3.3.3.3 Status Quo of Ethics and Morality
In EU primary law, we have seen ‘morality’ used as an umbrella to protect MS from EU interference in sensitive fields.
246 We can find a similar [1.] ‘protection shield’-approach in EU secondary law. As we have already seen in the context of Horizon 2020, the use of human stem cells is “subject to stringent ethics review”; this provision continues by stating that “[n]o project involving the use of human embryonic stem cells should be funded that does not obtain the necessary approvals from the Member States”.
247
The wording is even stronger in case of genetically modified food and organisms, where reference is made to “competence [sic] of Member States as regards ethical issues.”
248
The example of EU patient mobility has already been mentioned in terms of consequences of unethical behaviour. According to this directive, patients’ rights are limited insofar as these rights may not be used in a way which “undermin[es] the fundamental ethical choices of Member States”.
249 This reference to the term ‘ethics’ in this EU legal document is clearly motivated by the fear that a broad interpretation of the term “health services” could entitle EU citizens to use certain sensitive health services abroad.
250 Thus, ethics, again, serves as a protection shield against EU interference.
Moreover, we have also already seen the example of Directive Biotech, which, amongst others, excludes the patentability of “uses of human embryos for industrial or commercial purposes”.
251 The TRIPs Agreement foresees the possibility to exclude inventions from patentability, if they are against
ordre public or morality.
252 When making use of this possibility, the directive makes clear that “
ordre public and morality correspond in particular to ethical or moral principles recognised in a Member State”
253; hence, not at EU level. Further examples of referring to the national level for the determination of ethics can be found in the field of research.
254
After this category of ethics being used as a ‘protection shield’, we find another category, where ethics (or morality
255) is used as [2.] a supportive argument for a certain legal solution. Here, it is less of a problem, if the content of ethics is not determined, as the legal solution itself might fulfil the requirements of legal certainty. This is the case for the statement that consumers in the EU would “find it morally unacceptable that their increased use of biofuels could have the effect of destroying biodiverse lands”,
256 or that “[c]onsumers’ choices can be influenced by, inter alia, health, economic, environmental, social and ethical considerations”.
257 In another example, the killing of seals is qualified as morally problematic as such, beside commercial killing being qualified as more problematic than traditional hunting by Inuit.
258
In context of ‘novel food’, we find a supportive argument to contribute to animal welfare and ethics: “[…] tests on animals should be replaced, reduced or refined. Therefore, […] duplication of animal testing should be avoided, where possible. Pursuing this
goal could reduce possible
animal welfare and ethical concerns with regard to novel food applications”.
259
Apart from ethics used as a supportive argument, we can further identify references in order to create [3.] a parallel ethical assessment beside the legal one. In this category, we can identify coexistence of law and ethics (that is to say, a parallel system), with Directive Biotech stating that “substantive patent
law cannot serve to
replace or render superfluous […] compliance with certain
ethical standards”
260 and that “
ethical or moral principles
supplement the standard
legal examinations under patent law”.
261 The same holds true in the field of protection of the EUs financial interests, where the definition of ‘professional misconduct’ “means violation of
laws or regulations
or of
ethical standards of the profession to which the person belongs
”.
262
In the field of transferable securities, we find a noteworthy statement of the European Commission concerning the relationship of EU harmonization and ethics. “This code of conduct, to be issued in the form of a Commission recommendation, must be seen separately from the Commission’s other harmonization work in this sector […] because the
ethical approach has been given priority over the legislative approach”.
263
A similar parallelism can be found in case of staff responsibility (of the EU Institute for Security Studies): “Employees shall abstain from any public action or statement or publication if such action, statement or publication is incompatible with the duties or obligations of an international civil servant or liable to involve the moral or material responsibility of the Institute.”
264
In addition to the parallelism of law and ethics, a similar relation can be addressed between science and ethics. In the context of Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), we find several references to the requirement of being both “scientifically and ethically justified”.
265,
266
These parallel situations are extended to a more holistic view in case of the EC proposal on health technology assessment (HTA), which refers to economic, medical, organisational, social, legal and ethical issues.
267
After ethics only serving as a ‘protection shield’, or being used as a ‘supportive argument’, we have now seen ethics in terms of a parallel assessment of legal as well as ethical requirements. Already the last category requires a substantive determination, of what is meant by (un-)ethical behaviour. This leads us to our next (and very important) category, of [4.] ethics being determined by ‘ethics committees’. There are committees, which focus exclusively on ethics, or others, where ethics is one of the aspects to be covered.
