http://www.itssd.org/Publications/Kogan%20TNI%2077FINAL.pdf
Exporting Europe's Protectionism
Lawrence A. Kogan
The National Interest Journal
Number 77, Fall 2004, pp. 91-99
Due to its different view concerning the role of 'science' in assessing and managing public risks, the EU has effectively challenged the U.S./WTO risk evaluation framework seeking to establish the precautionary principle, a 'better safe than sorry' rule, as an absolute international standard by which all products, no matter where they are produced, are determined to be safe or harmful.
This challenge threatens the competitiveness of U.S. and other non-EU industries because it seeks to transform the current predictable risk-based evaluation system premised on objective empirical (technical) science, exposure data and, to a large extent, economic cost benefit analysis, into a subjective framework in which pre-risk assessment screening based on cultural moral values and demographic risk aversion (consumer fear perceptions) and hazard profiling based on intrinsic substance characteristics prevails.
The EU has endeavored to change the current framework by embedding the precautionary principle into overly stringent health and safety and environment regulations and technical product standards (in excess of international standards), and then exporting those regulations and standards abroad down industry supply chains throughout the world via international treaties, international standardization bodies and bilateral technical capacity building intiatives.
Examples of this include EU biotech labeling and traceability regulations that implement EU obligations under the Biosafety Protocol to the U.N. Biodiversity Convention and the proposed EU REACH regulation, which is intended to serve as a template for global chemicals management.
In essence, the EU exports the high cost of precautionary regulation and standardization abroad in order to 'level the global economic playing field' (as a form of protectionism to compensate) for its lagging, less cost-efficient or otherwise technologically underdeveloped industries.
Lastly, the EU and its member states also fund non-governmental environmental groups, both in Europe and other countries, that are actively engaged in pursuing antiglobalization and anti-technology campaigns. These campaigns threaten government and company technological innovation and research and development programs.
Showing posts with label noncompetitive. Show all posts
Showing posts with label noncompetitive. Show all posts
Wednesday, February 6, 2008
Monday, February 4, 2008
Sudden EU Commission Change of Heart on CO2 Rules Against Industry???? It's the Economy Stupid!!
http://www.planetark.org/dailynewsstory.cfm/newsid/46516/story.htm
EU to Set Easier CO2 Regime for Heavy Industries
Paul Taylor
Planet Ark
January 21, 2008
BRUSSELS - Europe's steel, aluminium and cement industries will have a special, less strict regime for greenhouse gas emissions under European Commission proposals to fight climate change to be announced this week.
After weeks of intense lobbying by business and governments, EU sources said on Sunday those three energy-intensive industries would be introduced more slowly into a new system for auctioning permits to emit carbon dioxide (CO2) from 2013.
The sources insisted on anonymity because wrangling is continuing in the Commission on final details of the proposals on CO2 emissions, renewable energy sources, biofuels and carbon sequestration to be unveiled on Wednesday.
A key flaw of the EU's Emissions Trading Scheme -- the main instrument for curbing pollution blamed for global warming -- has been that governments issued emission permits for free, handing industry windfall profits.
Under a planned reform, the sources said most sectors covered by the ETS will have to buy about one-fifth of emission permits from 2013 -- fewer than in early drafts of the proposal -- rising annually to reach 100 percent in 2020.
Those sectors include energy and power generation, including refineries, despite fierce lobbying by European oil majors BP and Shell to go easy on refineries.
The overall aim is to reduce European emissions of CO2 by at least 20 percent by 2020 compared to 1990 levels.
[MY, MY: HOW EU ASPIRATIONS FOR ENLIGHTENED ENVIRONMENTALISM HAVE FALLEN!!]
However, the sources said the EU executive was sensitive to concerns that the three big energy-intensive industries could be driven out of Europe if subjected to the same regime.
[EU COMMISSION SMELLS THE COFFEE!!]
"Those concerns are being sufficiently taken into account through the benchmarking regime and a different allocation regime," one official said.
WHITTLED DOWN
He declined to give figures but said energy-intensive industries would have a bigger initial allocation than originally planned, a lower starting point for the percentage of emissions permits to be auctioned and a slower phase-in.
