Identifier
Created
Classification
Origin
09BRUSSELS521
2009-04-07 12:45:00
UNCLASSIFIED
USEU Brussels
Cable title:  

PRECAUTIONARY PRINCIPLE: SENTENCE FIRST, VERDICT

Tags:  EAGR ECON EFIN EFTA ETRD EU 
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ZNR UUUUU ZZH
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FM USEU BRUSSELS
TO RUEHC/SECSTATE WASHDC
INFO RUCNMEU/EU INTEREST COLLECTIVE
RUCNMEM/EU MEMBER STATES COLLECTIVE
RUEHRC/DEPT OF AGRICULTURE WASHDC
RUCPDOC/DEPT OF COMMERCE WASHDC
UNCLAS SECTION 01 OF 03 BRUSSELS 000521 

SIPDIS

STATE FOR EUR/ERA KESSLER
STATE PASS TO USTR CHRIS WILSON
STATE PASS TO OMB BECK, MANCINI
STATE PASS TO CPSC O'BRIEN

E.O. 12958: N/A
TAGS: EAGR ECON EFIN EFTA ETRD EU
SUBJECT: PRECAUTIONARY PRINCIPLE: SENTENCE FIRST, VERDICT
SECOND

UNCLAS SECTION 01 OF 03 BRUSSELS 000521

SIPDIS

STATE FOR EUR/ERA KESSLER
STATE PASS TO USTR CHRIS WILSON
STATE PASS TO OMB BECK, MANCINI
STATE PASS TO CPSC O'BRIEN

E.O. 12958: N/A
TAGS: EAGR ECON EFIN EFTA ETRD EU
SUBJECT: PRECAUTIONARY PRINCIPLE: SENTENCE FIRST, VERDICT
SECOND


1. (U) SUMMARY. At its quarterly meeting in Brussels March
31, the European Risk Forum focused its roundtable discussion
on the precautionary principle, with Commission and European
agency officials, private sector representatives, academics
and others weighing in. The discussion, which was less a
debate about the merits of the principle and more about its
proper use, was highlighted by robust exchanges which led to
general conclusions that the EU had gone far enough in its
use of precaution, that benefits needed greater consideration
in impact assessments, and that prudent caution need not lead
to bans of products if other options are available and if
there is not yet compelling evidence that demands drastic
measures. Indeed, there was general agreement that excessive
use of the precautionary principle should be avoided, lest it
stifle innovation, but with health and environmental concerns
paramount in the decision-making process. END SUMMARY.

Background
--------------


2. (U) The European Risk Forum (ERF) convened its first
quarterly meeting of 2009 on March 31 in Brussels. ERF is a
Brussels-based think tank well known to Mission and
Washington risk managers and analysts as an objective
promoter of high quality risk assessment and management, a
vigorous interlocutor with EU institutions and officials, and
a strong supporter of science and fact-based policy making.


3. (U) In addition to the precautionary principle, other
items on the March 31 agenda included a review of ERF's 2009
work plan, a discussion of emerging trends in risk management
at the EU level, and a presentation on risk communication.
The signal event of the meeting, however, was the roundtable
on the precautionary principle, the risk-focused principle
used by EU regulators to guide their assessment and
management of risk. While not a spirited debate per se, the
conversation was quite robust, focused more on the proper
uses of the principle in the guidance of crafting policy
rather than whether or not a precautionary approach should be

in the toolbox at all.

Definition
--------------


4. (U) Harrie van Dijk from the Dutch Health Council opened
the roundtable and offered two definitions of the
precautionary principle. He said the definition accepted in
European jurisprudence is the following: where there is
uncertainty as to the existence or extent of risks to human
health or the environment, the institutions may take
protective measures without having to wait until the reality
and seriousness of those risks become fully apparent. To put
it more simply, said van Dijk, the precautionary principle is
the anticipatory exercise of caution with a view to
preventing something undesirable.


5. (U) Van Dijk suggested the principle was more a process
than a decision rule, and said the key to applying it was to
find balance between caution and progress. He cited cell
phones as a good example: despite some evidence linking cell
phone use to some cancers, the EU would never think to ban
them unless a strong and irrefutable link was established.
Risk managers will continue to monitor the situation, van
Dijk said, in a cautionary, rather than a precautionary
manner. But in general, he said, the ultimate challenge was
to produce a fair distribution of cost and benefits across EU
citizenry and future generations while ensuring that risks to
health and environment never outweigh the benefits. He
suggested the principle be regarded as a strategy for dealing
with uncertainties, and, as such, should be applied to all
health related issues and to issues with considerable
uncertainty. Returning to the need for balance, he warned
against the undesirable consequences of both excessive and
insufficient caution and suggested that banning and/or
exclusion of products or substances should be seen as last
resorts.