268 These committees can be installed either at [a.] EU or at [b.] national level and can take various forms. The underlying idea of all these committees is to outsource this ethical assessment, in order to achieve independent, objective and good quality opinions.
However, there are also examples where the EC
269 itself is tasked with the assessment at [4.a.] EU level. In Horizon 2020 the EC “shall systematically carry out ethics reviews for proposals raising ethical issues” by verifying “the respect of ethical principles and legislation”.
270 From a procedural perspective, this “process of the ethics review [has to be] as transparent as possible and […] carried out in a timely manner”.
271 The “grant agreement shall, where appropriate, contain provisions ensuring the respect of
ethical principles, including the establishment of an
independent ethics board and the right of the Commission to carry out
an ethics audit by independent experts”.
272,
273
Due to its importance for our topic, the already mentioned EGE will be covered in a distinct chapter.
274 However, it has also been tasked by different legal documents with ethical assessments. One year after the EGE’s establishment in 1997, Directive Biotech provided that the EGE “evaluates all [sic!] ethical aspects of biotechnology”.
275 In the field of GMOs, the already mentioned Directive on the deliberate release into the environment,
276 provides that “the Commission shall, on its own initiative or at the request of the [EP] or the Council, consult
any committee it has created with a view to obtaining its advice on the
ethical implications of
biotechnology,
such as [EGE], on ethical issues of a general nature”.
277 Such consultation has to be “conducted under clear rules of openness, transparency and public accessibility”.
278 Always keeping in mind the fact that EGEs opinions are not legally binding, the wording in ‘Regulation GM food’ is alleviated, as the “Commission, on its own initiative or at the request of a Member State,
may consult [EGE] or any other appropriate body”.
279 Not as regards the procedure (consultation), but to the output, it is stated that the opinions have to be made “available to the public”.
280
Apart from the EGE, there are several other institutional ethics committees, notably in the financial field. The European Investment Bank (EIB) follows a combined institutional and substantive approach, by having established an ‘Ethics and Compliance Committee’, which “shall rule on any potential conflict of interest” based on legal—not ethical—provisions.
281 Recently, the EIB has strengthened the role of this Committee “by introducing the possibility for this Committee to provide opinions on
any ethical matter concerning a member of the Management Committee or of the Board of Directors”.
282 In addition, the European Central Bank (ECB) follows a combined approach for the TARGET2-Securities Board, consisting of a code of conduct
283 and an ‘Ethics Officer’.
284 Members can contact the Ethics Officer in order to seek advice on an ad hoc basis.
285 The ECB
286 itself has established an ‘Ethics Committee’, due to the “increased level of
public awareness and scrutiny [which] requires the ECB to have in place, and strictly adhere to,
state-
of-
the-
art ethics rules in order to safeguard the ECB’s
integrity and avoid reputational risks”
287; it shall provide advice on questions of ethics based on individual requests.
288
Finally, in a similar way as the EGE advises the EC, the ‘European Data Protection Supervisor’ has appointed an ‘Ethics Advisory Group’ as an “external advisory group on the ethical dimensions of data protection”.
289 One reason for the establishment of this Body is technological advancement (big data computing and machine learning), which allows for the collection and usage of personal data “in increasingly
opaque and complex ways, thus posing significant threats to
privacy and
human dignity”.
290
Apart from ethics committees at EU level, there are also examples of ethics committees at [4.b.] national level.
A combined approach of both EU (the role of the EC has already been described) and national ethical scrutiny can be found in Horizon 2020. There participants are not only obliged to “comply with national legislation, regulations and ethical rules in the countries where the action will be carried out”, but also “[w]here appropriate, [to] seek the approval of the relevant national or local ethics committees prior to the start of the action”.
291
Also in the field of the research fund for coal and steel, participants shall, where appropriate, “seek the approval of the relevant national or local ethics committees prior to the start of the action”.
292
It is again Directive GMOs, which states “Member States should be able to consult
any committee they have established with a view to obtaining advice on the ethical implications of
biotechnology”.
293 This statement stands beside the above-mentioned possibility of the EC, to consult the EGE “on ethical issues of a
general nature”.
294 Evaluation by and consultation with national or local ethics committees is also foreseen for nanosciences and nanotechnologies research,
295 or in the case of ionizing radiation.
296
In the field of ‘clinical trials’,
297 ‘medical devices’
298 and ‘in vitro diagnostic medical devices’,
299 the three corresponding regulations all operate based on the same following definition of an ethics committee. “‘Ethics committee’ means an
independent body established
in a Member State in accordance with the law of that Member State and empowered to give
opinions for the purposes of this Regulation, taking into account the views of
laypersons, in particular patients or patients’ organisations”.
