Risk Regulation and Deliberation in EU Administrative Governance—GMO Regulation and Its Reform

Date01 September 2015
Published date01 September 2015
Risk Regulation and Deliberation in EU
Administrative Governance—GMO
Regulation and Its Reform
Maria Weimer*
Abstract: The article analyses the problems of EU risk regulation of genetically modified
organisms (GMOs) through the lens of deliberative theories of EU law and governance,
such as deliberative supranationalism and experimentalist governance. Previous research
had suggested that the GMO issue is not conductive to deliberation within EU institutions
because of its high politicisation. This article argues that another equally salient factor is
the scientification of the GMO authorisation process. Scientification stands for the
Commission’s overreliance on epistemic legitimacy as the basis for risk management.
Given the deadlock of comitology in this field, scientification is exacerbated by a reversion
to top-down regulation by the Commission. As a result, political responsibility for GMO
authorisations gets lost. This article argues that both scientification and politicisation are
mutually accelerative processes ultimately leading to a break down of dialogue at the EU
level. This contradicts the assumption that deliberation is fostered by technocratic ‘behind
closed door’ decision-making. In the GMO case, the top-down imposition of epistemic
authority has only increased politicisation contributing to the de-legitimation of all EU
institutions involved in GMO regulation. The recent EU reform on national opt-outs is not
sufficient to address this problem. A successful reform should mitigate the negative effects
of both politicisation and scientification.
I Introduction
In January 2015 the European Parliament approved the amendment of Directive
2001/18 on the deliberate release into the environment of genetically modified organ-
isms (GMOs)1with the aim of granting Member States the unprecedented right to
restrict or ban GMO cultivation in their territory on grounds other than public health
or environmental safety.2With this new reform of the EU legal framework for GMOs,
the EU legislature hopes yet again to restore a functioning EU-wide process of GMO
* Assistant professor, Amsterdam Centre for European Law and Governance, University of Amsterdam.
Email: m.weimer@uva.nl.
1Art 2, Dir 2001/18 defines GMOs as ‘organism(s), with the exception of human beings, in which the
genetic material has been altered in a way that does not occur naturally by mating and/or natural
2Directive (EU) 2015/412 of the European Parliament and of the Council of 11 March 2015 amending
Directive 2001/18/EC as regards the possibility for the Member States to restrict or prohibit the culti-
vation of genetically modified organisms (GMOs) in their territory entered into force on 2 April 2015.
© 2015 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
European Law Journal, Vol. 21, No. 5, September 2015, pp. 622–640.
authorisation and to end the regulatory controversy surrounding this area for the last
two decades. To evaluate the promise that this reform potentially holds requires an
understanding of what makes this policy field one of the most gridlocked on the
Union’s agenda despite continuous reform efforts. In fact, GMO regulation consti-
tutes one of the rare examples of the failure of deliberation in EU decision-making.
This article, therefore, analyses EU regulation of GMOs as a test case for deliberative
theories of EU law and governance, such as deliberative supranationalism and experi-
mentalist governance.
Risk regulation is, in principle, considered as a domain favourable to the occur-
rence of deliberation, and a promising testing ground for deliberative theories in
public regulation, especially in the transnational space.3The underlying assumption is
that the scientific and technical questions arising in the regulation of risk-entailing
products and technologies, including the accompanying scientific uncertainty, are
likely to encourage a collective search for truth and for the best policy.4In the EU, the
networked system of governance in comitology and in the Council has often been
considered as fulfilling the special pre-conditions for successful deliberation.5
Back in 2001, Christian Joerges, in an article on the role of science within demo-
cratic risk management, stated that the regulation of transnational markets should be
guided by ‘transnational deliberative fora’, which would become the basis of legiti-
mate transnational governance:
. .. among the three levels of governance—the nation-state, the EU, and the WTO—the EU comes
closest to that ideal.6
This defence of deliberative supranationalism has become the basis for the succes-
sor theory of European Conflicts Law Constitutionalism (CLC): namely, the claim
that European law in general, and European transnational governance in particular,
can be re-interpreted as European ‘conflicts-law’, because they derive their legitimacy
from existent deliberative practices, which are constitutionalised through procedural
norms of transnational cooperation.7In a similar vein, other theorists of EU govern-
ance have identified the deliberative, self-transformative nature of European regula-
tion as the core of EU’s legal and regulatory architecture. According to Charles Sabel
and Jonathan Zeitlin, the EU is a functioning novel polity without a state because of
the fact that ‘its decision-making is at least in part deliberative: actor’s initial prefer-
ences are transformed through discussion by the force of the better argument’. The
EU has developed a new architecture of experimentalist governance, which reconciles
3See P. Dabrowska, ‘EU Governance of GMOs: political struggles and experimentalist solutions?’, in C.
Sabel and J. Zeitlin (eds), EU Governance: towards a New Architecture? (Oxford University Press, 2010);
A. Spina, ‘European Networks in the Regulation of Biotechnologies’, (2010) 35 European Law Review
197; S. Murphy, ‘Biotechnology and International Law’, (2001) 42 Harvard International Law Journal 47.
4For a critical view, see M. Pollack and G. Shaffer, ‘Risk Regulation, GMOs, and the Limits of
Deliberation’, in D. Naurin and H. Wallace (eds), The European Union Council of Ministers (Palgrave
Macmillan, 2008).
5See T. Risse, ‘Let’s argue!: Communicative Action in World Politics’, (2000) 54 International Organiza-
tion 1, at 19–20; C. Joerges and J. Neyer, ‘From Intergovernmental Bargaining to Deliberative Political
Processes: The Constitutionalisation of Comitology’, (1997) 3 European Law Journal 273.
6C. Joerges, ‘Law, Science, and the Management of Risks to Health at the National, European and
International Level’, (2001) 7 Columbia Journal of European Law 1, at 15–16.
7See C. Joerges, P.F. Kjaer and T. Ralli, ‘A New Type of Conflicts Law as Constitutional Form in the
Postnational Constellation’, (2011) 2 Transnational Legal Theory 153.
Risk regulation and deliberation in EU administrative governance
September 2015
© 2015 John Wiley & Sons Ltd.

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