The Concept of Precaution as Shaped by the Courts
Judicial Lawmaking and Administrative Law, F. Stroink & E. van der Linden (eds.), Intersentia, Antwerp-Oxford, 2005
25 Pages Posted: 6 Nov 2013
Date Written: November 5, 2013
Abstract
It cannot be denied that the Dutch administrative courts judge cases which deal with ‘uncertain risk’. It is interesting to see what review criteria the courts use in these cases. One of the legal questions that arise when thinking about the content, possible codification and application of the precautionary principle is how the principle relates to already existing general principles of administrative law. Conceivably, these procedural and substantive principles already carry weight in situations in which decisions must be taken on the existence of uncertain risk. The duty of care already applicable in Dutch law would in that event require the administrative authority to take great care in gathering information on the possibility of the risk occurring and the impact thereof; the principle of proportionality would then require a balanced weighing up of, on the one hand, the disadvantages of stopping a particular act and, on the other, the possible risk the act carries; and the reasoned-decisions principle would require that the decision was underpinned by conclusive and convincing reasoning. In many cases, it is really not feasible anyway to treat the general principles of administrative law separately; often, there will be a relationship. The question then is how the precautionary principle can be related to these general principles. This is the central question in this discussion of judicial review by the Dutch administrative courts of cases relating to uncertain risk. Following an explanation of the role the precautionary principle already plays in Dutch administrative justice, a number of decisions on uncertain risk are discussed and an analysis is made of the review criteria employed by the Dutch administrative courts. In addition, two judgments by the European Court of First Instance are introduced, in which the Court for the first time expressly tested against the precautionary principle. An analysis will be made of the relation between the content and application of the precautionary principle on the one hand and of the general principles on the other.
Keywords: precautionary principle, case law, uncertainty, Dutch law
JEL Classification: K32, Q58, Q53
Suggested Citation: Suggested Citation