The Carbon Trust, a British government-funded body charged with helping companies cut emissions, warned earlier this month that cement, steel, aluminium, chemicals, fertiliser and pulp and paper businesses might be hurt by the stricter EU regime.
But the sources said officials had whittled down the number of energy-intensive sectors likely to enjoy special treatment to just the three.
Europe's top business lobby last week attacked Commission plans to implement the deep emissions cuts agreed by EU leaders last year, saying that auctioning pollution permits could hurt industry in global competition.
"In the absence of a comprehensive international agreement, auctioning of allowances will harm the competitiveness of European companies, especially in energy-intensive industries," BusinessEurope Secretary-General Philippe de Buck wrote in a letter to Commission President Jose Manuel Barroso.
The draft proposal provides for a review in 2011 of the impact on energy-intensive industries, depending on whether there has been an international pact on curbing emissions by then.
The EU package will also propose mandatory national targets for cutting CO2 emissions from buildings, heating and cooling and transport, as well as binding national targets for using renewable energy sources in power generation. (Editing by Caroline Drees)
EU to Set Easier CO2 Regime for Heavy Industries
Paul Taylor
Planet Ark
January 21, 2008
BRUSSELS - Europe's steel, aluminium and cement industries will have a special, less strict regime for greenhouse gas emissions under European Commission proposals to fight climate change to be announced this week.
After weeks of intense lobbying by business and governments, EU sources said on Sunday those three energy-intensive industries would be introduced more slowly into a new system for auctioning permits to emit carbon dioxide (CO2) from 2013.
The sources insisted on anonymity because wrangling is continuing in the Commission on final details of the proposals on CO2 emissions, renewable energy sources, biofuels and carbon sequestration to be unveiled on Wednesday.
A key flaw of the EU's Emissions Trading Scheme -- the main instrument for curbing pollution blamed for global warming -- has been that governments issued emission permits for free, handing industry windfall profits.
Under a planned reform, the sources said most sectors covered by the ETS will have to buy about one-fifth of emission permits from 2013 -- fewer than in early drafts of the proposal -- rising annually to reach 100 percent in 2020.
Those sectors include energy and power generation, including refineries, despite fierce lobbying by European oil majors BP and Shell to go easy on refineries.
The overall aim is to reduce European emissions of CO2 by at least 20 percent by 2020 compared to 1990 levels.
[MY, MY: HOW EU ASPIRATIONS FOR ENLIGHTENED ENVIRONMENTALISM HAVE FALLEN!!]
However, the sources said the EU executive was sensitive to concerns that the three big energy-intensive industries could be driven out of Europe if subjected to the same regime.
[EU COMMISSION SMELLS THE COFFEE!!]
"Those concerns are being sufficiently taken into account through the benchmarking regime and a different allocation regime," one official said.
WHITTLED DOWN
He declined to give figures but said energy-intensive industries would have a bigger initial allocation than originally planned, a lower starting point for the percentage of emissions permits to be auctioned and a slower phase-in.
The Carbon Trust, a British government-funded body charged with helping companies cut emissions, warned earlier this month that cement, steel, aluminium, chemicals, fertiliser and pulp and paper businesses might be hurt by the stricter EU regime.
But the sources said officials had whittled down the number of energy-intensive sectors likely to enjoy special treatment to just the three.
Europe's top business lobby last week attacked Commission plans to implement the deep emissions cuts agreed by EU leaders last year, saying that auctioning pollution permits could hurt industry in global competition.
"In the absence of a comprehensive international agreement, auctioning of allowances will harm the competitiveness of European companies, especially in energy-intensive industries," BusinessEurope Secretary-General Philippe de Buck wrote in a letter to Commission President Jose Manuel Barroso.
The draft proposal provides for a review in 2011 of the impact on energy-intensive industries, depending on whether there has been an international pact on curbing emissions by then.
