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Between Compliance and Particularism Read chapter Read first chapter

2019 | OriginalPaper | Chapter

Managing Novel Food Technologies and Member States’ Interests

Shifting More Powers Towards the Member States?

Author : Ludivine Petetin

Published in: Between Compliance and Particularism

Publisher: Springer International Publishing

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Abstract

The contentiousness surrounding novel food technologies and their risks is reflected in the tensions between the different actors involved in the EU decision-making process. Asymmetric relationships between competing European and national policy choices have led EU Member States to challenge the current governance system and existing regulatory frameworks that do not accommodate consumer concerns and more generally non-scientific factors. This chapter argues that initiatives that aim to challenge and reverse the trend towards centralisation are crucial to the strengthening of the EU system by giving greater leeway to the Member States in the authorisation procedures for novel food technologies. With multilevel governance and subsidiarity, the control and influence of supra-national entities are limited and lower level entities play a growing role in the regulation of novel food technologies. In contrast, fragmentation within the risk analysis for novel food technologies favours the weight of scientific evidence within the decision-making process and encourages centralisation. This problematic fragmentation must be tackled since it prevents non-scientific factors from being considered across the whole approval systems for novel food technologies.

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previous chapter Member State Interests and European Union Law
next chapter Local Interests and Social Integration in Europe
Footnotes
1
More specifically, there are disputed adverse effects of GMOs. First, in relation to humans because of the unknown long-term effects of consuming biotech foods (including nutritional differences and allergic reactions). Second, there are environmental impacts both in relation to the environment per se (the development of super weeds, out-competition of native plants, biodiversity reduction) and effects to other organisms within the ecosystem. For instance, crops modified to kill certain pests could be toxic to non-target species. See e.g., the following US case: In re StarLink Corn Products Liability Litigation 212 F Supp 2d 828 (ND Ill 2002). See further, inter alia, Coghlan (2005) and Wolfenbarger and Phifer (2000).
 
2
Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC, [2003] OJ L106/1. In a 2018 judgment, the EU Court of Justice expanded the application of the directive to include CRISPR (Clustered Regularly Interspaced Short Palindromic Repeats) gene editing. This means that CRISPR, like GM crops, must be pre-approved before being placed on the EU market. See Judgment of 25 July 2018, Confédération paysanne and Others v Premier ministre and Ministre de l‘Agriculture, de l‘Agroalimentaire et de la Forêt, C-528/16, EU:C:2018:583.
 
3
Regulation (EC) 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed (Food and Feed Regulation), [2003] OJ L268/1; Regulation (EC) 1830/2003 of the European Parliament and of the Council of 22 September 2003 concerning the traceability and labelling of genetically modified organisms and the traceability of food and feed products produced from genetically modified organisms and amending Directive 2001/18/EC, [2003] OJ L268/24; Regulation (EU) 2015/2283 of the European Parliament and of the Council of 25 November 2015 on novel foods (Novel Foods Regulation), [2015] OJ L 327/1. The 2015 Novel Foods Regulation replaced the 1997 Novel Foods Regulation from 1 January 2018. See Regulation (EC) 258/97 of the European Parliament and of the Council of 27 January 1997 concerning novel foods and novel foods ingredients, [1997] OJ L43/1.
 
4
Article 5 Food and Feed Regulation and Article 10 Novel Foods Regulation.
 
5
Article 12 Food and Feed Regulation and Article 9 Novel Foods Regulation.
 
6
The multiple waves of reports, policy documents, agreements and EU treaties have increased the policy areas covered by the process.
 
7
Directive 2015/412/EU 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 cultivation of Genetically Modified Organisms (GMOs) in their territory, [2001] OJ L68/1.
 
8
Article 6 Food and Feed Regulation and Article 11 Novel Foods Regulation.
 
9
Article 7(1) Food and Feed Regulation.
 
10
See Article 3 TEU and Article 191 TFEU.
 
11
This is further indicated in the recent news reporting that the EFSA “copied and pasted” chunks of the scientific data provided by Monsanto in its application to place glyphosate (“Roundup Weedkiller”) on the market, Nelsen (2017).
 
