Are FTAs challenging EU’s precautionary principle?

BDI-KAS-Series on International Trade

On 15 June 2016, the 30th sessions of the Joint BDI-KAS working Group on 'International Trade' addressed FTAs and the question whether they might water down the precautionary principle of the EU.

Are Free Trade Agreements (FTA) challenging EU’s precautionary principle? This was the topic of the second BDI-KAS-International Trade workshop that took place on 15 June 2016 at the European Office of the Konrad-Adenauer-Stiftung. During the last year the debate in Europe about the opportunity of free trade agreements got more and more controversial. Although modern free trade agreements of the European Union promise growth and jobs by eliminating tariff and non-tariff barriers and by breaking new grounds in the area of regulatory cooperation and harmonization, critics fear that they would pose risks for consumers, workers and the environment. They argue that those comprehensive and ambitious treaties might water down the precautionary principle in the EU.

Prof. Dr. Reinhard Quick (Head of European Office, German Chemical Industries Association), Dr. Till Patrik Holterhus (MLE., Senior Research Fellow at the Institute for International and European Law, Georg-August-University of Goettingen) and Ulrich Weigl (Deputy Head of Unit D3, DG Trade, European Commission) participated as speakers at our workshop and discussed about the position and the legal boundary of the precautionary principle in FTAs.

Precautionary principle means that in case of existing or potential hazards or conditions – that could reasonably be expected to cause damage – the lack of full scientific certainty shall not be used as a reason to postpone protective measures.

Article 205 TFEU obliges the EU’s foreign trade policy to be guided by the objectives listed in Article 21 TEU. Consequently, the European Union has to define and pursue common policies and actions in order to foster the sustainable economic, social and environmental development of developing countries and help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development.

In academia and practice there is a debate whether Article 21 TEU is imposing a legal obligation on the EU’s foreign policy actors at all.

Nevertheless, Article 191 § 3 TFUE leaves place for interpretation: In preparing its policy on the environment, the European Union has to consider scientific and technical data, environmental conditions in the various regions of the Union, the potential benefits and costs of action or lack of action, the economic and social development of the Union as a whole and the balanced development of its regions.

All speakers agreed that the European Union will not conclude a FTA without imposing the precautionary principle. The ongoing problem is that, on the one hand, the European Union wants to keep its regulation, but - on the other hand - possibilities are needed to handle the trade-partners. A balance has to be found and more concrete, practical examples have to be presented in order to persuade the population of the advantages of FTAs.

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