The EU package will also propose mandatory national targets for cutting CO2 emissions from buildings, heating and cooling and transport, as well as binding national targets for using renewable energy sources in power generation. (Editing by Caroline Drees)
EU Comes Clean on Climate Change Costs: GHG Reduction Rules Will Significantly Harm European Industry Competitiveness
http://www.environmentalleader.com/2008/01/10/new-eu-co2-plans-will-affect-heavy-industry
New EU CO2 Plans Will Affect Heavy Industry
January 10, 2008
EU officials have acknowledged that a new plan to tighten greenhouse gas admissions will take a toll on the competiveness of some heavy industries, reports this article. The new rules will be unveiled by the European Commission on January 23.
According to official documents, the aluminum producers would be most affected, while chemical, steel and cement makers, to comply with the new standards, would have to raise prices between 5 and 48 percent. Reportedly, the EU executive is still divided on whether to introduce measures that would protect some sectors, such as energy intensive industries.
[REPORTS LIKE THESE ONCE AGAIN VALIDATE PREVIOUS ITSSD RESEARCH]
Overall, it’s estimated that should the changes occur, Europe’s GDP would drop by 0.1 percent but that jobs lost in the affected industries would be offset by new opportunities in the low-carbon economy.
The commission is also considering a carbon tariff on goods from countries whose emission policies aren’t as strong as Europe’s.
New EU CO2 Plans Will Affect Heavy Industry
January 10, 2008
EU officials have acknowledged that a new plan to tighten greenhouse gas admissions will take a toll on the competiveness of some heavy industries, reports this article. The new rules will be unveiled by the European Commission on January 23.
According to official documents, the aluminum producers would be most affected, while chemical, steel and cement makers, to comply with the new standards, would have to raise prices between 5 and 48 percent. Reportedly, the EU executive is still divided on whether to introduce measures that would protect some sectors, such as energy intensive industries.
[REPORTS LIKE THESE ONCE AGAIN VALIDATE PREVIOUS ITSSD RESEARCH]
Overall, it’s estimated that should the changes occur, Europe’s GDP would drop by 0.1 percent but that jobs lost in the affected industries would be offset by new opportunities in the low-carbon economy.
The commission is also considering a carbon tariff on goods from countries whose emission policies aren’t as strong as Europe’s.
Friday, January 25, 2008
EU Climate Change Chicanery: ITSSD Research Findings on European Disguised Protectionism Validated
http://www.boston.com/news/world/europe/articles/2008/01/22/us_warns_eu_on_using_climate_change_as_pretext/
http://www.iht.com/articles/2008/01/21/business/carbon.php
US warns EU on using climate change as pretext
http://www.iht.com/articles/2008/01/21/business/carbon.php
US warns EU on using climate change as pretext
By James Kanter and Stephen Castle,
International Herald Tribune,
22 January 2008
Official says it has been an excuse for protectionism
BRUSSELS - The United States warned the European Union yesterday against using climate change as a pretext for protectionism, setting the stage for trans-Atlantic tension over a new package of EU measures to combat global warming.
The pointed comments by the US trade representative, Susan Schwab, after talks in Brussels, came just two days before the European Commission introduced its proposals for cutting EU emissions at least 20 percent from 1990 levels by 2020.
"We have been dismayed at a variety of suggestions where we have seen the climate and the environment being used as an excuse to close markets," Schwab said after discussions with Peter Mandelson, her European counterpart.
President Nicolas Sarkozy of France has called for a carbon tax on imports to ensure that European companies that need to comply with tough environmental rules are not undercut by foreign competitors whose governments are not capping carbon emissions.
EU officials were not expected to propose such a measure tomorrow but were expected to keep alive the possibility of a so-called border tax to keep European industries competitive.
The EU pledge to protect European industry by 2011 at the latest will be aimed at assuaging powerful lobby groups from sectors like steel and aluminum manufacturing, which say they are facing higher costs than their overseas competitors because of the EU's determination to lead the world in climate protection.
Even so, EU officials hope to be able to avoid the issue, not least because any European border tax could be challenged at the World Trade Organization.
Instead, EU officials hope that other developed countries like the United States, which did not sign the Kyoto climate treaty, will join an international treaty by the end of the decade, making protectionist measures unnecessary.
Measures other than the border tax that are under discussion by EU officials and diplomats in Brussels include granting greater numbers of free pollution permits than planned. Officials say they believe such a method would not break world trade rules.
The EU also could condone global agreements within sectors like steel and cement, rather than between nations.
