‘Food for Thought’: Reconciling European Risks and Traditional Ways of Life
| Author | Damian Chalmers |
| Published date | 01 July 2003 |
| DOI | http://doi.org/10.1111/1468-2230.6604003 |
| Date | 01 July 2003 |
‘Food for Thought’: Reconciling European Risks and
Traditional Ways of Life
Damian Chalmers
n
The European Food Safety Authority marks a new stage in European Union
governance. It has no direct regulatory powers, but is entrusted with developing
norms of food safety, which are to inform the material content of EC food law.
The hope is that its independence and expertise will restore popular confidence
both in the EU and in the food we eat. The irreducible nature of lay-expert
conflicts about hazard suggests that a more likely scenario is that such disputes
become recast as opposition to EC law. Such conflict is most likely to manifest
itself in national courts through challenges to or non-compliance with EC law. The
current principles for resolution of such conflicts are hopelessly outmoded. The
article, therefore, argues for a constitutional resettlement, which sets out principles
germane to the nature of the EC regime, namely that of a multi-level regulatory
State. It argues for a new defence of regulatory balance. Individuals could argue
for the disapplication of EC norms where these violated a valued local regime
which had given consideration to the issues raised in the EC legislation and whose
positive value to its subjects exceeded its negative impact on the interests protected
by the EC legislation.
Introduction
What we eat has shaped the contours of EU government and law. Every student
learns EC law through a series of fables associated with national dishes and drinks.
Cassis de Dijon, German beer, Italian pasta, feta cheese, ‘turrones de Alicante’,
Swedish spirits and snuff and Belgian chocolate have all provoked important
episodes in the development of EU law. No food has threatened, however, to be
more central to the constitution of the EU than British beef. The 1996 BSE crisis
cast doubt on the EU’s ability to govern. It threw up national defiance and popular
concern about EU governance, as well as exposing a world of incompetence and
back room deals. Yet, the final institutional response appears, at first sight, to be
underwhelming, with the creation of yet another arcane, specialised agency, the
European Food Safety Authority (EFSA), whose central task seems to be no more
than to provide scientific opinions on food safety.
1
After a discussion of the origins and powers of the Authority, the second part of
this essay argues that the radicalism of Authority lies in its introducing more
explicitly than before a politics of knowledge into EC law.
2
For the Authority does
n
London School of Economics and Political Science. This paper was based on a presentation
given at a conference on ‘Food Security’ in Aix-la-Provence on 14 June 2002. The author is
grateful to all participants for their comments. He is particularly grateful to Declan Roche for
extensive comments. All mistakes are his own.
1 Regulation 178/2002, OJ 2002, L 31/1.
2 The EFSA model is acknowledged in the Commission White Paper on Governance as the shape
of things to come. EC Commission, White Paper on European Governance COM (2001) 428, 24.
It has already been emulated in the creation of two other agencies, the European Maritime Safety
Agency and the European Aviation Safety Agency, and the Commission has also proposed a
European Network and Information Security Agency. Regulation 1406/2002/EC establishing a
European Maritime Safety Agency, OJ 2002, L 208/1; Regulation 1592/2002/EC establishing a
rThe Modern Law Review Limited 2003. (MLR 66:4, July). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
532
not carry out its work in splendid isolation, but sits at the hub of a new legal
regime on food safety. It is a new normative agency whose norms of food safety
occupy a privileged position within the law-making process in that they are
intended to influence and largely determine the material content of food law
within the European Union. The hope is that this will restore consumer confidence
in food law.
The third part of this essay argues that the weak institutional position of the
Authority and the inimically agonistic nature of debates about food safety are
likely to combine to render this an illusory hope. Instead, the new legal regime will
probably reterritorialise conflicts so that these endemic and irresolvable disputes
become reconfigured along European versus particularistic fault lines, with local
groups either arguing for the right to consume a food that is considered dangerous
under EU law or to be protected from exposure to a product that is considered
safe under EU law.
The fourth part of this essay argues that this conflict is not necessarily
undesirable. A possible value of the Union is that it renders political, contestable
and ‘public’ matters that had previously been considered to be technical and
discrete. Determinative, however, are the institutional fora for the resolution and
containment of these disputes, and the terms of reference these use. A distinctive
feature of this new regime is that, whilst a variety of arenas are provided for this
purpose, the central ones are national courts, whose role is now recast as active
agents in collective dispute resolution. As processes of collective dispute-
resolution, it will be argued, courts combine a number of qualities. These include
the provision of coherency; the stabilisation of expectations about food safety;
incorporation of ethics into dispute-settlement; and the ensuring of value
pluralism. Unfortunately, the principles provided by EC law to guide adjudication
in this area are contradictory and their application highly contingent, with
analogous cases being treated in very different ways. The consequence is a regime
with little ideological consistency or regulatory coherence.
The final part of this essay argues that the roots of this lie in the traditional
doctrines of EC law being tailored to the contours of a liberal constitutional State
rather than to a system of multi-tiered system of regulation such as that of the
Union’s. Its current constitutional principles are centred around protection of
individual freedoms rather than evaluation of shifting social relations and thus
result in the making of arbitrary and unnecessary distinctions. In that regard, the
establishment of the Authority raises issues, which, whilst particularly salient in
food law, arise across the system. It will be argued that what is needed is a
recasting of the constitutional principles in a way that these are suited to a multi-
level regulatory State. Within such a system any dispute, it will be argued, is a
meeting point between four sets of values – the values of the universal, the values
of the local, the values of the distribution of goods, and the value of distribution of
bads or risks. These coalesce, so disputes about food safety invariably involve a
tension between universal and local understandings of both safety and of the
social value of a particular food. Being tensions between universal and particular,
these can never be fully resolved by either EC or national legislation. Being
differences in understanding, how the dispute is framed will vary across arenas.
The role of constitutional constraints is to ensure overall coordination and that
European Aviation Safety Agency, OJ 2002, L 240/1, EC Commission, Proposal for a
Regulation Establishing the European Network and Information Security Agency, COM (2003)
63.
Reconciling European Risks and Traditional Ways of LifeJuly 2003]
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