The glyphosate saga and the fading democratic legitimacy of European Union risk regulation
| Author | Giulia Claudia Leonelli |
| Published date | 01 October 2018 |
| DOI | 10.1177/1023263X18796981 |
| Date | 01 October 2018 |
| Subject Matter | Articles |
Article
The glyphosate saga and the
fading democratic legitimacy of
European Union risk regulation
Giulia Claudia Leonelli*
Abstract
This article endeavours to explore the glyphosate saga through the prism of a socially acceptable risk
approach to the governance of public health and environmental risks in the European Union. After
a brief overview on the nature and rationale of socially acceptable risk approaches, the article
analyses the controversial case of glyphosate’s renewal of approval, casting light on the position of
the agencies and institutions involved throughout the risk assessment and risk management phases.
Against this overall backdrop, the article deconstructs the European Commission’s artificial legal
narrative on ‘sound’ science and glyphosate and contends that the Commission had scientific and
legal grounds, as well as compelling political reasons, to accept the requests put forward by the ‘Ban
Glyphosate’ European Citizens’ Initiative and the European Parliament. The Commission relied on
a narrow evidence-based approach, disregarding the widespread public perception that the
uncertain risks posed by glyphosate are socially unacceptable, and ignoring the argument that the
existing risk management measures are insufficient to achieve the intended EU level of public health
and environmental protection. In so doing, the Commission has ultimately lost a crucial opportunity
to re-legitimise and re-democratise EU risk regulation.
Keywords
Democratic legitimacy, risk regulation, glyphosate, pesticides, precautionary principle
1. Introduction
What lies at the core of the glyphosate case, and what triggered the heated debate on the European
Union renewal of approval of this active substance? What course of action did the European
Commission (hereafter, ‘Commission’ or ‘EC’) follow, and how did it ultimately decide to manage
* Giulia Claudia Leonelli, Lecturer in Law, Birkbeck College (University of London), UK.
Corresponding author:
Giulia Claudia Leonelli, School of Law, Birkbeck College (University of London), 16 Gower Street, London WC1E 6HE UK.
Email: g.leonelli@bbk.ac.uk
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(5) 582–606
ªThe Author(s) 2018
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X18796981
maastrichtjournal.sagepub.com
MJ
MJ
the uncertain risks posed by the use of glyphosate? And what role has been played by the
‘Ban Glyphosate’ European Citizens’ Initiative?
This article endeavours to explore the unfolding of the glyphosate saga through the prism of a
socially acceptable risk approach to EU risk regulation. Section 1 outlines the main features as well
as the inner rationale of socially acceptable risk approaches, setting the stage for the following
enquiry into the glyphosate controversy. Sections 2 and 3 focus on the risk assessment phase,
analysing the position of the agencies involved against the background of the ‘sound’ science
versus scientific uncertainty dichotomy. Sections 4, 5 and 6, on the other hand, provide an over-
view of the Commission’s narrow approach to risk management, emphasising how the latter has
ultimately failed in its political task to reconstruct an EU-wide understanding of ‘intended level’ of
health and environmental protection. Against this overall backdrop, Section 7 draws some con-
clusions on the shifting EU balance of functional and democratic legitimacy – highlighting how the
Commission’s inability to flesh out a truly precautionary approach to the governance of glyphosate
risks has undermined the very democratic legitimacy of EU risk regulation.
2. The boundaries and remit of EU risk regulation: The ‘socially
acceptable risk’ approach
Despite the hegemonic transnational legal narrative on evidence-based risk regulation
1
and the
increasing – albeit discontinuous – scientification of the Court’s judicial review,
2
asocially
acceptable risk approach to the governance of uncertain risks is somehow encoded in the DNA
of EU risk regulation. This paradigm lies at the very heart of the ‘constitutional’ nature of EU risk
governance,
3
as originally envisaged.
If it is certainly true that both an evidence-based and a precautionary – or socially acceptable
risk
4
– soul coexist under EU risk regulation,
5
it is equally true that no plausible legal reason exists
for the former to trump the latter. Were the results of technical risk assessment meant to be the
1. G.C. Leonelli, The Transnational Law and Governance of GMOs (under peer review, on file with author); and G.C.
Leonelli, ‘GMO Risks, Food Security, Climate Change and the Entrenchment of Neo-Liberal Legal Narratives’,
Transnational Legal Theory (2018), forthcoming; for a similar perspective, see M. Lee, ‘Beyond Safety? The Broad-
ening Scope of Risk Regulation’, 62 Current Legal Problems (2009), p. 242 et seq. and E. Fisher, ‘Framing Risk
Regulation: A Critical Reflection’, 4 European Journal of Risk Regulation (2013), p. 125 et seq.
2. See for instance M. Lee, EU Regulation of GMOs (Edward Elgar, 2008), p. 84–87; E. Vos, ‘The European Court of
Justice in the Face of Scientific Uncertainty and Complexity’, in M. Dawson, B. De Witte and E. Muir (eds.), Judicial
Activism at the European Court of Justice (Edward Elgar, 2013), p. 152 et seq.; P.D. Klosinska, ‘Risk, Precaution And
Scientific Complexity Before the Court of Justice of the European Union’, in L. Gruszczynski and W. Werner (eds.),
Deference In International Courts and Tribunals (Oxford University Press, 2014), p. 205 et seq. and C. Anderson,
‘Contrasting Models of EU Administration in Judicial Review of Risk Regulation’, 51 Common Market Law Review
(2014), p. 424, 432 et seq.
3. On the ‘constitutional’ nature of EU risk regulation see D. Chalmers, ‘Food for Thought: Reconciling European Risks
and Traditional Ways of Life’, 66 Common Market Law Review (2003), p. 532.
4. The use of this terminology aims at emphasising how socially acceptable risk approaches encompass and do justice to a
range of other legitimate factors at stake, together with the underlying tenets of the precautionary principle.
5. On the coexistence of an evidence-based and precautionary soul within EU risk regulation, see A. Alemanno, ‘Case C-
79/09, Gowan Com´ercio Internacional e Servicos Lda v. Ministero della Salute, Judgment of the Court of Justice
(Second Chamber) of 22 December 2010’, 48 Common Market Law Review (2011), p. 1329–1330 and A. Alemanno,
‘Risk Versus Hazard and The Two Souls of EU Risk Regulation: A Reply to Ragnar Lofstedt’, 2 European Journal of
Risk Regulation (2011), p. 169–170.
Leonelli 583
To continue reading
Request your trial