300 The ethical review performed by this national ethics committee is a requirement for prior authorisation, where a “clinical trial shall be subject to scientific and ethical review”
301; similar rules apply for the two other examples mentioned above.
302
Hence, as we have seen, ethics committees cannot only issue opinions on request or on their own initiative (for example, EGE), but can also play a decisive role in authorization procedures, not only for research grants, but also for manufacturing processes.
One task of ethics committees can also be to issue codes of conduct. Codes of conduct have the clear advantage that they are more detailed than just a general reference to ethical standards. These [5.] codes of conduct can be located both at [a.] EU or at [b.] national level.
303
At [5.a.] EU level we find the already mentioned “Code of Conduct for responsible nanosciences and nanotechnologies research”.
304 This code is quite detailed, comprising, amongst others, the principles of comprehensibility, respect of fundamental rights, the well-being of individuals and society, sustainability, the precautionary principle, inclusiveness (openness, transparency, and access to information), excellence, innovation, and accountability.
305 Hence, ethics is only part of the general principles mentioned therein.
In the case of ‘Directive Services’, we find a provision, which encourages “the setting up of codes of conduct, in particular, by professional bodies, organisations and associations at [EU] level”. Similar to the case of the example of nanosciences, this code of conduct is also not only about (professional) ethics.
306
Again at EU level, we find a non-binding recommendation, the already mentioned European Charter for Researchers, which, apart from referring to recognized ethical principles and so forth, also requires researchers to “adhere to […] ethical standards as documented in the different national, sectoral or institutional codes of ethics”.
307 It therefore does not create a code of conduct, but just refers to existing ones, also [5.b.] at national level.
Besides examples of non-binding recommendations, we also find an obligation for the MS regarding the transposition of EU directive against child pornography, according to which MS have to undertake preventive action “such as the drawing up and reinforcement of a code of conduct and self-regulatory mechanisms in the tourism industry, the setting-up of a code of ethics” and so forth.
308 Although the transposition of the directive into national law is binding in itself, thus the MS enjoy some flexibility as regards the form and methods of achieving this goal.
After ethics committees and codes of conduct, the substance of a reference to ethics can also be determined via references to [6.] other (international) documents.
In the context of the already mentioned three related examples of ‘clinical trials’,
309 ‘medical devices’
310 and ‘in vitro diagnostic medical devices’,
311 reference is made to “the most recent version of the World Medical Association Declaration of Helsinki on Ethical Principles for Medical Research Involving Human Subjects”.
312 This Helsinki Declaration
313 has the advantage not only of having been elaborated at a ‘worldwide’ basis, but also of providing relatively detailed rules as regards ethical behaviour. Of course, it has to be acknowledged that EU law can only refer to such detailed guidelines if they exist and have been elaborated by an acknowledged body in the relevant field.
314
‘Regulation in vitro medical devices’ replaces the previous directive in this field, which for ethical requirements in the context of the removal, collection and use of tissues, cells and substances of human origin, has referred to the Council of Europe’s Oviedo convention.
315,
316
It is also worth mentioning the example of the directive on statutory audits, which requires adherence to “highest ethical standards”.
317 In this context, it is the Commission’s task to “adopt implementing measures on professional ethics as minimum standards [and when] doing so, it might consider the principles contained in the International Federation of Accountants (IFAC) Code of Ethics”.
318 Thus, the Commission is invited to consider this international code.
Finally, yet importantly, there is also one example, where in the context of biocidal products reference is made to “internationally accepted ethical standards”, without further guidance of how these standards are defined.
319
After ethics committees, codes of conduct, and the determination via references to other (international) documents, we finally come to a category, where some information concerning the content or understanding of ethics can be found [7.] in the relevant legal document itself.
In the field of statutory audit, when mentioning “ethical and independence requirements”, etc., the relevant provision on quality assurance of this regulation refers both to other chapters of the same regulation (as well as to another legal document
320).
321
Another example of determination of content in the relevant legal document itself can be found in the field of mining. While “ethical mining” is not explicitly defined, a systematic interpretation of the whole directive on supply chain due diligence obligations clearly refers to the affected region (“in particular in the African Great Lakes Region”), to the goods of import in question (gold, etc.), as well as the reasons of concern (conflicts, child labour, sexual violence, the disappearance of people, etc.). All this exhibits why the mining of these goods in these circumstances is deemed wrong.