In that scenario, industries worldwide in a particular manufacturing sector would agree to cut their pollution by a certain amount, in theory leveling the competitive playing field.
EU officials say they are optimistic about a global climate accord after the recent meeting of nearly 200 nations in Bali, Indonesia, where agreement was reached on laying out a plan for negotiations that could produce a climate treaty by 2009.
But the Bali Action Plan faces high hurdles, including the persistently thorny problem of convincing the United States to take action even if fast-developing countries like China, which insists on developments getting higher priority than emissions curbs, fail to make similar pledges.
Schwab also took issue with Europe's attitude toward genetically modified foods, which she described as "perfectly safe."
She singled out France's decision to go slowly on cultivation of genetically modified corn.
French Rethinking the Precautionary Principle?? Jamais!!!
Communique From ITSSD Journal Advisory Board Member, Dr. Sorin Straja About France and the Precautionary Principle:
January 23, 2008
Dear Dr. Kogan,
I just came from a trip in France. While there I heard the news about the recommendation of the Jacques Attali commission regarding the Precautionary Principle. Apparently, this commission felt that this principle should be discarded as it is a hurdle for development. However, the reaction was quite strong (the commission was labeled as the ATTILA commission) and the draft document released this week does NOT mention the precautionary principle. Please let me know if you want me to follow up with the recommendations of this commission (may be released in the near future).
... Apparently, the French President Sarkozy has already rejected two proposals of the Attali Commission: the administrative reorganization of France abolishing the counties ("départements") and ... the precautionary principle.
Please See: "Sarkozy rejette deux propositions du rapport Attali", reported on the website of "Le Figaro" one of the most popular French daily papers:
http://www.lefigaro.fr/economie/2008/01/23/04001-20080123ARTFIG00421-sarkozy-rejette-deux-propositions-du-rapport-attali.php .
The subheadline prominently reads:
Nicolas Sarkozy a relevé quelques désaccords avec les propositions formulées par Jacques Attali. Le chef de l'État est contre la suppression des départements et celle du principe de précaution
Thank you very much for your help.
Sorin Straja
Here is the news report in French:
Commission Attali: les premières propositions suscitent la polémique
PARIS (AFP) — Les premières propositions de la Commission pour la libération de la croissance française (CLCF) présidée par Jacques Attali, qui devait remettre lundi après-midi au président Nicolas Sarkozy un rapport d'étape sur le pouvoir d'achat, ont déjà déclenché la polémique.
Selon des informations de presse publiées vendredi, les membres de la commission suggéraient notamment de retirer de la Constitution le "principe de précaution", considéré comme un frein à la croissance, ce qui a suscité une levée de boucliers.
Le ministre de l'Ecologie, Jean-Louis Borloo, s'est fermement opposé lundi à cette suppression, rappelant que "le principe de précaution fait partie de traités internationaux que la France a signés".
La secrétaire d'Etat à l'Ecologie, Nathalie Kosciusko-Morizet, avait auparavant qualifié cette position de "réactionnaire". "Il faut cesser de considérer que l'environnement est une limite à la croissance", a affirmé celle qui fut rapporteur de la Charte de l'environnement, qui avait inscrit ce principe dans la Constitution en 2005.
Dès vendredi, la CLCF avait souligné que ses propositions étaient "en cours de finalisation" et que "les documents qui ont pu être diffusés jusqu'ici ne correspondent pas à l'état actuel des propositions".
La commission Attali contre le principe de precaution
La Commission pour la libération de la croissance propose, dans son rapport d'étape, de le retirer de la Constitution ou encore d'abroger les lois Royer, Galland et Raffarin sur la distribution.
Présidée par Jacques Attali, la Commission pour la libération de la croissance (CLCF) va suggérer au président de la République de retirer le principe de précaution de la Constitution, d'abroger les lois sur la distribution, de lancer des mesures pour le logement et la stimulation du pouvoir d'achat, écrit Le Figaro dans son édition de vendredi 12 octobre.
Selon la une du quotidien, transmise jeudi soir à Reuters, qui cite le rapport d'étape de la commission remis lundi prochain au président de la République, "les membres de la commission demandent à Nicolas Sarkozy de retirer le principe de précaution qui figure actuellement dans la Constitution. Ils y voient un frein majeur à la croissance".
