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From Procrastination to Procedural Perfectionism – A Short Story of the Long Amflora Authorisation Process
Published online by Cambridge University Press: 20 January 2017
Abstract
In this judgment, the General Court annulled two Commission decisions authorising the placing on the market of the GM potato Amflora. The Court did not base its decision on the arguments put forward by the applicant Hungary, which contested the underlying scientific assessment of the European Food Safety Authority, but found of its own motion a breach of an essential procedural requirement in the applicable comitology procedure.Whilst the Court’s proactive role in scrutinising the Commission's behaviour in the authorisation procedure of GMOs is to be welcomed, the Court arguably missed an opportunity to exercise its role as a deliberative forum for normative controversies underlying the scientific risk assessment.
Directive 2001/18 on the deliberate release into the environment of genetically modified organisms, OJ 2001 L 106;Regulation 1829/2003 on geneticallymodified food and feed,OJ 2003 L 268; Article 5 of Commission Decision 1999/468 laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ 1999 L 184.
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References
1 Commission Decision 2010/135/EU concerning the placing on the market, in accordance with Directive 2001/18/EC of the European Parliament and of the Council, of a potato product (Solanum tuberosum L. line EH92-527-1) genetically modified for enhanced content of the amylopectin component of starch, OJ 2010 L 53; Commission Decision 2010/136/EU authorising the placing on the market of feed produced from the genetically modified potato EH92- 527-1 (BPS-25271-9) and the adventitious or technically unavoidable presence of the potato in food and other feed products under Regulation (EC) No 1829/2003 of the European Parliament and of the Council, OJ 2010 L 53.
2 OJ 1990 L 117.
3 Art. 18(1) Deliberate Release Directive.
4 Art. 30(2) Deliberate Release Directive.
5 Art. 28(1) Deliberate Release Directive.
6 Art. 5 GM Food and Feed Regulation.
7 The Regulatory Committee on the Release of GMOs in case of the Deliberative Release Directive, and the Standing Committee on the Food Chain and Animal Health in case of the GM Food and Feed Regulation.
8 Case T-293/08, BASF Plant Science and Others v. Commission [2008] not yet reported.
9 Case T-240/10 Hungary v. Commission [2013] not yet reported, at paras. 67 and 68.
10 Ibid., at para. 70.
11 Ibid., at para. 74.
12 Ibid., at para. 83.
13 Ibid., at para. 85.
14 Ibid., at para. 86.
15 Ibid., at para. 87.
16 Ibid., at para. 91.
17 Ibid., at para. 93.
18 Ibid., at para. 97.
19 Ibid., at para. 98.
20 Case T-293/08, BASF Plant Science and Others v. Commission [2008] ECR not yet reported.
21 Case T-240/10 Hungary v. Commission [2013] not yet reported, at paras. 100–104.
22 Ibid., at para. 111.
23 Ibid., at para. 112.
24 Dehousse used the term “rubber-stamped” in the context of scientific opinions of the European Medicines Agency, see Dehousse, Renaud, “Delegation of powers in the European Union: The need for a multi-principals model”, 31 West European Politics (2008), pp. 789 et sqq., at p. 799.CrossRefGoogle Scholar
25 See for a recent portrayal of this pattern, Weimer, Maria (2014), “Risk regulation, GMOs, and the challenges to deliberation in EU governance – politicisation and scientification as co-producing trends”, in Joerges, C. & Glinski, C. (eds), The European Crisis and the Transformation of Transnational Governance (Hart Publishing, forthcoming)..Google Scholar
26 A recent study shows that the Commission has continued to adopt decisions for which no majority for or against could be found in the comitology committee under the examination procedure, see Klika, Christoph, Kim, Jinhee and Versluis, Esther, “Why science cannot tame politics: The new EU comitology rules and centralised authorisation procedure of GMOs”, 3 European Journal of Risk Regulation (2013), pp. 327 et sqq.CrossRefGoogle Scholar
