The precautionary principle and the burden and standard of proof in European and Dutch environmental law

Abstract

This article offers an analysis of the application of the precautionary principle by European courts and the highest Dutch administrative courts in environmental cases. The precautionary principle is one of the leading principles in EU environmental law, but it has no unequivocal meaning. This makes the principle difficult to apply and the allocation of the burden of proof and the level of standard of proof complex matters. In the context of the allocation of the burden of proof, it is essential to make the distinction between the precautionary principle invoked as an obligation or a justification for protective measures. A realistic level of standard of proof is also essential. Without a fair allocation of the burden of proof and a realistic level of standard of proof, either the authorities or the appellants may be exposed to unequal procedural positions and unsolvable evidentiary problems. Analysis of the case law leads to the conclusion that the principle sometimes is misapplied by the Dutch administrative courts.