Grande consommation et logement
La commission propose également une libéralisation radicale de la distribution, poursuit Le Figaro. "En abrogeant les lois Royer, Galland et Raffarin, sur le commerce, il serait possible de faire baisser de 2 à 4% les prix des produits de grande consommation", écrit le quotidien.
"Pour relancer le logement, la commission propose neuf séries de mesures: alléger le contrat de bail, instaurer la TVA à 5,5% pour les jeunes, créer des villes nouvelles ultraécolos…", poursuit-il. La Commission suggère également une vaste restructuration des 850 organismes de HLM dont le nombre serait réduit afin d'augmenter leur efficacité.
La commission livrera également "une trentaine de recommandations pour libérer les contraintes qui pèsent sur les revenus des ménages", lit-on également sur la une du Figaro, sans plus de précision. (Reuters)
...The PRECAUTIONARY PRINCIPLE is questioned by the Attali Commission Report providing 316 proposals “to liberate the French growth.”
Jacques Attali gave on January 23, 2008 to the French President Nicolas Sarkozy and the Prime Minister Francois Fillon the “Report Of The Commission For The Liberation Of The French Growth”. Please find attached the original document (in full in French). The major goals are to obtain an additional 1% of growth, to bring back the rate of unemployment to 5 %, and to reduce the national debt.
One of the most unexpected proposals is to repeal, or if this is not possible then to very strictly specify, the precautionary principle.
Also attached is...my translation of the section where the precautionary principle is mentioned.
Jacques Attali, between 1981 and 1991, was a French presidential adviser as part of the country's socialist government. In April 1991 he became the first President of the London-based European Bank for Reconstruction and Development established to assist the former communist countries in their transition to democratic market economies.
Sorin Straja
OBJECTIVE: To rethink the precautionary principle
The constitutional law n° 2005-205 of March 1st, 2005 inscribed in the constitutional text the “Charter of the environment of 2004”. It thus meets an increasing concern of the citizens with regard to their environment and testifies to the interest that the Parliament carries to these questions. However, article 5 of the Charter introduces a new provision in constitutional law, by referring to a “precautionary principle”, already present in the legislative corpus, and whose normative range remains uncertain.
This reference generates judicial uncertainties and installs a context prejudicial to the innovation and the growth, because of the risks of dispute of responsibility against the most innovating companies in front of the courts of law. It also burdens with a heavy presumption the decisions of administrative police force.
The need for protection is undeniable. It is established and recognized by the European texts.
If the constitutional text intends to prevent the realization of damages harmful to the collectivity, its very open drafting leaves place to potentially divergent interpretations, likely to paralyze the economic activity and that of the administration.
In effect, the concept of damage affecting the “environment in a gravely and irreversible way” is not defined by the constitutional text. Moreover, the reality of the “damage” is only very vaguely specified there: it is enough that its realization be “uncertain in the state of scientific knowledge” to oblige the administration to act. This fuzzy formulation opens to the judge the possibility of interpreting the founding text of the Republic. This situation is not ideal from the point of view of democracy.
Moreover, article 5 of the Charter of the environment risks to inhibit the fundamental and applied research, insofar as an innovation which potentially would generate a damage whose realization would be “uncertain in the state of scientific knowledge” could open recourse of responsibility, against the companies or institutes of research as well as against public collectivities charged with administrative police force. Moreover, sometimes this sanction would intervene only at the end of a long legal procedure, thus paralyzing the activity of the public and private laboratories.
In addition, the administrative action itself would be very slow due to this vague formulation. In virtue of this constitutional text modified in 2005, the administration is supposed to be able to follow the whole scientific research, which appears not very realistic. Not being able to do it, the administration will thus resort very often to prohibition, the solution that is judicially the most sure, administratively the most comfortable, and the more penalizing for our growth.
Finally, article 5 of the Charter of the environment is not dissociable from article 7 that imposes that the decisions of precaution be taken with the participation of the citizens. Under French reality, the precautionary principle leads to situations of indecision that are penalizing for the industrialists and, in a general way, for the long-term investment.
