The article moves from the general definition of the precautionary principle in the European environmental law and in the common guidelines on its application established by a Communication from the Commission. The principle allows legal and administrative restrictions aimed at facing risks within a framework of scientific uncertainty and thus shows to be a related to risk analysis and management. A following succinct overview on the jurisprudence of the Court of justice provides some more information about the basic aspects of precaution. The analysis of risk requires highly qualified, although controversial, scientific studies. Generic fears are not sufficient. The management of risk consists in deciding how far it may be accepted or opposed by proportionate public measures. This introduces to the research of relevant aspects of Italian jurisprudence dealing with the precautionary principle. Italian Courts show to be in line with the Court of Justice. Peculiar aspects arising from the national judgements concern the question if it should be the law or the public administration (or both) to put into force measures in order to face and manage risks. Another topic is related to the depth of investigation required from the public powers, when restrictions on the basis of the precautionary principle are evaluated and to the burden of proof.

Il principio di precauzione nella giurisprudenza amministrativa

TACCOGNA, GEROLAMO
2016

Abstract

The article moves from the general definition of the precautionary principle in the European environmental law and in the common guidelines on its application established by a Communication from the Commission. The principle allows legal and administrative restrictions aimed at facing risks within a framework of scientific uncertainty and thus shows to be a related to risk analysis and management. A following succinct overview on the jurisprudence of the Court of justice provides some more information about the basic aspects of precaution. The analysis of risk requires highly qualified, although controversial, scientific studies. Generic fears are not sufficient. The management of risk consists in deciding how far it may be accepted or opposed by proportionate public measures. This introduces to the research of relevant aspects of Italian jurisprudence dealing with the precautionary principle. Italian Courts show to be in line with the Court of Justice. Peculiar aspects arising from the national judgements concern the question if it should be the law or the public administration (or both) to put into force measures in order to face and manage risks. Another topic is related to the depth of investigation required from the public powers, when restrictions on the basis of the precautionary principle are evaluated and to the burden of proof.
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11567/880937
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