From a speech by EU trade commissioner Cecilia Malmstrom:
I'd like to talk about three benefits in particular but the theme of today's event is the precautionary principle, so let me say a few words about that first.
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As a starting point, it's good that you raise this issue because I think it goes to the heart of the debate on this agreement.
When I travel across Europe it's raised all the time. That discussion -- whether it's about regulatory cooperation or investment protection -- ultimately comes down to how a trade agreement like TTIP interacts with domestic policies.
And the precautionary principle is a central tool for us in Europe - though not just in Europe - when we decide what kind of policies we are going to have. It's been an important principle of our approach to law-making in the European Union for many years.
And, as far as environmental legislation is concerned, it's written into the Lisbon Treaty. So I fully understand why people would be concerned if they see a threat to how the precautionary principle and how it operates in Europe.
And this is one area where the Commission has been listening to people's concerns and reacting to them.
That's why we have made an explicit public pledge in the Trade for All strategy that we released last October.
It applies to all our agreements, not just TTIP, and it has three elements:
- First, no trade agreement will ever lower the levels of consumer, environmental or social and labour protection we decide on in Europe. That means that nothing in TTIP will touch the precautionary approaches we have taken to regulating in the past.
- Second, if ever a trade deal did make a change to the levels of protection the EU offers its citizens, that change can only be upward. That means any change would lead to more, not less precautionary approaches.
- And third, nothing in trade deals will limit the EU's right to make new policies in the public interest. That's the most important part. When it comes to the intensified regulatory cooperation we want to see in TTIP - it will not change our precautionary approach. We want more discussion between regulatory authorities. But we will always insist that they are free to go their own way, including by applying the precautionary principle, if that's what they believe is right. Beyond regulatory cooperation per se, we have also undergone a major reform of the EU's approach to investment protection. I know that the TACD has views on that. I've seen the paper you have just released. But we'll be talking about this in more detail in a few moments. So let me just say that our proposal is specifically designed to make sure that there too, we protect our right to regulate in the public interest. And that includes the precautionary principle.
So our approach is clear. We will defend the precautionary approach to regulation in Europe in TTIP in all our other agreements.
My sense, based on past trade conflicts, is that the precautionary principle runs into problems with trade rules when precautionary measures are not science-based. In some instances, such measures could also be deemed more trade-restrictive than necessary. (The measures could even discriminate based on nationality, depending on how you define discrimination, but they shouldn't -- in my view -- violate the non-discrimination provisions if they really are science-based).
So, the question is, can the EU apply the precautionary principle in a way that complies with trade obligations? The answer depends on two factors: How the EU applies the principle in practice, and how the trade obligations are defined. So, for example, if the investment provisions say that foreign investors cannot be treated in a way that is "manifestly arbitrary," will the EU apply precaution-based regulations to foreign investors in a way that is not manifestly arbitrary? Opinions probably vary on this, but past WTO jurisprudence suggests the EU may have trouble defending some of its measures.
