PeteFree.comMad Cows and Variant Creutzfeldt-Jakob Disease - The New Stature of the Precautionary Principle in European Law and Health Practice
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© April 2001 Peter Free
The European Court of Justice implements the Precautionary Principle (continued)
The Court rejected the British proportionality claim. [175] The Commission had taken temporary emergency action. It had acknowledged the need for scientific study and review. [176] The embargo, when compared to prohibitions already in effect, applied only to cattle under six months old born to cows of uncertain BSE status. The possibility of transmission of BSE to calves was unknown. [177] Therefore, the ban on the export of live animals was not manifestly inappropriate. [178] Similarly, spot checks in British slaughterhouses had revealed significant noncompliance with the United Kingdom's own BSE regulations. [179] Meat inevitably contained some residual nervous and lymphatic tissue, and it was still not possible to exclude the risk of transmission through muscle meat alone. [180] The ban on meat export was not, therefore, manifestly inappropriate. [181] Last, the ban on third country export was appropriate, because it was not possible to wholly exclude the possibility of re-importation or to prevent deflections of trade. [182] Proportionality had not been breached. [183]
The Court also rejected the United Kingdom's argument that the Treaty had been infringed when the Commission had discriminated between British producers/consumers and their equivalents in other states. [184] The Court agreed that Article 40(3) of the Treaty required that comparable situations not be treated differently and different situations not be treated alike, unless objectively justified. [185] Since almost all cases of BSE had occurred in the United Kingdom, its situation was not comparable to other member states. [186] No discrimination had occurred. [187]
The Kingdom's claim that the embargo was not justified by the common agricultural policy fared no better. Britain and Northern Ireland argued that the embargo had worked against increasing agricultural productivity and ensuring a fair standard of living for farm producers. Instead, it had had the effect of harming producers and consumers and destabilizing the market. [188] The Court pointed out that health protection is a constituent part of Community policy, and agricultural policy cannot ignore it. [189] Agricultural demand is dependent on health-conscious consumers. [190] Consequently, the Commission had not infringed the Treaty provision setting out appropriate common agricultural policy. [191]
With this decision, the European Court of Justice legitimated application of the Precautionary Principle in the practical realm. The Court approved the idea that government may take emergency precautionary action when harm is uncertain but possible. It also implicitly accepted the idea that undetermined or undeterminable health costs may outweigh quantifiable economic costs and the damage done to free trade. [192] Given the context in which the decision was made ─ the embargo on the export of an entire sector of goods from a member nation, not only to other Union states, but also to the world at large ─ this decision was momentous.
A December 2000 decision in Case 477/98 further expanded the precautionary umbrella that the Court had opened in United Kingdom v. Commission. The new judgment upheld the authority of individual member states to take interim protective measures under circumstances in which the European Union had adopted, but postponed implementation of, virtually identical regulations. [193] At issue was Northern Ireland's January 1998 seizure of cattle heads imported from Ireland. Eurostock, the importer, disputed the legality of the Northern Ireland regulation that prohibited importation of specified BSE risk materials. [194]
Eurostock's view was that existing Union directives [195] conferred protective power on the state of origin, not the state of destination. [196] Furthermore, member states did not have the enforcement discretion granted the Commission. [197] The United Kingdom, France, the Netherlands, and the European Commission argued the contrary. [198]
The Court held that Directive 89/662 permitted the state of destination to take interim protective measures on serious public or animal health grounds. [199] The fact that the essentially identical Commission decision had not yet taken effect did not preclude such defensive action. [200] Indeed, recitals to existing European Union legislation made it clear that there was risk in the materials seized. [201] At the time the United Kingdom regulation was enacted, BSE was a serious danger to public health. [202] Consequently, the regulation that authorized the seizure of the cattle heads was proportionate. [203] Under similar circumstances, any member state could take interim measures to protect public health. [204]
Taken together, these decisions represent a turning point in the control of infectious disease for a significant part of the world. They may also indicate European judicial receptivity to application of the Precautionary Principle in wider health and environmental contexts. Certainly, recent work of the Commission's Scientific Steering Committee indicates that the Commission is laying the groundwork for regulatory responses to possible health and environmental problems. [205]
A precautionary bias, even when agreed upon, has practical difficulties
As the BSE Inquiry implicitly pointed out, acceptance of a precautionary bias is not enough for wise policy. Practical realities continue to require recognition and intervention. Fifteen years after BSE was first recognized, enforcement of necessary prohibitions continues to be difficult. In February 2001, the European Commission's Scientific Steering Committee issued a geographical BSE risk assessment that concluded that BSE was likely to present some risk in east, central, and southern Europe. [206] In most cases, the meat and bone meal feed ban had not been put in place until recently. Even in countries with such a ban in place, leaks continue to occur. The United Kingdom seized shipments of beef containing prohibited "specified risk material" from Germany, Holland and Spain in early 2001. [207]
Part of the contamination problem lies in the difficulty of separating anatomically juxtaposed or intermingled risk tissues from the rest, part in prompting the workplace motivation to do it carefully, and part in the greed that sees the separation process as lost profit and time. Workers in affected industries are just as easily overcome with fatigue, tedium, and the "I don't cares" as the rest of us. The pace and repetition of mass production militates against the motivated precision required to spot a gram here and there of potentially risky tissue. The same problems affect enforcement personnel, who are often asked to do more than anyone is capable of doing competently. When a gram of tissue is the culprit, spot checks are necessarily going to be leaky. If capitalist self-interest [208] is thrown into the equation, it is easy to see that while BSE remains in cattle, it will necessarily leak into the feed and food chain.
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