El principio de precaución y otras reglas asociadas en el Derecho Público españolencaje constitucional, formulación y aplicación

Abstract

Our research constitutes a Public Law analysis of the so-called “precautionary principles” within Spanish internal legal order. In particular, we have analyzed the questionable validity of the precautionary principle in light of some basic constitutional principles, such as legality of legal certainty, and other guarantees arising from the Rule of Law. To so, we have analyzed as precisely as possible the current conception of the precautionary principle and its implementation in Spain. This was a difficult task given the multiple definitions existing to date in legislation, case law and doctrinal analysis. This part of the research was based on a wide case law analysis, in which we have examined all judicial resolutions quoting the precautionary principle in Spanish administrative order until March 2020. It has raised important concerns about the principle, based on its legal status and that of similar norms that tend to be confused with the principle itself. It has also led to some concerns based on the legal foundations of the principle (beyond ethical or sociological foundations) and its problematic compatibility with the aforementioned principles of legality and legal certainty. The second part of our research analyzes the content of the different norms labeled as “precautionary principle” and try to reformulate them, in order for them to keep protecting individual and collective safety against uncertain risks without infringing said constitutional guarantees. It is a more prescriptive part, nonetheless based on multiple case law and doctrinal examples that support our proposal. It tries to further elaborate on the axiological and normative content of the precautionary principle, as a general principle of Law. It seeks to reframe the interpretation of some of the core concepts that explain the principle and the legal rules inspired from it. Finally, it tries to specify the way in which those norms shall be applied and their subsequent control, included the potential liability of public authorities derived from improper or non-implementation of said rules.