But in the meantime the industry suffered considerable damage

At the end of the summer 2006, the discovery of toxins in the basin of Arcachon led the State to pronounce bans prevent and then, after the death of two persons, to apply the precautionary principle by extending the prohibitions. Prevention and precaution are two often confused concepts which, in this case, played tower to Tower. But we have to distinguish between them because their legal consequences are different.

Prevention first: tests revealed the presence of toxins in greater regulatory requirements. The prefect has therefore prohibited the marketing of oysters and mussels originating from basin where these toxins were detected, which was lifted when new tests were allowed to see a return to normal. The temporary ban, based on test results showing the existence of a risk, was a prevention measure classical management of risk regarded as proven.

But when, following the death of two persons, all oysters have been banned, including those from pools of isolated storage where any non-compliance had been found, it is out of prevention. The cause of death was unknown, but the existence of a serious risk has been regarded as plausible and pending certainties, the public authorities considered it necessary to act to limit the maximum possible adverse consequences. Such is the precautionary principle, as described in the European regulation (EC 178/2002) on food security: "in particular cases where an assessment of the available information indicates the possibility of adverse health effects, but where there is scientific uncertainty, of the provisional measures for management of the risk ..." "can be adopted."

It is known that, subsequently, deaths have proven without connection with oysters. But in the meantime, the industry suffered considerable damage. This case therefore raises the question of responsibilities where measures taken under the precautionary principle to indicate, in fine, unnecessary or excessive. In this case, it seems pointless to seek the responsibility of the scientists who conducted the tests. Indeed these tests, today the only recognized by the regulation, carried out by laboratories approved of an independent, objective and transparent manner. They have their limitations because they sometimes give inaccurate or inconsistent results and do not determine the precise nature of the toxins detected. But those limits are known to the public authorities, laboratories is also required to inform decision makers on the uncertainty of the results of the analysis that they perform.

Analysis errors

Does this mean that in totally prohibiting the marketing, public authorities have taken a measure illegal because excessive The precautionary principle requires that the measures taken are proportionate to the risk incurred and economically acceptable indeed.

In theory, could be considered a liability for fault of the authorities. However, there would be wrong if it was "manifest error of assessment", which would be difficult to establish with two deaths correlated to the presence of toxins in the tests. Specifically, the precautionary principle allows and even required to take action in the event of uncertainty.

We then think of liability without fault of the administration, said "for breach of equality before public burdens", which allows to repair harm "abnormal and special" due to the application of an administrative decision taken in the general interest. But this circumstance is rarely used, and the recent development of the precautionary principle does not seem to have emerged new case law in this sense. Indeed, the Council of State considers that equality is not broken when all producers of the same product are affected by a measure of public health. However, most of the producers of the Arcachon basin have been affected by the ban.

Repair of the damage sustained by a whole sector in such circumstances is therefore probably not within the law of responsibility, the principle of precaution which could lead the authorities to take action then proved excessive, or even inappropriate, in perfectly legal conditions. However, if simple measures of prevention, which must be based on a proven risk, are disproportionate or unfounded, for example by errors of analysis, principles of administrative responsibility must regain their rights. Hence the importance of not to confuse prevention and precaution.