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The Misapplication or Non-Application of the Precautionary Principle

FOUR NEW SQUARE LINCOLN’S INN. The Misapplication or Non-Application of the Precautionary Principle. Leigh-Ann Mulcahy. Requirements for principle to apply. Existence of risks: Potential risks have been identified as resulting from a product or process or action

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The Misapplication or Non-Application of the Precautionary Principle

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  1. FOUR NEW SQUARE LINCOLN’S INN The Misapplication or Non-Application of the Precautionary Principle Leigh-Ann Mulcahy

  2. Requirements for principle to apply • Existence of risks: Potential risks have been identified as resulting from a product or process or action • Scientific uncertainty: Because of insufficiency of information or understanding it is impossible to determine the existence of or to quantify the extent of the risk in question

  3. Philosophy behind principle • Common sense appeal - “better safe than sorry” • Safety/elimination of risk (cf. – public expectation of safety in Product Liability Directive) • Risk assessment/management

  4. Problems of its application • Binding legal norm (EC/international customary law) or a policy guideline? • Scope? Environmental policy Art 174(2) EC Treaty -> consumer protection and human health issues generally • No common understanding of its meaning/ application • Too much discretion left to regulator?

  5. Consequences • Impact on risk to benefit evaluation • Result may be other (greater) risks (e.g. MMR) • Manufacturer - burden of disproving risk • Increased risk of liability/JR of regulator • Non-application – use as ‘sword’? (cf. ex p. Duddridge)

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