GMO regulation in Europe: undue delegation, abdication or design flaw?

On 22 April 2015 the European Commission published a review of the current GMO legislation (the GM Review) and tabled a proposal for its amendment (the GM Proposal). The GM Proposal aims to allow to the member states to ban on their territory the use of GMOs authorised under the EU legislation. This is very similar to the possibility for opting out from cultivation of authorised GMOs which was finally adopted earlier this year. While this may look like a new trend, all the more interesting in the context of possible Brexit, Grexit and Danish opt-out from the provisions on Justice and Home Affairs, the present article will focus only on the GM Review, which essentially admits that the existing GMO regime is a failure.4 Indeed, a dozen years after the relevant legislation has been adopted, only one decision for authorisation of a new GM crop was adopted – the Amflora potato – and it was annulled by the General Court.5 Decisions for marketing have fared slightly better – there are a fewd ozen authorized GMOs – but still the decisions take many years, raise persistent controversies and are adopted without the support by the relevant committee of national experts. It is remarkable that while the Commission has been constantly in favour of the authorisation of new GMO varieties, its assessments persistently fail to convince the Member States so the expert committees (and the Council) have never reached any decision in any direction. As the stalemate leaves the Commission in position to proceed with the authorisations, and it routinely does so, sometimes in defiance of a clear majority of member states against it. This is a responsibility which its current President rightly believes it should not bear.6 However, instead of finding a way to restore the credibility of the regulatory process, now the Commission is proposing to keep it ‘intact’, and only allow to the Member States to opt out of it. In the following I shall first take the Commission’s understanding of its role in the existing regime on its face value and show that this is inherently contradictory and in violation of the EU law as interpreted by the Union courts. In the second section, I shall question the soundness of this interpretation of the case law and argue that it is wrong, and that in this way the Commission is abdicating fromits responsibility to make informed choices itself. The concluding section briefly discusses a possible way out of the trap

Citizenship deprivation

Most critical analyses assess citizenship-deprivation policies against international human rights and domestic rule of law standards, such as prevention of statelessness, non-arbitrariness with regard to justifications and judicial remedies, or non-discrimination between different categories of citizens. This report considers instead from a political theory perspective how deprivation policies reflect specific conceptions of political community. We distinguish four normative conceptions of the grounds of membership in a political community that apply to decisions on acquisition and loss of citizenship status: i) a ‘State discretion’ view, according to which governments should be as free as possible in pursuing State interests when determining citizenship status; ii) an ‘individual choice’ view, according to which individuals should be as free as possible in choosing their citizenship status; iii) an ‘ascriptive community’ view, according to which both State and individual choices should be minimised through automatic determination of membership based on objective criteria such as the circumstances of birth; and iv) a ‘genuine link’ view, according to which the ties of individuals to particular States determine their claims to inclusion and against deprivation while providing at the same time objections against including individuals without genuine links. We argue that most citizenship laws combine these four normative views in different ways, but that from a democratic perspective the ‘genuine link’ view is normatively preferable to the others. The report subsequently examines five general grounds for citizenship withdrawal – threats to public security, non-compliance with citizenship duties, flawed acquisition, derivative loss and loss of genuine links – and considers how the four normative views apply to withdrawal provision motivated by these concerns. The final section of the report examines whether EU citizenship provides additional reasons for protection against Member States’ powers of citizenship deprivation. We suggest that, in addition to fundamental rights protection through EU law and protection of free movement rights, three further arguments could be invoked: toleration of dual citizenship in a political union, prevention of unequal conditions for loss among EU citizens, and the salience of genuine links to the EU itself rather than merely to one of its Member States

Anassessment of current regulation of GMOs in the EU and proposals for amending it

Vesco Paskalev argues that the regulation of GMOs in the EU is a shambles. The main problem lies in a very narrow conception of risk and safety. All the emphasis is wrongly on laboratory tests, and evidence on the wider environmental effects is scant. Wider studies on the effects on consumption patterns or the cost pressures on non GM farmers are ignored. In addition, experts supplant the proper role of the political institutions, and the precautionary principle is rendered inoperative. Paskalev proposes specific legal amendments to remedy these faults

NETWORK FOR A EUROPEAN DEMOI-CRACY: ARE THE NATIONAL PARLIAMENTS UP TO THE JOB?