Jurisprudence
--------------


6. (U) Alberto Alemanno, Associate Professor of Law at the
Ecole des Hautes Etudes Commerciales (HEC) in Paris,
presented the first of two views on jurisprudence and the
principle. Alemanno said the BSE crisis of the 90s shaped

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earlier decisions regarding the principle in European
Community courts, prompting the courts to err on the side of
caution in cases regarding risk management and awareness. A
key ruling issued in 2002 by the EU Court of First Instance
in the case of Pfizer-Alpharma reinforced the EU's legal
framework for applying the principle, reaffirming that
precautionary action can be justified in appropriate
circumstances and clearly defined the conditions triggering
its application. He said that as agencies such as the
European Food Safety Agency (EFSA) and the European Chemicals
Agency (ECHA) have been established, the Commission has taken
the lead in risk; nonetheless, courts have also ruled there
is clearly no supremacy of "Euro science" over national
science and when there are uncertainties in scientific
research, member states can "decide what degree of protection
. . . they intend to ensure." But Alemanno stressed that
courts have also ruled that the principle of proportionality
must be applied as well, and that a member state measure will
be considered disproportionate "if it is manifestly
inappropriate or when it may be shown that other, less
onerous measures" are available.


7. (U) Commenting on a study of the principle and EU case
law, Michael Rogers, from the International Council of Amino
Acid Science, said the results are mixed in terms of how and
when the principle should be applied. According to his
study, 140 cases involving the principle were heard from
1995-2008, half of which the study deemed significant. Those
decisions said that the principle should be
non-discriminatory, applied consistently, take into account
both costs and benefits, and should be subject to review in
the face of new evidence. On disproportionality, he said,
one case was decided in favor of member state competence,
another in support of the Commission's lead. But in a 1999
case, the European Court of Justice (ECJ) ruled that a member
state was not obliged to give its consent to allowing the
sales or cultivation of genetically modified organism (GMO)
products if it had new information regarding risk. On the
other hand, he said, a European court has never asked a
member state to go back and do more risk assessments before
applying the principle. Rogers said the Commission should
issue a new Communication regarding the principle, one that
might encourage alternate approaches to risk management that
fall short of keeping products from the market. Regardless,
Rogers thought the major consequence of strictly applying the
precautionary principle - sentence first, verdict second -
was vulnerable to modification in the courts in the long run,
adding that an expected high number of cases due to the new
REACH regulation may well provide such a test.


8. (U) The roundtable concluded with a presentation from
Bjorn Hansen, DG Environment. (Note: Hansen is the new chair
of the OECD's Working Party on Manufactured Nanomaterials and
is former director of the European Chemicals Agency. End
Note) Hansen cited two case studies, both involving flame
retardants, as examples of how the principle, correctly, was
and was not invoked. In one study, the EU had conducted risk
assessments that suggested five to ten years were needed to
generate enough data to accurately assess the safety of the
chemicals. Based on the risk assessments and invoking the
precautionary principle, the EU decided to ban at once and
not wait for further evidence. On the other hand, said
Hansen, was the risk assessment for another flame retardant,
which could not conclude that there were any risks to health,
but suggested another 10 years would be needed to prove
long-term safety. In this case, said Hansen, the Commission
did not invoke the principle, and the product was approved
for sale. He said, on balance, the EU has not gone too far
in its invocation of the principle, but has gone far enough.

Comment
--------------


9. (U) While not a debate per se, the roundtable illustrated
the varied perspectives on the precautionary principle within
Europe. It is clear that while some EU regulators strive to
find a balance between caution and precaution, legislation
such as REACH and other similar measures (the Toy Safety
Directive, the Novel Foods Directive) that are firmly
grounded in the precautionary principle may provide future
judicial grist to modify use of the principle and ensure its
proportionate application. Nonetheless, the precautionary
principle is here in Europe to stay, and with hot-button
issues such as GMOs, nanotechnology, and cloning still under

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discussion and vulnerable to guilt by association, continued
USG efforts to encourage a process in which evidence-based
science leads to a fair verdict on risk before a sentence is
pronounced remain vital.
.