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-
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
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
© 2015 John Wiley & Sons Ltd.