The European Group on Ethics: Law, Politics and the Limits of Moral Integration in Europe

• DOI: http://doi.org/10.1111/j.1468-0386.2008.00447.x
• Author: Aurora Plomer
• Published date: 01 November 2008
• Date: 01 November 2008

The European Group on Ethics: Law,

Politics and the Limits of Moral

Integration in Europe

Aurora Plomer*

Abstract: Abstract: The article offers a critical review of the institutional role of the

European Group on Ethics in the EU, focusing on the appointment and composition of the

group, the nature of its ‘opinions’, the way these are used by the Commission and other EU

institutional actors, looking in particular at its controversial Opinion 22 on the ethical

review and funding of stem cell research under the FP7 programme. The analysis high-

lights the methodological diff‌iculties faced by the group in the grounding of its Opinions,

the blurring of normative moral and legal orders, the risk of politicisation of ethics and

the potential overreach by the EU of its competences in reliance on a group of this kind

to reach unity on deeply contested moral questions in a culturally and morally diverse

Europe.

Introduction

The European Group on Ethics (EGE) has been described as little more than a

legitimating device to lend authority to the politically and morally contested policies of

the European Commission.1Yet, whilst the ‘Opinions’ of the EGE have been f‌iercely

disputed,2they have also been relied upon by the courts, not least the European Court

of Human Rights.3The EGE has also been specif‌ically vested in the directive on the

legal protection of biotechnological inventions (1998) with continuing duties in respect

of ethical oversight in this morally and politically fractious f‌ield.4More recently the

* School of Law, University of Sheff‌ield. I would like to thank Julie Houghton for undertaking much of the

original background research for this article and the inspiring exchange of ideas that it prompted.

Antonina Bakardjieva-Engelbrekt offered some particularly helpful insights into EU comitology. I am

also grateful for the constructive comments of an anonymous referee.

1S. Jasanoff, Science & Democracy in Europe and the United States (Princeton, 2005).

2See also B. Salter, Transnational Governance and Cultural Politics: The Case of Human Embryonic Stem

Cells and the European Union’s Sixth Framework Programme (2005), available at http://www.york.ac.uk/

res/iht/projects/l218252005/SalterTransnationalGovernance.pdf.

3Evans v UK (App No 6339/05) ECrtHR, 7 March 2006.

4Directive 98/44/EC of the European Parliament and the Council of 6 July 1998 on the legal protection of

biotechnological inventions, [1998] OJ L213/13. Article 7 states that ‘The Commission’s European Group

on Ethics in Science and New Technologies evaluates all ethical aspects of biotechnology’. Recital 44 of

the Preamble reiterates the same point but adds that ‘it should be pointed out in this connection that the

Group may be consulted only where biotechnology is to be evaluated at the level of basic ethical principles,

European Law Journal, Vol. 14, No. 6, November 2008, pp. 839–859.

© 2008 The Author

Journal compilation © 2008 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

EGE’s authority has been further enhanced in relation to the funding of research

activities under the new and much disputed Framework 7 programme, 5whose adop-

tion was delayed mainly due to divisions amongst Member States about the funding of

research on human embryonic stem cells (hESCs).6Against this volatile background

and amidst charges that the independence of the EGE had been threatened by the

choice of appointees nominated under the latest Presidency,7the latest Opinion 22 of

the EGE, Recommendations on the Ethical Review of hESC FP7 Research Projects,8

had much to prove. This article analyses the EGE’s Opinion and suggests that it

involves a blurring of normative moral and legal orders and reliance on questionable

assumptions and inexplicable omissions in an area in which the competence of EU

institutions, including the Commission which would be implementing the recommen-

dations, are a matter of ongoing dispute. The article falls into three parts. Part I

provides a critical overview of the legal mandate and history of the EGE. Part II

analyses the inter- institutional debates behind the decision to restrict funding on

hESC research under the FP7 Programme. Part III examines Opinion 22 against this

context and suggests that the EGE has arguably introduced novel ethical constraints

which are aligned with a particular, contested moral tradition on human dignity in

Europe, and which exceed the political compromise and framework agreed by the

legislative EU’s institutions. The article concludes with the suggestion that the time has

come to rethink the constitution of the group and its role in assisting public ref‌lection

and deliberative engagement with ethical questions in a morally and culturally diverse

and democratic Europe.

I The Constitution of the EGE

Mandate

The creation of an advisory group on European ethics was originally prompted by the

regulatory challenges faced by the European Community in the wake of the rapid

advances in biotechnology and genetic engineering in the late 1980s and early 1990s.9

The need for an institutional mechanism to facilitate debate and address public concern

on the ethical issues raised by the application of the new biotechnologies was perceived

by the Commission as essential to the adoption of an EU regulatory framework to

including where it is consulted on patent law’. The Legal Affairs Committee called for the insertion of an

article in the directive providing for the creation of a new ethics committee to ‘assess all ethical aspects of

biotechnology and its utilisation, in particular with regard to patents’ (Report of 18 June 1997, Art 9a).

For a detailed discussion see A. Plomer et al,Stem Cell Patents Report: European Law & Ethics (European

Commission, 2006), available at http://www.nottingham.ac.uk/law/StemCellProject/project.report.pdf.

5Decision No 1982/2006/EC of the European Parliament and of the Council of 18 December 2006

concerning the Seventh Framework Programme of the European Community for research, technological

development and demonstration activities (2007–2013). Paragraph 30 of the Preamble states that ‘...the

Opinions of the European Group on Ethics on Science and New Technologies are and will be taken into

account’.

6See discussion below.

7(2005) 6(1) The Scientist 1104-01.

8EGE, Opinion 22: Recommendations on the ethical review of hESC FP7 research projects (20 June 2007).

9Justice Noelle Lenoir, ‘The Ethics of Biotechnology’ (2001) 4(2) The Journal of Biolaw Business 111. See

also chapter 8 of Plomer et al,op cit n4supra on which this section is based.

European Law Journal Volume 14

© 2008 The Author

840 Journal compilation © 2008 Blackwell Publishing Ltd.