Luxembourg, 21/05/2007 (Agence Europe) - Two judgments brought forward last week examined the primacy of the precautionary principle from different angles. In case C-252/05, the Court of Justice considered that, on the basis of this principle, waste water which escapes from a sewerage network constitutes waste. In another case (joint cases C-439/05 P and C-454/05 P), however, the advocate General did not find that the precautionary principle alone could justify exemption from Community law and allow the imposition of a ban on the cultivation of genetically modified organisms (GMOs). These two judgments reflect the appreciable legal and scientific differences between the cases.
In the first, the UK Environment Agency, a governmental body, took Thames Water Utilities Ltd (UK) to court over a series of leaks in the sewerage system, which it is responsible for maintaining. The Environment Agency considered that the company was illegally depositing waste, and, thus, was infringing Council directive 75/442/EEC on waste). Thames Water, on the other hand, contended that it was simply a leak in the system, and so was a - less serious - infringement of Council directive 91/271/EEC on waste water treatment. The Court ruled for the Agency, highlighting that the water in question had leaked after being “disposed of” by its user and before it was treated, thus confirming its status as “waste”. The precautionary principle backs up this interpretation, in that the possible damaging effect of the leakage onto the ground affected required a broad interpretation of the waste directive to be applied to the case in point. The Environment Agency welcomed the judgment; a spokesman said, “Having a range of options allows us to choose the most effective and proportionate enforcement should sewage escape”.
The second case (C-439/05 P and C-454/05 P) related to the Parliament and Council regulation 2001/18/EC on genetically modified organisms. This directive stipulates that national law must allow a case-by-case assessment of GMO cultivation and marketing projects. The Upper Austrian Region (Land Oberösterreich), however, informed the Commission of a Bill placing a moratorium on the voluntary spread and marketing of GMOs. The purpose of the Bill was to protect local fauna and flora, particularly to safeguard the considerable organic farming practised in the region. Having seen its case dismissed by the Court of First Instance (T-366/03 and T-235/04), Austria appealed to the Court of Justice, but the conclusions of Advocate General Eleanor Sharpston, published on 15 May, recommended rejection of the appeal. The precautionary principle was invoked here too, but did not prevail. Ms Sharpston considered that it was not enough to criticise, as the Austrian appeal had done, the analysis by the European Food Safety Authority (EFSA) on the grounds that it did not show enough precaution. If they were unable to specify the alleged failings or bring new proof of risk, the Austrian authorities could not, the advocate general said, rely on the precautionary principle alone to adopt legislation systematically banning GMOs in Austria. If the Court accepts these conclusions, as happens in most cases, Austria will be required to come into line with directive 2001/18/EC. (cd)