4.4 Precautionary approach
The precautionary principle(1) de Smedt, K and Vos, E. The application of the precautionary principle in the EU. In Mieg, H A (Ed.), The Responsibility of Science. Springer Nature Switzerland AG, 2022, pp.163-186. provides strong support for a careful approach to mutual recognition in maritime regulation.(2) Gullett, W. The Contribution of the Precautionary Principle to Marine Environmental Protection: From Making Waves to Smooth Sailing? In Barnes, R and Long, R (Eds.), Frontiers in International Environmental Law: Oceans and Climate Challenges: Essays in Honour of David Freestone. Brill Nijhoff, 2021, pp.368-406. This principle is particularly relevant in situations where scientific evidence is insufficient, inconclusive, or uncertain, and where there are indications of potential unacceptable risks.(3) European Commission, 2000. Communication from the Commission on the precautionary principle, cit. above. In line with modern systems-thinking approaches to accident causation,(4) Cf. Leveson, N. G. op cit., p.75. the precautionary principle encompasses emergent hazards that arise, not purely from a single defective item or known shortfall, but also from complex interactions of otherwise compliant components. Likewise, modern probabilistic models show that partial data or uncertain failure rates can still mask high-consequence risk scenarios.
The CJEU has consistently upheld the precautionary principle in safety-related matters. Indeed, as established in Pfizer(5) Case T-13/99 Pfizer Animal Health, cit. above. and Artegodan,(6) Joined Cases T-74/00, T-76/00, T-83/00, T-84/00, T-85/00, T-132/00, T-137/00 and T-141/00 Artegodan EU:T:2002:283. the Court ruled that if there is uncertainty regarding the existence or extent of risks, EU institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent.(7) See also Case C-180/96 United Kingdom v Commission EU:C:1998:192; Case C-236/01 Monsanto Agricoltura, cit. above; C-157/14 Neptune Distribution EU:C:2015:823; Case C‑499/18 P, Bayer CropScience and Bayer, EU:C:2021:367. When it is not possible to determine with certainty the existence or extent of an alleged risk due to inconclusive study results, but there remains a likelihood of potential harm to the environment or public health if the risk occurs, the precautionary principle supports the implementation of restrictive measures.(8) Case T-719/17 FMC v Commission, EU:T:2021:143. Furthermore, the CJEU has emphasised that in matters of safety and environmental protection, discretion can be applied widely.(9) Case C-77/09 Gowan Comércio Internacional e Serviços EU:C:2010:803
In the maritime safety context this approach is particularly pertinent, given the complex and often unpredictable nature of maritime operations, where risks may not always be fully quantifiable or understood in advance. Given the potential catastrophe of maritime accidents and the increasing complexity of ship systems, this precautionary principle supports the maintenance of robust oversight and limited mutual recognition, particularly for safety-critical components. It is crucial, in this context, to remember that the maritime industry draws on centuries of best practices. A significant expansion of Article 10(1) may misalign with these practices, introducing new safety risks that the industry is not fully prepared to manage.
One might wonder whether this approach hinders the free movement of goods and services in the maritime sector. However, the CJEU has consistently held that the protection of public health (and by analogy public safety and safety for the environment) must take precedence over economic considerations.(10) Case C-183/95 Affish EU:C:1997:373. In the maritime context, where the consequence of safety failures is severe, requirements introducing additional risks should be interpreted in light of their potential consequences, even if their probability is low.
This precautionary approach aligns with the overarching goals of EU maritime regulation, prioritising safety and environmental protection, while allowing for necessary flexibility in an inherently complex and dynamic industry.