To understand why the Mercosur agreement puts the precautionary principle at risk, we need to take a few steps back and retrace the stages that led to its development.
Sustainable Development
The expression sustainable development was coined to address a very concrete problem. For decades, it was assumed that economic growth could proceed without regard for its consequences on the environment, but over time, and due to various environmental disasters that also affected citizens’ health, it became clear that pollution, loss of biodiversity and the exploitation of resources produce costs that are not only ecological, but also social and economic, and often difficult (or impossible) to repair.
The turning point came in 1987 with the Brundtland Report , Our Common Future, which provided the first definition: “sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.
That definition already contains two powerful ideas that subsequently entered legal language: intergenerational equity (not passing on to future citizens the costs of today’s choices) and integration (environment and development are not two separate entities, but fundamental and equal parts of the same public decision).
In the years that followed, sustainability evolved from an ideal concept into a global cornerstone.
An important milestone is the United Nations 2030 Agenda (2015), which brings together economic, social and environmental goals into a single political agenda.
The Treaty on European Union (TEU), in Art. 3, para. 3, identifies the sustainable development of Europe as an objective of the Union: “The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.”
Rio 1992: Sustainability Enters International Law and the Precautionary Principle Is Born.
While the Brundtland Report provided the definition of sustainability, the Rio Declaration on Environment and Development of 1992 set out a series of principles that still resurface today in treaties and disputes: cooperation, responsibility, and integration of policies.
That document contains Principle 15 of the Declaration, the precautionary principle, which stems from the idea that, in the face of serious or irreversible risks, scientific uncertainty cannot be used as an excuse for inaction, thereby allowing the environment and future generations to be irreparably harmed by a failure to prevent something.
The Rio Declaration established a crucially important rule: do not wait for the final scientific study or the ultimate proof when the stakes are high and the damage may be irreversible.
The Precautionary Principle Today
In EU law, the precautionary principle is not a slogan but a decision-making rule: if there are serious indications of risk to the environment or public health and the science is still uncertain, the Institutions may adopt preventive measures without having to wait for full scientific certainty or irrefutable proof of a causal link.
This is provided for by Art. 191, para. 2 of the Treaty on the Functioning of the European Union (TFEU), according to which:
Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.
- by Art. 11 TFEU, according to which the requirements of environmental protection must be integrated into all Union policies, in particular in order to promote sustainable development;
- by Art. 168, para. 1 TFEU, which guarantees a high level of human health protection in all Union policies and activities;
- by Art. 114, para. 3 TFEU, according to which when harmonising rules for the internal market, the Commission must take as a base a high level of protection in the fields of health, safety, environment and consumer protection;
- by the EU Charter of Fundamental Rights, Art. 35, on health protection, and Art. 37, on environmental protection in the context of sustainable development.
The precautionary principle thus arises from an evident reality in which science often advances incrementally, while public decisions must be made quickly.
If the risk is plausible and the potential damage serious, decisions must be taken before it is too late.
The European Commission, in its 2000 Communication on the Precautionary Principle, clarifies that the aim is not to replace science but to manage uncertainty: first, the risk is assessed using available data; then, if significant uncertainty remains, measures that are proportionate, consistent, non-discriminatory and subject to review in light of new knowledge may be adopted.
Why the Mercosur Agreement Undermines the Principles of Sustainable Development and Precaution
Mercosur was established by the Treaty of Asunción (26 March 1991) between Argentina, Brazil, Paraguay and Uruguay. The trade agreement with the European Union is controversial precisely because it affects sustainability and the precautionary principle.
One of the most glaring examples is the chapter on sanitary and phytosanitary measures (referred to by the acronym SPS), which constitutes a set of rules on food safety and the health of animals and plants that can affect trade.
The SPS Agreement of the World Trade Organization (WTO) does recognise the right to protect health, but requires that measures be grounded in scientific evidence and risk assessments, in order to prevent disguised protectionism.
The SPS chapter of the EU–Mercosur agreement reflects this far less precautionary WTO approach. Indeed, it ties health protection measures to rigorous scientific and risk assessments. The precautionary principle therefore risks reverting to what it was conceived to be at the Rio Conference, namely a principle of soft law.
But if the Union has decided, by incorporating Art. 191, para. 2 into the TFEU, to base its environmental policy on precaution as well, the matter inevitably becomes of primary importance.
If sustainable development is an objective of the Treaties and precaution is a principle of European law, a trade agreement cannot disregard them and must therefore afford them full relevance.
Animal Welfare Trampled Upon
With regard to animal welfare, which is also closely linked to the precautionary principle, the EU–Mercosur Agreement introduces only one truly binding clause, and it covers only fresh eggs.
For market access of this product in the EU, a certificate of compliance with, or equivalence to, EU standards is required; however, for far more sensitive and controversial products, such as beef and poultry, it is only stipulated that on-site inspections decided by the Commission will be carried out.
The cases of BSE and avian influenza have shown us how closely animal welfare is linked to food safety and public health. The precautionary principle is — or rather should be — therefore imperative in this context.
Yet here too, the Commission has preferred to make the agreement as soft as possible, going so far as to delegate the application of European standards on animal welfare by Mercosur countries to a long-term dialogue and a working group — which may look good on paper but completely strips animal protection, environmental protection and public health protection of any real effectiveness.
The referral to the European Court of Justice, which we discussed here, is therefore a recourse that represents the extrema ratio to draw attention to the risk of weakening cornerstone principles of European law such as the precautionary principle.
A concrete risk and a dangerous drift.