The demand to transfer powers from the EU back to the national level is politically en-vogue in several EU member states at the moment. EU policy on agricultural biotechnology, however, is an interesting exception, writes Maria Weimer.
Maria Weimer is assistant professor in EU law at the Law Faculty of the University of Amsterdam and a senior research fellow at the Amsterdam Centre for European Law and Governance. This commentary was first published here on BlogActiv.
The Council of Ministers has recently become deadlocked over a Commission legislative proposal to re-nationalise parts of EU legislation on the cultivation of genetically modified organisms (GMOs). According to the 2012 Danish EU presidency progress report, “a political agreement on the GMO dossier is not possible.”
The proposed legislation would grant Member States the right to restrict or prohibit GMO cultivation in their territory. Earlier this year, the Commission ratcheted up the pressure by announcing a freeze of all pending EU authorisations of GMO cultivation until Council members reached an agreement. It is, indeed, high time to complete this reform process, and to agree to disagree on GMO cultivation in Europe.
Where common EU solutions are not possible due to both high politicisation and strong socio-economic and cultural diversity among the Member States, a differentiated approach allowing national opt-outs on GMO cultivation is the only viable path towards both more effective and democratic risk regulation.
It would not only strengthen the democratic accountability of national governments vis-à-vis their citizens, but also offer the chance to engage in a less polarized democratic deliberation about the costs and benefits of green biotechnology. The member states in the Council (especially the blocking members France, Germany, Belgium, and the UK) should therefore finally stop the political blame shifting, overcome their differences, and complete the legislative reform process on national opt-outs.
Since the establishment of the first EU harmonising measures for the cultivation of GMOs back in the 1990s this area has developed from a low-profile technical into a political issue of high salience on the EU agenda. Politicisation of this issue has meant that national representatives in both the Council and the comitology committees are subject to intense public pressures and extraordinary public scrutiny vis-à-vis their national constituencies, which ultimately prevents deliberative and consensus-based decision-making at EU level.
Moreover, preferences (and as their basis beliefs, risk perceptions and socio-economic interests) with regard to GMO cultivation in the EU differ widely among the member states. Both factors make common EU authorisation decisions difficult, if not impossible. This is evidenced by the yearlong deadlock in both comitology and the Council, which also continues under the new comitology system. As a result, today EU regulation of GMOs is a paradigmatic example not only of the failure of deliberation within Council and comitology, but also of EU risk regulation more generally.
Enacting the Commission reform proposal would legalise the status-quo: several member states have banned GMO cultivation on their territory in response to strong anti-GM movements at home. While the Commission considers these bans to be unlawful it was so far powerless to lift them against a qualified majority of national representatives in the Council.
The only issue member states were able to agree upon over the last decade was that the Commission should not be entitled to enforce EU authorisations of GMOs against the will of the member states, and their citizens. This is a profound contestation of the Commission’s authority to decide on GMO cultivation for the Union as a whole.
The Commission reform proposal is an acknowledgment of this; and the outcome of a long and painful process of failed reform and institutional learning in the EU. Enacting it would not only allow accommodating diversity across the EU while maintaining a common authorisation procedure. It would also allow a more democratic multi-level governance of GMOs in the EU, because it would de-jure assign responsibility where it de-facto already resides: the national governments and their societies.
Paradoxically, member states that have called for this reform, and/or maintain national bans (notably France and Germany), are currently blocking the Commission proposal in the Council. A key to understanding the problems of GMO regulation in Europe is to comprehend why these member states prefer the status-quo of institutional deadlock and legal uncertainty over a reform that seems to give them what they wanted: more autonomy.
Admittedly, each member state has their set of reasons. Yet one common interest suggests itself: political convenience. The blocking governments seem not willing to take on the political responsibility for GMO decisions vis-à-vis their voters. To put it more provocatively, they seem to prefer what can be called a Janus-faced strategy of shifting the blame for GMO authorisations to Brussels (i.e. the Commission) and Parma (the European Food Safety Agency), thereby escaping public debate at home. Adopting the Commission proposal would deprive them of this choice thus strengthening democratic accountability at both national and EU level.
Without taking a stance on the desirability of GMO cultivation in Europe, I argue that the only way to move beyond polarisation and deadlock, and thus also democratic failure in this policy field, is to strengthen an informed democratic deliberation about both the risks and the benefits of green biotechnology within each of the national societies. This is only possible, if national governments and parliaments are formally perceived as the decision-makers.
Allowing for national opt-outs, and thus agreeing to disagree on GMO cultivation in Europe, would therefore enable a more honest and objective public debate. More than 20 years after the EU first started to regulate GMOs it is late, but perhaps not too late.