12
See Article 5 TEU.
 
13
Article 5(3) TEU states there are three preconditions for intervention by EU institutions in accordance with the principle of subsidiarity: (a) the area concerned does not fall within the Union’s exclusive competence; (b) the objectives of the proposed action cannot be sufficiently achieved by the Member States (the necessity test); (c) the action can therefore, by reason of its scale or effects, be implemented more successfully by the Union (i.e., added value can be provided if the action is carried out at Union level).
 
14
For further discussion, see Wendel (2017). In the former Commission President’s view, “subsidiarity is the translation of a democratic principle”, Barroso (2009), p. 38. In this context, the proximity principle referred to in Article 10(3) TFEU must also be considered.
 
15
See Judgment of 8 June 2010, Vodafone Ltd and others, C-58/08, EU:C:2010:321, paragraph 73.
 
16
Further, when exercising this new competence, Member States remain bound by their international obligations, especially obligations under the WTO Agreements.
 
17
For the general frame of legal interpretation on overriding reasons of public interest (or mandatory requirements), see e.g., Judgment of 20 February 1979, Rewe-Zentral v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon), 120/78, EU:C:1979:42. Any adopted measure must also be in line with the principles of proportionality and non-discrimination.
 
18
The list of grounds includes the following: environmental policy objectives, land use, socioeconomic impacts and public policy. The list of grounds is non-exhaustive. In the post-authorisation stage, claims must be substantiated under Article 36 TFEU and the case-law on overriding reasons of public interest, and must meet the requirement of proportionality. Further, any opt-outs justified under “environmental policy objectives” must not be contrary to the EFSA’s environmental assessment of the specific GMO under authorisation.
 
19
World trade issues are beyond the scope of this chapter.
 
20
For an analysis, see Graham and Hsia (2002).
 
21
Article 7, Regulation (EC) 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety, [2002] OJ L31/1.
 
22
For more on the precautionary principle in food law, see Cazala (2004), Macmaolain (2007), de Sadeleer (2006) and Szajkowska (2012).
 
23
A risk analysis is comprised of three steps: a risk assessment followed by risk management and risk communication.
 
24
See also Anker and Grossman (2009).
 
25
See also de Sadeleer arguing for a role for the principle within both risk assessment and risk management, de Sadeleer (2007), p. 18.
 
