Alexandre Regniault Avocat à la Cour Simmons & Simmons Civil law perspective and the precautionary principle as a constitutional principle in France BIICL 25 September 2008 Alexandre Regniault Avocat à la Cour Simmons & Simmons

A brief history of the precautionary principle in French law

1993: the contaminated blood affair – criminal convictions and the administrative case 1995: the precautionary principle in the law – the Barnier law (art. L200-1 of the environmental Code) 1997: case law expands the application of the principle to the public health field

1998: the annual report of the administrative Supreme Court An obligation for public and private decision makers A necessity for the persons involved to demonstrate that there is no risk 2005: the precautionary principle in the Constitution – the « Charter of the environment » (Article 5)

The precautionary principle is binding on the legislative and regulatory powers

The precautionary principle is often raised in the political debates Examples : GMO Destruction of food, livestock Relies on the basis of numerous public policies (creation of agencies, pharmacovigilance)

The binding force of the principle Towards the regulatory power The principle imposes to the administration not to authorize the commercialization of products when the scientific data reveals that there is a potential but uncertain risk It allows the administration to take different kinds of measures without being expressly entitled to do so by a text The application of the principle by the French regulatory authority (Afssaps)

Towards the legislative power – the effect of the Article 5 of the Charter of the environment The review by the Constitutional Council 1st application: the decision of 19 June 2008 on the GMO law (no violation) The Attali “Report For The Liberation Of The French Growth” to the President and the Prime Minister Calls into question the precautionary principle (but this part was not endorsed by the President)

The precautionary principle and the liability of private persons / entities

The precautionary principle is in principle not applicable in disputes between private persons / entities The assessment of causality when there is no certainty on the existence of the link This question is close to the concept of precautionary principle Case law: the establishment of a causal link by “factual presumptions” leading to a reversal of the burden of proof Presumptions of law