The constitutionalisation of the principle solidifies reality and constitutes an obstacle to the growth: the legislator should be able to preserve a room for maneuver to define precise conditions of application of the principle.
Consequently, it seems convenient to repeal, or if this is not possible then to very strictly specify the range of article 5 of the Charter of the environment of 2004, with respect to both the private operators and the public authorities, by a revision of the constitutional text, which will make it possible to specify the nature of the “damage” and the conditions of its compensation.
January 23, 2008
Dear Dr. Kogan,
I just came from a trip in France. While there I heard the news about the recommendation of the Jacques Attali commission regarding the Precautionary Principle. Apparently, this commission felt that this principle should be discarded as it is a hurdle for development. However, the reaction was quite strong (the commission was labeled as the ATTILA commission) and the draft document released this week does NOT mention the precautionary principle. Please let me know if you want me to follow up with the recommendations of this commission (may be released in the near future).
... Apparently, the French President Sarkozy has already rejected two proposals of the Attali Commission: the administrative reorganization of France abolishing the counties ("départements") and ... the precautionary principle.
Please See: "Sarkozy rejette deux propositions du rapport Attali", reported on the website of "Le Figaro" one of the most popular French daily papers:
http://www.lefigaro.fr/economie/2008/01/23/04001-20080123ARTFIG00421-sarkozy-rejette-deux-propositions-du-rapport-attali.php .
The subheadline prominently reads:
Nicolas Sarkozy a relevé quelques désaccords avec les propositions formulées par Jacques Attali. Le chef de l'État est contre la suppression des départements et celle du principe de précaution
Thank you very much for your help.
Sorin Straja
Here is the news report in French:
Commission Attali: les premières propositions suscitent la polémique
PARIS (AFP) — Les premières propositions de la Commission pour la libération de la croissance française (CLCF) présidée par Jacques Attali, qui devait remettre lundi après-midi au président Nicolas Sarkozy un rapport d'étape sur le pouvoir d'achat, ont déjà déclenché la polémique.
Selon des informations de presse publiées vendredi, les membres de la commission suggéraient notamment de retirer de la Constitution le "principe de précaution", considéré comme un frein à la croissance, ce qui a suscité une levée de boucliers.
Le ministre de l'Ecologie, Jean-Louis Borloo, s'est fermement opposé lundi à cette suppression, rappelant que "le principe de précaution fait partie de traités internationaux que la France a signés".
La secrétaire d'Etat à l'Ecologie, Nathalie Kosciusko-Morizet, avait auparavant qualifié cette position de "réactionnaire". "Il faut cesser de considérer que l'environnement est une limite à la croissance", a affirmé celle qui fut rapporteur de la Charte de l'environnement, qui avait inscrit ce principe dans la Constitution en 2005.
Dès vendredi, la CLCF avait souligné que ses propositions étaient "en cours de finalisation" et que "les documents qui ont pu être diffusés jusqu'ici ne correspondent pas à l'état actuel des propositions".
La commission Attali contre le principe de precaution
La Commission pour la libération de la croissance propose, dans son rapport d'étape, de le retirer de la Constitution ou encore d'abroger les lois Royer, Galland et Raffarin sur la distribution.
Présidée par Jacques Attali, la Commission pour la libération de la croissance (CLCF) va suggérer au président de la République de retirer le principe de précaution de la Constitution, d'abroger les lois sur la distribution, de lancer des mesures pour le logement et la stimulation du pouvoir d'achat, écrit Le Figaro dans son édition de vendredi 12 octobre.
Selon la une du quotidien, transmise jeudi soir à Reuters, qui cite le rapport d'étape de la commission remis lundi prochain au président de la République, "les membres de la commission demandent à Nicolas Sarkozy de retirer le principe de précaution qui figure actuellement dans la Constitution. Ils y voient un frein majeur à la croissance".
Grande consommation et logement
La commission propose également une libéralisation radicale de la distribution, poursuit Le Figaro. "En abrogeant les lois Royer, Galland et Raffarin, sur le commerce, il serait possible de faire baisser de 2 à 4% les prix des produits de grande consommation", écrit le quotidien.