26
Recital 32 Food and Feed Regulation.
 
27
Article 12(1)(d) Novel Foods Regulation.
 
28
Article 10(6) Novel Foods Regulation.
 
29
Recital 19 and Article 3(12) General Food Law Regulation.
 
30
For more on such a “co-production” approach to governance, see Jasanoff (2004).
 
Literature
Anker, H. T., & Grossman, M. R. (2009). Authorization of genetically modified organisms: Precaution in US and EC law. European Food and Feed Law Review, 4, 3–22.
Barroso, J. M. (2009). Political guidelines for the next commission. Brussels: European Commission.
Bergkamp, L. (2002). Understanding the precautionary principle. Environmental Liability, 10(2), 67–82.
Cazala, J. (2004). Food safety and the precautionary principle: The legitimate moderation of Community courts. European Law Journal, 10, 539–554.CrossRef
Codex Alimentarius Commission. (2008). Principles for the risk analysis of foods derived from modern biotechnology. FAO CAC/GL 44-2008.
Codex Alimentarius Commission. (2010). Procedural manual. Rome: FAO and WHO.
Coghlan, A. (2005, August 27). Enter the superweed. New Scientist, 17.
Craig, P. (2012). Subsidiarity: A legal and political analysis. Journal of Common Market Studies, 50, 72–87.CrossRef
Davies, G. (2006). Subsidiarity: The wrong idea, in the wrong place, at the wrong time. Common Market Law Review, 43, 63–84.CrossRef
de Sadeleer, N. (2006). The precautionary principle in EC health and environmental law. European Law Journal, 12, 139–172.CrossRef
de Sadeleer, N. (2007). The precautionary principle in European Community health and environmental law: Sword or shield for the Nordic countries? In N. de Sadeleer (Ed.), Implementing the precautionary principle: Approaches from the Nordic countries, EU and US (pp. 10–58). London: Earthscan.
Dobbs, M. (2016). Attaining subsidiarity-based multilevel governance of genetically modified cultivation? Journal of Environmental Law, 28, 245–273.CrossRef
Echols, M. A. (1998). Food safety regulation in the European Union and the United States: Different cultures, different laws. Columbia Journal of European Law, 4, 525–543.
Engel, A., & Petetin, L. (2018). International obligations and devolved powers – Ploughing through competences and GM crops. Environmental Law Review, 20, 16–31.CrossRef
European Commission. (2000). Commission Communication on the precautionary principle COM(2000) 1 final.
European Commission. (2001). White Paper on European governance COM(2001) 428 final.
European Commission. (2010a). Commission Communication: The CAP towards 2020: Meeting the food, natural resources and territorial challenges of the future COM(2010) 672 final.
European Commission. (2013a). Proposal for a Council Directive on the placing on the market of food from animal clones COM(2013) 893.
European Commission. (2013b). Proposal for a Directive of the European Parliament and of the Council on the cloning of animals of the bovine, porcine, ovine, caprine and equine species kept and reproduced for farming purposes COM(2013) 892.
European Commission. (2015a). Commission communication reviewing the decision-making process on GMOs COM(2015) 176 final.
European Commission. (2015b). Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1829/2003 as regards the possibility for the Member States to restrict or prohibit the use of genetically modified food and feed on their territory (GM Food Proposal) COM (2015) 177 final.
European Parliament. (2010). Position of the European Parliament adopted at second reading on 7 July 2010 with a view to the adoption of Regulation (EU) No.../2010 of the European Parliament and of the Council on novel foods, amending Regulation (EC) No 1331/2008 and repealing Regulation (EC) No 258/97 and Commission Regulation (EC) No 1852/2001, [2011] OJ C351E/175.
Friant-Perrot, M. (2010). The European Union regulatory regime for genetically modified organisms and its integration into Community food law and policy. In L. Bodiguel & M. Cardwell (Eds.), The regulation of genetically modified organisms: Comparative approaches (pp. 79–100). Oxford: Oxford University Press.CrossRef
Geelhoed, M. (2016). Divided in diversity: Reforming the EU’s GMO regime. Cambridge Yearbook of European Legal Studies, 18, 20–44.CrossRef
Graham, J. D., & Hsia, S. (2002). Europe’s precautionary principle: Promise and pitfalls. Journal of Risk Research, 5, 371–390.CrossRef
Hooghe, L. (2001). The European Commission and the integration of Europe: Images of governance. New York: Cambridge University Press.
Hooghe, L. (2012). The European Commission in the 21st century: Core beliefs on EU governance (KFG Working Paper 38). Freie Universität Berlin.
Hooghe, L., & Marks, G. (2001). Multi-level governance and European integration. Lanham: Rowman and Littlefield.
