GMO regulation in Europe: undue delegation, abdication or design flaw?

Paskalev, Vesco

Abstract

On 22 April 2015 the European Commission published a review of the current GMO legislation (the GM Review) and tabled a proposal for its amendment (the GM Proposal). The GM Proposal aims to allow to the member states to ban on their territory the use of GMOs authorised under the EU legislation. This is very similar to the possibility for opting out from cultivation of authorised GMOs which was finally adopted earlier this year. While this may look like a new trend, all the more interesting in the context of possible Brexit, Grexit and Danish opt-out from the provisions on Justice and Home Affairs, the present article will focus only on the GM Review, which essentially admits that the existing GMO regime is a failure.4 Indeed, a dozen years after the relevant legislation has been adopted, only one decision for authorisation of a new GM crop was adopted – the Amflora potato – and it was annulled by the General Court.5 Decisions for marketing have fared slightly better – there are a fewd ozen authorized GMOs – but still the decisions take many years, raise persistent controversies and are adopted without the support by the relevant committee of national experts. It is remarkable that while the Commission has been constantly in favour of the authorisation of new GMO varieties, its assessments persistently fail to convince the Member States so the expert committees (and the Council) have never reached any decision in any direction. As the stalemate leaves the Commission in position to proceed with the authorisations, and it routinely does so, sometimes in defiance of a clear majority of member states against it. This is a responsibility which its current President rightly believes it should not bear.6 However, instead of finding a way to restore the credibility of the regulatory process, now the Commission is proposing to keep it ‘intact’, and only allow to the Member States to opt out of it. In the following I shall first take the Commission’s understanding of its role in the existing regime on its face value and show that this is inherently contradictory and in violation of the EU law as interpreted by the Union courts. In the second section, I shall question the soundness of this interpretation of the case law and argue that it is wrong, and that in this way the Commission is abdicating fromits responsibility to make informed choices itself. The concluding section briefly discusses a possible way out of the trap.

Citation

Paskalev, V. (2015). GMO regulation in Europe: undue delegation, abdication or design flaw?. European Journal of Risk Regulation, 6(4), 573-578. https://doi.org/10.1017/s1867299x00005110

• Journal Article Type: Article
• Acceptance Date: Aug 24, 2015
• Online Publication Date: Jan 20, 2017
• Publication Date: 2015-12
• Deposit Date: Jul 27, 2016
• Publicly Available Date: Jul 27, 2016
• Journal: European journal of risk regulation
• Print ISSN: 1867-299X
• Publisher: Cambridge University Press
• Peer Reviewed: Peer Reviewed
• Volume: 6
• Issue: 4
• Pages: 573-578
• DOI: https://doi.org/10.1017/s1867299x00005110
• Keywords: GMO legislation; EU legislation
• Public URL: https://hull-repository.worktribe.com/output/441825
• Publisher URL: http://ejrr.lexxion.eu/article/EJRR/2015/4/12
• Additional Information: This is the authors accepted manuscript of an article accepted for publication in: European journal of risk regulation, 2015, v.6 issue 4.
• Contract Date: Jul 27, 2016