GMOs in the Internal Market: New Legislation on National Flexibility

Date01 March 2016
AuthorMaria Lee
Published date01 March 2016
GMOs in the Internal Market: New Legislation
on National Flexibility
Maria Lee
In an area where until now national autonomyhas been tenaciously resisted, new EU legislation
provides Member States with ‘flexibility to decide whether or not they wish to cultivate GMOs
on their territory’. This forces attention on to the subtle, and not so subtle, ways in which
internal market law constrains political actors in the EU. But it is similarly suggestive of how
political actors might contribute to the evolution of the internal market. As well as exploring
this relationship between the new legislation and internal market law, this article reflects on the
ways in which lessons from the past have been addressed by legislators. Whilst it takes somewhat
seriously the politics of GMOs, the new legislation simultaneously reinforces some of the
limitations of our dominant models for generating knowledge, including the EU’s problematic
dichotomy between facts and values, risk assessment and risk management.
The unfinished story of genetically modified organisms (GMOs) in the EU
has been told many times, with many variations. And yet there seems to be no
end to the ways in which GMOs, and our responses to and understanding of
them, expose features of legal and political phenomena that might otherwise
go largely unremarked. The latest legislative chapter in the EU story is a
2015 Directive that claims ‘to grant Member States, in accordance with the
principle of subsidiarity, more flexibility to decide whether or not they wish
to cultivate GMOs on their territory’.1This short (eight page, four article)
piece of legislation deserves very careful attention. It is an important attempt
at ‘de-harmonisation’,2the unpicking of harmonised leg islation, and in an
increasingly diverse and apparently increasingly sceptical union, ‘flexibility’ in
University College London. I am grateful to Chiara Armeni and Joanne Scott for comments on an
earlier draft of this paper.
1 Directive 2015/412 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 [2015] OJ L 68/1, Recital 8.
2 I refer to ‘de-har monisation’ in a fairly loose way, but whilst Article 26b allows for different
outcomes in the Member States, a common process and approach applies. The language of ‘opt
out’ is widely used, see M. Weimer, ‘Risk Regulation and Deliberation in EU Administrative
Governance: GMO Regulation and Its Reform’ (2015) 21 ELJ 622. De Sadeleer considers the
new Directiveto provide less than full harmonisation, see N. de Sadeleer, ‘The Uncertain Balance
between Centrifugal and Centripetal Forces in the Marketing and Cultivation of GMOs in the
EU’ 6 EJRR 532. There has also been some debate as to whether non-health or -environmental
issues were ever harmonised, see the discussion in M. Lee, EU Environmental Law, Governance
and Decision-Making (Oxford: Hart Publishing, 2014) ch 10.
C2016 The Author.The Moder n Law Review C2016 The Modern Law Review Limited. (2016) 79(2) MLR 317–340
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
GMOs in the Internal Market
all of its many guises may become more important.3That this turns out to
be less straightforward than it sounds is not surprising, and perhaps the line
between ‘harmonisation and not’ is more fuzzy than it seems.4
One of the reasons that GMOs have been compelling for EU lawyers is that
they are tradeable products or ‘goods’, entitled to freemovement under EU law.
Internal market law is used in the new legislation as an explicit, if complicated
and unpredictable, boundary on political action at the national level. And yet
EU level political action through that legislation may simultaneously influence
our understanding of internal market law. We know that, broadly speaking,
internal market law is socially constructed, effortfully maintained, and dynamic;
if also highly developed and resistant to purposive change. Markets and their
rules are not pre-formed and inevitable, but shaped by each other and by
competing ideas of what they are and should be.5Andsoaswellasbeing
shaped by the internal market, the political judgment reflected in the new
legislation has the potential to shape the internal market in its turn.
As well as reflecting on the internal market, this article reflects on which
lessons have been learned over at least twenty years of difficulties with GMOs.
The legislation recognises, and attempts to respond to, certain insights about
the fragility of particular approaches to knowledge generation and to politically
legitimate decision-making in the EU,6resonating also with broader ques-
tions about the space for democratic politics in 21st century governance. But
the learning reflected in the new legislation is partial. The legislation, if any-
thing, reinforces the EU’s problematic dichotomy between facts and values, risk
assessment and risk management. Whilst it takes somewhat seriously the politics
of GMOs, it simultaneously reinforces some of the limitations of our domi-
nant models for generating knowledge, perhaps in a more subtle reflection of
internal market values.
This article begins in the next section by briefly outlining the difficul-
ties encountered in the regulation of GMOs so far. The precise character of
disagreement on GMOs is complicated, but includes questions about the exis-
tence and acceptability of the risks posed to human health and the environment;
3 On the long history of differentiation, see A. C.-G. Stubb, ‘A Categorisation of Differentiated
Integration’ (1996) 34 JCMS 283, 291. From different perspectives, eg, N. Walker,‘Sovereignty
and Differentiated Integration in the European Union’ (1998) 4 ELJ 355; J. Shaw, ‘The Treaty
of Amsterdam: Challenges of Flexibility and Legitimacy’ (1998) 4 ELJ 63; R. Zb´
ıral, ‘Restoring
tasks from the European Union to Member States: A Bumpy Road to an Unclear Destination’
(2015) 52 CML Rev 51.
4 M. Lee, ‘The Ambiguity of Multi-Level Governance and (De)-harmonisation in EU Environ-
mental Law’ (2014) CYELS 357; Lee, n 2 above.
5 There are lots different waysof thinking about this. See, eg, A. Lang, ‘Reconstructing Embedded
Liberalism: John Gerard Ruggie and Constructivist Approaches to the Study of the International
Trade Regime’ (2006) 9 Journal of International Economic Law 81; M. Callon, ‘Civilising Markets:
Carbon Trading Between in vitro and in vivo Experiments’ (2009) 34 Accounting, Organizations
and Society 535; S. Bogojevic, Emissions Trading Schemes: Markets, States and Law (Oxford: Hart
Publishing, 2013) especially ch 3; S. Jasanoff (ed), States of Knowledge: The Co-Production of Science
and Social Order (London: Routledge, 2004), in the context of ‘facts’ and ‘politics’, ‘science’ and
‘social order’.
6 The EU is of cour se not monolithic, and nor are its institutions or the Member States. The
regulatory process can however lead to entrenched positions, D.Chalmers, ‘“Food for Thought”:
Reconciling European Risks and Traditional Ways of Life’ (2003) 66 MLR 532.
318 C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(2) MLR 317–340

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