27 Weimer, “Risk regulation, GMOs, and the challenges to deliberation in EU governance”, supra note 25.
28 Case T-164/2010, Pioneer v. Commission [2013] ECR not yet reported.
29 Ibid., at para. 71.
30 Case T-240/10 Hungary v. Commission [2013] not yet reported, at para. 110.
31 Ibid., at para. 86.
32 The new examination procedure no longer foresees, in case of ‘no opinion’ by the comitology committee, a referral of the draft measure to the Council but instead to an appeal committee, see Art. 5 of Regulation (EU) laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers, OJ 2011 L 55/13.
33 Alemanno, Alberto, “Regulating the European Risk Society”, in Alemanno, Alberto, den Butter, Frank, Nijsen, André and Torriti, Jacopo (eds.), Better Business Regulation in a Risk Society (New York: Springer, 2013), pp. 37 et sqq., at p. 41.CrossRefGoogle Scholar
34 Jasanoff, Sheila, The Fifth Branch: Science Advisors as Policy Makers (Cambridge: Harvard University Press, 1994), at p. 230.Google Scholar
35 See, e.g., van Asselt, Marjolein et al, “Regulating Innovation, Trade and Uncertain Risks”, in van Asselt, Marjolein, Everson, Michelle and Vos, Ellen (eds.), Trade, Health and the Environment: The European Union Put to the Test (London and New York: Routledge, 2014), pp. 248 et sqq., at p. 266.Google Scholar
36 For a recent overview see Dąbrowska-Kłosińska, Patrycja, “EU Courts, Global Risks, and the Health and Environmental Safety Revisited: On Nuances of a Less Deferential Standard of Review”, 63 EUI Working Papers, RSCAS (2013).Google Scholar
37 E.g. Case C-57/72, Westzucker [1973] ECR 321. See also Craig, Paul, EU Administrative Law (Oxford: Oxford University Press, 2012), at p. 408.CrossRefGoogle Scholar
38 Craig, Paul, EU Administrative Law (Oxford: Oxford University Press, 2012), at p. 416 CrossRefGoogle Scholar. Most obvious was this shift in approach in Technische Universität München and Pfizer, see Case T-13/99, Pfizer Animal Health v. Council [2002] ECR II-3305; Case C-269/90, Technische Universität München [1991] ECR I-5469.
39 See for a critique of the Pfizer case in which the Court arguably overstepped its mandate by delving into the substance of the case, Vos, Ellen, “EU Risk Regulation Reviewed by the European Courts”, in van Asselt, Marjolein, Everson, Michelle and Vos, Ellen (eds.), Trade, Health and the Environment: The European Union Put to the Test (London and New York: Routledge, 2014), pp. 213 et sqq., at p. 222.Google Scholar
40 Scott, Joanne and Sturm, Susan, “Courts as Catalysts: Re-Thinking the Judicial Role in New Governance”, 13 Columbia Journal of European Law (2007), pp. 565 et sqq., at p. 574.Google Scholar
41 Cf. Joint Cases T-74/00, 76, 83, 85, 132, 137, 141, Artegodan v. Commission [2002] ECR II-4945, at para. 200.
42 See, most recently, Corporate Europe Observatory, “Unhappy Meal: The European Food Safety Authority's Independence Problem”, October 2013, available on the Internet at http://corporateeurope.org/sites/default/files/attachments/unhappy_meal_report_23_10_2013.pdf (last accessed on 29 March 2014).
43 See, for a recent analysis, UK House of Lords, “Workload of the Court of Justice of the European Union: Follow-Up Report”, 29 April 2013, at p. 23, available on the Internet at http://www.publications.parliament.uk/pa/ld201213/ldselect/ldeucom/163/163.pdf (last accessed on 29 March 2014).
44 See also Vos, “EU Risk Regulation Reviewed by the European Courts”, supra note 39, at p. 227.