How to Manage the Union’s Diversity: The Case on the Regulation of New Plant Breeding Technologies Confédération Paysanne and Others
Wageningen Working Papers in Law and Governance 03/2019
24 Pages Posted: 16 May 2019
Date Written: April 16, 2019
Abstract
At the surface, Confédération paysanne and Others concerns the question whether all GM products derived from mutagenesis are under the same regulatory scrutiny as conventional Genetically Modified Organisms (GMOs). In this capacity the judgment has been widely discussed from several angles. I dig a bit deeper and analyse the policy choices regarding the different tools of internal market integration reflected in the different solutions presented by the Advocate General (AG) and the Grand Court. In essence, both the AG and the Judges had to deal with the legal question regarding which policy choices to make when interpreting an open term in an old static law in light of technological change. There is no ready-made answer to this legal-methodological question. Both, the AG and the Judges were at pains to find a solution that copes with the inaccuracies of the Directive, the multi-level feature of EU law, and answers to the questions how to take decisions under uncertainty, how to capture technological advancement and how to govern the law/policy divide. By contrasting the AG’s and the Bench’s approach, I illustrate how both solutions are equally sound, but give different weight and a different framing to the policy considerations underlying both solutions. While the Court has adopted an approach which favours more a solution within the logics of the preliminary reference procedure with an aim to respect national Court’s judgments, the AG emphasizes the role of the national lawmaker to respect socio-economic differences in the Member States. Hence, both adopt a more managerial approach to the question at hand by not deciding on most of the legal questions at hand. Rather, they shift responsibility for decisions to national institutions; the CJEU to national courts and the AG to national parliaments. Both views pay witness to the fact that the internal market is increasingly seen as an institution whose paramount aim is to manage diversity in the EU.
Keywords: Regulation of GMO, EU Law, Freedom of Goods
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