الرقابة القضائية على التزام السلطات العامة بتطبيق مبدأ الحيطة لمواجهة المخاطر المحتملة: (دراسة مقارنة)‎

Abstract EN

The increasing and enormous scientific and technical progress in all fields imposes on the state and its public authorities an increasing and additional obligation to intervene and protect the environment and human health from the outcomes of this scientific progress, which has resulted in the emergence of many technologies and technical developments in all fields, which may result in causing serious and very serious damage to health.

humans or the environment; Scientific progress has become double- edged, one beneficial and the other harmful.

Hence, the principle of precaution appeared to impose an obligation on the state and its public authorities to prevent and prevent the occurrence of serious, irreversible, but uncertain damages resulting from risks that also lack scientific confirmation and certainty in light of current scientific knowledge.

This is done by taking appropriate and sufficient precautionary measures to prevent The occurrence of these damages or reducing their effects.

The principle of precaution initially emerged under international and regional agreements and treaties as one of the environmental policy tools that was used to confront potential risks for which there is no practical certainty regarding their occurrence.

This principle moved to the legal system of many countries, some of which promoted it as a constitutional principle, such as France, and others limited it to It is included in many internal legislation, especially legislation related to environmental protection, such as Germany and France.

Three cumulative elements are required to implement the precautionary principle by the competent public authorities in exercising their powers: the first is the presence of a risk of harm to the environment or human health, the second is scientific uncertainty in light of scientific knowledge regarding the reality of that risk, and finally the dangerous nature that may be irreversible.

The resulting damage to the environment.

The constitutionalization of the Environment Charter and the recognition of its constitutional value resulted in the principle of precaution not only being binding on all administrative authorities, but also extending that commitment to the legislator when exercising his jurisdiction to legislate.

This obligation imposes on each of them to evaluate risks, even uncertain ones, and adopt preventive measures that must be temporary and proportionate to the risks.

A double duty in exercising his powers, which means that if the legislator violates that principle, in the event of referral to the Constitutional Council, he may find that these legislative texts subject to oversight are in violation of the Constitution.

The provisions will no longer be able to enter into force