322
In the context of placing of proprietary medicinal products on the market, we find an example of a clear statement what is seen as unethical and what should be the consequences. “Since a full placebo comparison will not often be feasible or ethically acceptable in convulsive epilepsy, it is important in the later phases of evaluation to carry out controlled (randomized) clinical trials […]”.
323
In addition, in the field of medicinal products for human use we find some thoughts on the treatment of control groups against the background of ethical considerations. “[T]hus it may, in some instances, be more pertinent to compare the efficacy of a new medicinal product with that of an established medicinal product of proven therapeutic value rather than with the effect of a placebo”.
324 The same directive also exempts applicants from certain documentation if “it would be contrary to generally accepted principles of medical ethics to collect such information”.
325
In Horizon 2020 actions, falling within the scope of ‘Regulation participation Horizon 2020’ should “be in conformity […] with ethical principles, which include avoiding any breach of research integrity”.
326 In addition, Art 19 (entitled “Ethical principles”) of ‘Regulation establishing Horizon 2020’, after stipulating that “[a]ll the research and innovation activities carried out under Horizon 2020 shall comply with ethical principles [and human rights]”, excludes the following fields of research from funding: “human cloning for reproductive purposes”, “genetic heritage of human beings”, as well as “research activities intended to create human embryos solely for the purpose of research or for the purpose of stem cell procurement, including by means of somatic cell nuclear transfer”.
327 This can be seen as a European consensus with regard to bioethics, although one could argue that this provision is ‘only’ about funding and not about the legality of these activities.
Although this book is based on a broad understanding of bioethics, the examples mentioned so far always referred to humans. Nonetheless, there are also examples where the beneficiaries of ethical or moral principles are not humans, but animals, plants or the environment.
328 Especially animals are protected by ethical principles in different fields.
Bearing some resemblance to human dignity, the directive on the protection of animals used for scientific purposes asserts that animals “have an
intrinsic value which must be respected”.
329 As a practical consequence arising from this approach, “animals should always be treated as
sentient creatures and their use in procedures should be restricted to areas which may ultimately benefit human or animal health, or the environment”, and their use “for scientific or educational purposes should therefore only be considered where a non-animal alternative is unavailable”.
330 This directive provides even more detailed statements with respect to the practical consequences of the ‘intrinsic value’ of animals, as there are restrictions for the use of non-human primates.
331 Due to ethical considerations, the directive also sets a maximum threshold of permissible pain and therefore prohibits “the performance of procedures that result in severe pain, suffering or distress, which is likely to be long-lasting and cannot be ameliorated”.
332
Apart from this directive, ethical considerations concerning animals are also the reason why mass slaughtering has been declared as being, amongst other things, “ethically questionable”,
333 or, why there can even be “an ethical duty to kill productive animals which are in severe pain where there is no economically viable way to alleviate such pain”.
334
After a mere declaration annexed to the Maastricht Treaty
335 and a protocol annexed to the Amsterdam Treaty,
336 Art 13 TFEU now entails a horizontal clause according to which both the EU and the MS shall “pay full regard to the welfare requirements of animals”, because animals are “sentient beings”.
337 In Horizon 2020, this Art 13 TFEU is addressed in the context of respect for “fundamental ethical principles” with the practical consequence that “the use of animals in research and testing should be reduced, with a view ultimately to replacing their use”.
338
Leaving the field of bioethics, the already mentioned directive on statutory audits provides another example pertaining to this category where some understandings of the practical consequences of ethics are provided. After stating that statutory auditors should adhere to “the highest ethical standards”, the directive provides that they should be “subject to professional ethics, covering at least their public-interest function, their integrity and objectivity and their professional competence and due care”
339; further details have to be implemented by the MS.
340
In the following example, ethics is not determined by the EU, MS and so forth on a collective basis, but by a single business entity. According to the Regulation on European social entrepreneurship funds, so called “[q]ualifying social entrepreneurship funds should invest in a manner consistent with
their ethical investment strategy,
for instance they should
not undertake investments that finance the weapons industry, that risk breaches of human rights or that entail electronic waste-dumping”.
341
The combined approach of the ECB, that is to say an Ethics Officer plus principles (such as avoidance of conflicts of interest, confidentiality, transparency and openness, etc.) contained in a code of conduct, has already been mentioned.
342 Likewise, the European Anti-Fraud Office (OLAF) merely follows a substantive approach for their Supervisory Committee. Art 4, entitled ‘ethics’, requires the members to act independently, neither seeking nor taking instructions from others, not to deal with matters where they have a personal interest, to demonstrate confidentiality, and to adhere to an obligation of notification if any such situation occurs.