Jasanoff, S. (Ed.). (2004). States of knowledge: The co-production of science and social order. New York/London: Routledge.
Jasanoff, S. (2006). Biotechnology and empire: The global power of seeds and science. Osiris, 21, 273–292.CrossRef
Jasanoff, S. (2011). Constitutional moments in governing science and technology. Science and Engineering Ethics, 17, 621–638.CrossRef
Kass, L. (1997, June 2). The wisdom of repugnance. New Republic, 17–26.
Laaninen, T. (2015). Member States’ possibility to ‘opt out’ from GM food and feed import authorisations. European Parliamentary Research Service, PE 569.029.
Lee, M. (2008). EU regulation of GMOs: Law and decision-making for a new technology. Cheltenham: Edward Elgar.CrossRef
Lee, M. (2016). GMOs in the internal market: New legislation on national flexibility. Modern Law Review, 79, 317–340.CrossRef
Levidow, L., & Boschert, K. (2008). Coexistence or contradiction? GM crops versus alternative agricultures in Europe. Geoforum, 39, 174–190.CrossRef
Levidow, L., & Carr, S. (2007). Europeanising advisory expertise: The role of ‘independent, objective, and transparent’ scientific advice in Agri-biotech regulation. Environment and Planning C: Government and Policy, 26, 880–895.CrossRef
Macmaolain, C. (2007). EU food law: Protecting consumers and health. Oxford: Hart Publishing.
Marks, G., Hooghe, L., & Blank, K. (1996). European integration since the 1980s: State-centric versus multi-level governance. Journal of Common Market Studies, 34, 341–378.CrossRef
Marsden, T., Lee, R., Flynn, A., & Thankappan, S. (Eds.). (2010). The new regulation and governance of food: Beyond the food crisis? New York/London: Routledge.
McMahon, J. (2007). EU agricultural law. Oxford: Oxford University Press.
Petetin, L. (2009). Clone wars? The challenges of cloned food in EU, US and WTO law. Environmental Law Review, 11, 246–263.CrossRef
Petetin, L. (2014). Frankenburgers, risks and approval. European Journal of Risk Regulation, 5, 168–186.CrossRef
Petetin, L. (2017a). Precaution and equivalence – The critical interplay in EU biotech foods. European Law Review, 42, 831–847.
Petetin, L. (2017b). The precautionary principle and non-scientific factors in biotech foods. European Journal of Risk Regulation, 8, 106–111.CrossRef
Poli, S. (2013). The Member States’ long and winding road to partial regulatory autonomy in cultivating genetically modified crops in the EU. European Journal of Risk Regulation, 2, 143–157.CrossRef
Pollack, M. (2003). The engines of European integration: Delegation, agency and agenda setting in the EU. Oxford: Oxford University Press.CrossRef
Randour, F., Janssens, C., & Delreux, T. (2014). The cultivation of genetically modified organisms in the European Union: A necessary trade-off? Journal of Common Market Studies, 52, 1307–1323.CrossRef
Szajkowska, A. (2010). The impact of the definition of the precautionary principle in EU food law. Common Market Law Review, 47, 173–196.CrossRef
Szajkowska, A. (2012). Regulating food law: Risk analysis and the precautionary principle as general principles of EU food law. Wageningen: Wageningen Academic Publishers.CrossRef
UKGOS. (2011). Foresight report on the future of food and farming: Challenges and choices for global sustainability. UK Government Office for Science.
Vandenbruwaene, W. (2014). Multi-level governance through a constitutional prism. Maastricht Journal of European and Comparative Law, 2, 229–242.CrossRef
Van der Meulen, B., & Yusuf, N. (2014). One-door-one-key principle: Observations regarding integration of GM authorization procedures in the EU. Penn State Law Review, 118(4), 877–891.
Van Kersbergen, K., & Verbeek, B. (2004). Subsidiarity as a principle of governance in the European Union. Comparative European Politics, 2, 142–162.CrossRef
Vischer, R. K. (2001). Subsidiarity as a principle of governance: Beyond devolution. Indiana Law Review, 35, 103–142.
Weatherill, S. (2004). Competence creep and competence control. Yearbook of European Law, 23, 1–55.CrossRef
Wendel, M. (2017). International trade agreements and democratic participation. European Yearbook of International Economic Law, 8, 61–81.CrossRef
Wolfenbarger, L. L., & Phifer, P. R. (2000). The ecological risks and benefits of genetically engineered plants. Science, 290, 2088–2093.CrossRef
Metadata
Title
Managing Novel Food Technologies and Member States’ Interests
Author
Ludivine Petetin
Copyright Year
2019
Publisher
Springer International Publishing
Book
Between Compliance and Particularism

Print ISBN: 978-3-030-05781-7

Electronic ISBN: 978-3-030-05782-4

Copyright Year: 2019

DOI
https://doi.org/10.1007/978-3-030-05782-4_11