Modern technological and industrial progress increasingly challenges the protection of the internal market to take into consideration damages to human health and environment that this progress can entail. This challenge is more salient when it comes to chemical industries, and this is where principles of prevention and precaution, which take part of modern legal systems, emerge as a potent legal tool. However, it is important to distinguish these two concepts. The principle of prevention applies to the cases where the degree of certainty of risk is high, while the precautionary principle applies to unquantifiable and potential risks. According to the Commission’s White Paper on the future chemicals policy in the European Union (2001), the precautionary principle should be invoked whenever there is an indication of unacceptable risk. The Paper states that ‘‘whenever reliable scientific evidence is available that a substance may have an adverse impact on human health and the environment but there is still scientific uncertainty about the precise nature or the magnitude of the potential damage, decision-making must be based on precaution in order to prevent damage to human health and the environment’’.
The precautionary principle is largely incorporated in EU’s legislation, in particular, in its secondary legislation, without, however, proposing criteria of ‘serious’ and ‘irreversible’ damage, conditioning the precautionary principle. This includes the EU Regulation on Registration, Evaluation, Authorization, and Restriction of Chemicals (REACH), which is a perfect example of precautionary principle dominating a legislative act. The precautionary principle is recurrent in REACH, and it is even stated in Article 1(3) that the Regulation is “underpinned by the precautionary principle”. As for envisaged measures, for instance, manufacturers and importers have to demonstrate that chemical substances that they are commercialising can be used safely before they can be marketed in the EU. REACH also requires industry to assess the data it has gathered and to implement as well as recommend risk management measures for all substances manufactured/imported within specific quantity. Furthermore, the regulatory authorities then carry out further data evaluation, risk-assessment and risk management for selected substances, as needed.
REACH requires companies to provide Risk Management Measures when test data for the substances are as yet unavailable, and to seek authorization to use Substances of Very High Concerns, and the possibility of restriction. It is generally advised to use the most restrictive value available, which seems to be the most protective of human health and the environment.
However, the precautionary principle seems to be far from bringing consensus among different stakeholders of chemical domain. If most of them believe that this approach help to avoid damages to population and environment, some warn against unnecessary regulatory burdens, claiming that this prevents chemical industry from delivering better results. Furthermore, while applying the precautionary principle, the legislator focuses more on negative effects of the regulated issue rather than on positive ones. This also provides the legislator with possibility of arbitrary treatment of industry subjects.
Ultimately, by applying the precautionary principle the legislator is guided by the approach according to which, “overreacting is better than lack of reaction”, or “it’s better to be safe than sorry”.
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