoring, as a means to ensure safety.

It has therefore been left to the community institutions to define and apply the precautionary principle. 4 This communication represents the most detailed description of the precautionary principle by any official government body anywhere in the world to date. Yet, while providing useful insight into the meaning and application of the precautionary principle, the commission’s communication has two serious limitations. First, it fails to answer many central questions about the meaning of the precautionary principle.

12 Of course, no regulatory agency is required to wait until the “reality and seriousness” of risks from a product become “fully apparent” before taking regulatory action. Such a position would, for example, preclude any premarketing regulatory authority. The vague definitions of the precautionary principle offered by the EU courts thus contribute nothing toward better elucidation and understanding of the meaning of the precautionary principle and raise serious doubts about the consistency and transparency of applying such an undefined concept in a legal setting.

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Arbitrary and Capricious: The Precautionary Principle in the European Union Courts by Gary E. Marchant, Kenneth L. Mossman


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