343
In an indirect way, we can also add examples, where reference is made to notions that have a pre-determined meaning from another field, such as public morality,
344 which has been shaped by the CJEU,
345 or moral hazard,
346 as a notion of microeconomics.
347 The example of moral hazard also derives from the financial crisis, where the Commission’s banking communication refers several times to ‘moral hazard’.
348 In a similar way as for international agreements, moral hazard is addressed in the context of burden sharing.
349 This concept can be explained by referring to a situation caused by the immoral behaviour of a single body that is dangerous for a bigger group (society). Most people would agree to qualify the risky behaviour of certain banks to the detriment of taxpayers (whereas bonuses would still be paid, maybe also with the help of those taxpayers’ subsidies) as immoral.
350
After having seen determination by ethics committees, codes of conduct, references to international documents and further information provided by EU law itself, we finally arrive at the last category, that is, EU law, where ethics [8.] remains undetermined.
The example of patient mobility has already been mentioned in the category of ‘non-interference’, where patients do not have a right to cross-border healthcare because the directive shall not “undermine the fundamental ethical choices of Member States”.
351 This undetermined provision can have a significant impact on patients seeking cross-border healthcare. In fact, some MS feared the application of this directive to sensitive issues “like euthanasia, DNA-testing or IVF”.
352 Contrary to what one would expect, it was not the Council of Ministers but the EP that at a very early stage of the legislative procedure, proposed amendments making clear that “[n]o provision of this Directive should be interpreted in such a way as to undermine the fundamental ethical choices of Member States”.
353 This was strengthened by emphasizing that “[n]otwithstanding those common values it is accepted that Member States take
different decisions on
ethical grounds as regards the availability of certain treatments and the concrete access conditions [and that this] Directive is without prejudice to
ethical diversity”.
354 The question remains, as to whether this provision has to be interpreted in a narrow sense, as it requires ‘fundamental’ ethical choices. Moreover, only the legal materials help to shed more light on the void of this undetermined concept.
While this example refers to the MS to determine ethics in this regard, the following examples provide no information whatsoever on the understanding behind the term of ethics used in those documents, of both a binding and non-binding nature.
One example of a binding nature is about food law, where it has been acknowledged that scientific risk assessment alone might not provide all necessary information for, but where also “societal, economic, traditional, ethical and environmental factors” have to be considered.
355 The reference to ethics might be very general (one factor amongst others to be taken into account), but does not mitigate the fact that the concept of ethics remains undetermined.
Other examples of non-determined references to ethics are as follows
356: “
scientific ethics”,
357 “
relevant ethical principles”,
358 “
business ethics standards”,
359 “
professional ethics”,
360 “ethical principles, which
include avoiding any breach of
research integrity”,
361 or “environmental
and ethical considerations”.
362 In another reference to “ethical or environmental reasons”,
363 this regulation further refers to another document,
364 but without further clarification on the determination of ethics. In addition, the new General Data Protection Regulation (GDPR)
365 refers to “recognised ethical standards for scientific research”,
366 as well as “ethics for regulated professions”.
367 Besides ethics, in the field of trademark, we find a reference to “accepted principles of morality” in both the corresponding EU directive
368 and regulation.
369,
370
Another example refers to the European Council,
371 which expressed in its Stockholm presidency conclusions from 2001 the need to “strengthen the European biotechnology sector’s competitiveness”, while ensuring that this is “consistent with common fundamental values and ethical principles”.
372 Some could take the view that there is no need for a (purely) political document to provide detailed statements, nonetheless, also in this case we lack further guidance as to the understanding of ethics.
The Council (of Ministers) resolution concerning fundamental health policy choices is another example of a non-binding document, taking ‘only’ note of some topics, “which warrant joint consideration”, such as “revision of medical studies syllabuses in order to incorporate the relevant economic, legal, ethical and social aspects necessary to ensure that practitioners dispense adequate health care”.
373 This example is comparable to the one of port State inspectors, where the content of ethics as part of a training programme is not determined.
374 Although there is no further information on what constitutes an ethical syllabus, the MS competence
375 for both education and health might be the legally based reason why this non-legal term should be defined by the MS.
The same idea can hold true for other health related (non-binding) documents in the context of cancer screening
376 and hereditary illnesses
377 on the one hand, and for lifelong learning
378 on the other.
Within the shared competence of the internal market,
379 we find one example of a task in the public interest, which is about “doctors or veterinary bodies ensuring that their members conform to ethical or sanitary rules”.
380 This example adds up to our list of undetermined references to ethics, where a possible solution could be to see those bodies in charge of defining those ethical rules.