"Pour relancer le logement, la commission propose neuf séries de mesures: alléger le contrat de bail, instaurer la TVA à 5,5% pour les jeunes, créer des villes nouvelles ultraécolos…", poursuit-il. La Commission suggère également une vaste restructuration des 850 organismes de HLM dont le nombre serait réduit afin d'augmenter leur efficacité.
La commission livrera également "une trentaine de recommandations pour libérer les contraintes qui pèsent sur les revenus des ménages", lit-on également sur la une du Figaro, sans plus de précision. (Reuters)
...The PRECAUTIONARY PRINCIPLE is questioned by the Attali Commission Report providing 316 proposals “to liberate the French growth.”
Jacques Attali gave on January 23, 2008 to the French President Nicolas Sarkozy and the Prime Minister Francois Fillon the “Report Of The Commission For The Liberation Of The French Growth”. Please find attached the original document (in full in French). The major goals are to obtain an additional 1% of growth, to bring back the rate of unemployment to 5 %, and to reduce the national debt.
One of the most unexpected proposals is to repeal, or if this is not possible then to very strictly specify, the precautionary principle.
Also attached is...my translation of the section where the precautionary principle is mentioned.
Jacques Attali, between 1981 and 1991, was a French presidential adviser as part of the country's socialist government. In April 1991 he became the first President of the London-based European Bank for Reconstruction and Development established to assist the former communist countries in their transition to democratic market economies.
Sorin Straja
OBJECTIVE: To rethink the precautionary principle
The constitutional law n° 2005-205 of March 1st, 2005 inscribed in the constitutional text the “Charter of the environment of 2004”. It thus meets an increasing concern of the citizens with regard to their environment and testifies to the interest that the Parliament carries to these questions. However, article 5 of the Charter introduces a new provision in constitutional law, by referring to a “precautionary principle”, already present in the legislative corpus, and whose normative range remains uncertain.
This reference generates judicial uncertainties and installs a context prejudicial to the innovation and the growth, because of the risks of dispute of responsibility against the most innovating companies in front of the courts of law. It also burdens with a heavy presumption the decisions of administrative police force.
The need for protection is undeniable. It is established and recognized by the European texts.
If the constitutional text intends to prevent the realization of damages harmful to the collectivity, its very open drafting leaves place to potentially divergent interpretations, likely to paralyze the economic activity and that of the administration.
In effect, the concept of damage affecting the “environment in a gravely and irreversible way” is not defined by the constitutional text. Moreover, the reality of the “damage” is only very vaguely specified there: it is enough that its realization be “uncertain in the state of scientific knowledge” to oblige the administration to act. This fuzzy formulation opens to the judge the possibility of interpreting the founding text of the Republic. This situation is not ideal from the point of view of democracy.
Moreover, article 5 of the Charter of the environment risks to inhibit the fundamental and applied research, insofar as an innovation which potentially would generate a damage whose realization would be “uncertain in the state of scientific knowledge” could open recourse of responsibility, against the companies or institutes of research as well as against public collectivities charged with administrative police force. Moreover, sometimes this sanction would intervene only at the end of a long legal procedure, thus paralyzing the activity of the public and private laboratories.
In addition, the administrative action itself would be very slow due to this vague formulation. In virtue of this constitutional text modified in 2005, the administration is supposed to be able to follow the whole scientific research, which appears not very realistic. Not being able to do it, the administration will thus resort very often to prohibition, the solution that is judicially the most sure, administratively the most comfortable, and the more penalizing for our growth.
Finally, article 5 of the Charter of the environment is not dissociable from article 7 that imposes that the decisions of precaution be taken with the participation of the citizens. Under French reality, the precautionary principle leads to situations of indecision that are penalizing for the industrialists and, in a general way, for the long-term investment.
The constitutionalisation of the principle solidifies reality and constitutes an obstacle to the growth: the legislator should be able to preserve a room for maneuver to define precise conditions of application of the principle.
Consequently, it seems convenient to repeal, or if this is not possible then to very strictly specify the range of article 5 of the Charter of the environment of 2004, with respect to both the private operators and the public authorities, by a revision of the constitutional text, which will make it possible to specify the nature of the “damage” and the conditions of its compensation.
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