This article focuses on the new opportunity for the national parliaments to get involved in the EU legislative process which is provided by the so-called yellow card mechanism introduced by the Lisbon Treaty. I start with a discussion of the incentives for national parliaments to seize the new opportunity to influence European decision-making. I argue that the importance of the mechanism goes far beyond its stated goal to enforce the subsidiarity principle. Its true significance will first be in the engagement of parliaments in debates on the substantive issues of European policy, and second in stimulating cooperation amongst the parliaments of different Member States. In turn, this engagement and cooperation of parliaments can be expected to bring about communication among the citizens across national public spheres and their engagement with substantive policy issues rather than merely arguing for or against integration as is the case today. Thus, this modest-looking mechanism promises to nurture a transnational network of public spheres and to become what may be called a demoi-cracy. I also argue that the creation of such a network democracy (post-national rather than supra-national) is the only available road for democratisation of the EU because it does not depend on a forged common identity or solidarity. In the final section, I discuss experience with the mechanism during its first year, which seems disappointing

Bulgarian constitutionalism : challenges, reform, resistance and ... frustration

The paper offers an analysis of Bulgarian constitutional development since 2001 and the impossibility of progressive reforms. It links the decline of quality of democracy with the decline of quality of public discourse

Citizenship Deprivation: A Normative Analysis. Liberty and Security in Europe No. 82, 19 March 2015

Most critical analyses assess citizenship-deprivation policies against international human rights and domestic rule of law standards, such as prevention of statelessness, non-arbitrariness with regard to justifications and judicial remedies, or non-discrimination between different categories of citizens. This report considers instead from a political theory perspective how deprivation policies reflect specific conceptions of political community. We distinguish four normative conceptions of the grounds of membership in a political community that apply to decisions on acquisition and loss of citizenship status: i) a ‘State discretion’ view, according to which governments should be as free as possible in pursuing State interests when determining citizenship status; ii) an ‘individual choice’ view, according to which individuals should be as free as possible in choosing their citizenship status; iii) an ‘ascriptive community’ view, according to which both State and individual choices should be minimised through automatic determination of membership based on objective criteria such as the circumstances of birth; and iv) a ‘genuine link’ view, according to which the ties of individuals to particular States determine their claims to inclusion and against deprivation while providing at the same time objections against including individuals without genuine links. We argue that most citizenship laws combine these four normative views in different ways, but that from a democratic perspective the ‘genuine link’ view is normatively preferable to the others. The report subsequently examines five general grounds for citizenship withdrawal – threats to public security, non-compliance with citizenship duties, flawed acquisition, derivative loss and loss of genuine links – and considers how the four normative views apply to withdrawal provision motivated by these concerns. The final section of the report examines whether EU citizenship provides additional reasons for protection against Member States’ powers of citizenship deprivation. We suggest that, in addition to fundamental rights protection through EU law and protection of free movement rights, three further arguments could be invoked: toleration of dual citizenship in a political union, prevention of unequal conditions for loss among EU citizens, and the salience of genuine links to the EU itself rather than merely to one of its Member States

Taking Reasoning Seriously: The role of courts in enforcing argumentative rationality

The regulation of new technologies, as well as many other areas of our increasingly complex and interdependent societies, involves high uncertainty which grants broad epistemic discretion to the usually unelected regulators. This raises increasing concerns in the public law theory which traditionally requires all authoritative acts to be justified on the basis of certain principles mandated by the legislator (or in other words to be non-arbitrary). Political authorities respond to this challenge by the so-called science-based regulation however this approach in practice makes them defer to the advice of obscure and even less legitimate scientific bodies. Worse still, the courts are considered incompetent to review the scientific basis of such decisions and they fail in their duties in their own turn. In this paper I propose a way out of the latter problem, which was exemplified at least once in the well-known Pfizer case of the General Court of the EU. On my reading of the case, the Court reviewed the validity (but not the soundness) of the reasoning of the EU institutions in order to determine whether they had strayed away from the received expert advice arbitrarily. This rigorous review gives the authorities the flexibility necessary in cases of uncertainty yet it held them to a very strict standard of reasoning not to allow them to act arbitrary. Beyond the particular issue, the case shows that the traditional duty to give reasons, if taken seriously, can constrain epistemic discretion and on the other hand can allow the courts to review complex scientific issues without second guessing the political authorities