The Creation of the European Food Authority: Institutional implications of risk regulation

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The Creation of the European Food Authority: Institutional implications of risk regulation

Introduction

The signature of a new treaty allowing the European Union to envisage the accession of new members as of 2004 was not the only outcome of the European Council meeting in Nice in December 2000. In their conclusions, the Heads of State and Government also took note of the Commission’s proposal on establishing new general principles and legislation on food and setting up a European Food Authority (EFA). The European Council meeting further invited “the Council and Parliament to speed up work so that the future European Food Authority may become operational as from the beginning of 2002”.

This reaffirmation of political will is hardly surprising, given the context and the various reasons which made the Community institutions and Member States realise the need to establish an EFA.

It would certainly have taken longer for such an organisation to be envisaged if the bovine spongiform encephalopathy (BSE) crisis had not given such a severe jolt to the Community system and called into question the way in which European scientific expertise was made available. Similarly, the operation of the internal market and the free movement of goods have been affected by successive food crises which, while being very different in nature, have nevertheless caused considerable concern among both the general public and governments. Consumers have realised that the food industry, in an area without national borders, could easily and quickly be weakened. Governments, meanwhile, have pondered the need to adopt national measures to protect individual and public health, in the knowledge that such measures could be seen as obstacles to the free movement of goods.

Establishing a new Community institution to deal with food matters thus has great significance and implications. Beyond the purely institutional considerations relating to the establishment of an EFA within the Community – its organisation, composition, probable working procedures and location – two sets of issues of a more theoretical nature can help us understand what is at stake.

Any new institution generally reflects a variety of views and interests, which tend to become more difficult to reconcile as the number of parties involved increases. To understand the issues underpinning the establishment of the EFA, we must take a close look at the Community’s decision-making process (and, in this particular case, the codecision procedure) within the “institutional triangle”.

Each component of the triangle would delegate certain functions to the proposed EFA, a fact which would inevitably revive the issue of the balance of powers between the three institutions. Perhaps less obviously than on other occasions when this balance was discussed, the creation of a new organisation would resurrect questions of delegation, transfer of sovereignty, legitimacy and effectiveness in decision-making, in a multilevel decision-making system.

While the question of agencies is not specific to the Community context, creating them within the European Union draws particular attention to the problem, as they are not based on any pre-existing model and, in each case, give the impression of resulting from particular events and circumstances. The EFA is yet another illustration of the Community system’s flexibility and ability to respond to society’s needs. But is the response offered by the proposal for a regulation up to the challenges involved?

The second point for discussion stems from the premise that the EFA also raises the question of the use of scientific advice by the political authority. If we accept that, in the near future, a large proportion of political decisions will require prior recourse to scientific advice, establishing scientific go vernance in our “risk societies” is becoming a very real necessity for the smooth running of our democratic societies. So how can this scientific expertise resource be integrated in the institutional arrangements? How are decisions to be taken, in a situation where science is no longer an ally, providing decision-makers with certainties, but a variable like any other – imprecise, uncertain or contradictory?

If one of the instruments at the decision-makers’ disposal (risk analysis, in this case) has become less accurate, how should the decision-making process be organised to avoid this uncertainty resulting in deadlock? It is not surprising that the precautionary principle has been such a popular response to this quandary.

Establishing the EFA is all the more important in the process of institution-building at EU level since the BSE crisis is still having an impact on the process of European integration, and that it is impossible to say with certainty that a similar crisis could not occur again.

Considered in perspective, the Commission’s proposals could be seen as timid in the light of the developments that are taking shape. The BSE crisis speeded up Community action in the field of food safety and helped trigger a comprehensive reorganisation of scientific expertise in the Community, which is to culminate in the establishment of the EFA. This forced “Europeanisation” of food safety will be the subject of the first part of this paper.

To gain a better understanding of the key issues, however, we need to assess the various constraints involved in shaping the proposed institution. Two of these constraints are discussed in the second part of this study.

First of all, the somewhat rigid approach to risk analysis, broken down into three independent stages (assessment, management and communication) could turn out to be less useful in practice than conceptually. Attempting to reflect this division of tasks in institutional provisions and procedures might result in an oversimplified decision-making process, and could cause uncertainty as to the responsibility of each link in the chain. For what is at issue is the relationship between expert scientific advice and policy-making, particularly in conditions of scientific uncertainty.

Secondly, the concept of delegation inherent in establishing an authority seems not to be applied in the best possible way. There are generally two arguments put forward to justify the creation of an autonomous authority. The first relates to the ability of the new organisation to produce and provide political decision-makers with scientific advice which, as far as possible, are independent, objective, transparent and credible. The second is that the authority’s status as an institution and the procedures that govern its operation should help restore consumer confidence. However, this confidence will last only if a number of conditions are fulfilled.

Lastly, the third part of this study analyses the main answers provided by the Commission in its White Paper on Food Safety and the subsequent proposal for a regulation, which could be seen as reacting to the past rather than anticipating the future developments in our societies. With regard to its status and role, the EFA will have to demonstrate that its creation and the unanimity that initially prevailed when it was first mooted have not been unduly influenced by constraints and considerations unrelated to food safety and to the aim of achieving the best possible coordination between scientific expertise and European policy-makers.

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