Analiza CIM no. 19/2012
Within the area of biotechnology-policy-regulation, the European Union (EU) has acquired a form of beyond-technocracy regime. Having become highly politicized in 1990s., the issue has been causing difficulties in constructing Union’s coherence. Aside general successful presence in global environmental governance, this essay assesses EU’s leadership in international regulation of Genetically Modified Organisms’ (GMO) as fragile. The author’s aim is to analyse this fragility through Carmen Gebhard’s coherence typology interlinked with other authors’ proposals.
Firstly, the vertical coherence concerns EU Member States’ (MS) whose interests clash in the intergovernmental Council of the EU (before: ‘Council of Ministers’). This institution has been highly divided into those of anti-GMO convictions, as Austria, Luxembourg, Greece and Denmark; those in favour, like Sweden, the Netherlands, Ireland and the UK; and the rest ‘somewhere in between’, particularly noting extreme changes of France’s attitude. Reluctant countries managed to block GM-wider-liberalization, thus defining an anti-GM-position of the Council and affecting the whole EU’s status.
This leads to the second type of coherence – horizontal one, which considers transnational level of the European Parliament (EP) and the European Commission (EC), with the former presenting a close position to the Council and the latter opposing it, aiming at affirming trade liberalization, competitiveness and single market principles.
No other issue is as political and ‘multi-level-challenging’ as GMO. It is exposed to pressures from below and above. National values (labels of ‘traditional’ vs. ‘Frankenstein’ food), regulations subsequently based on them, anxiety among public opinion, agricultural unions, anti-globalization/consumers’/religious NGOs (Greenpeace, Friends of the Earth) have been all clashing with national or transnational businesses (Europabio, Monsato), bigger farmers and scientists, influencing both the horizontal and vertical coherence.
‘Constant quarrelling’ between the EC and the Council is a result of ‘battleground for leadership’s competition’ over issue-framing in 1990s. When in 1996 first American GM-crops were arriving in Europe, a sheep Dolly was cloned and BSE disease broke out provoking ethical challenges upon wider crisis in food safety. Taking advantage of the public and EP’s protests against the EC’s GM-authorization process, [t]he Council has used its leverage in comitology (…) and push<ed> the outcome towards its political preferences, invoking in 1999 national safeguard clauses, approved earlier in Directive 90/220/EEC, and thus paralyzing the EC’s endeavours.
Gebhard names such ‘turf battles’ a ‘malign face of coherence’. A precautionary principle (PP) guiding the EU’s GMO legislation is a result of these wars. Having its hands tied, the EC accepted a ‘de facto moratorium on GMO’, which lasted until 2003. The EC has undertaken a role of entrepreneur in order to ‘expertise democracy’, accepting a role of ‘service for common purpose’ while involving a variety of non-state actors. The price for this ‘benign face’ was challenged five years later by WTO.
Issued in the light of a WTO-dispute, two 2003 EC Regulations marked GMO-regulations’ softening, while keeping the highest standards of production, labeling and traceability in force. Currently, some 40 GMOs are registered in the EU, with a large share of American company Monsato. But despite European Food Safety Authority’s announcement: there is no reason to believe that GMO can have any undesired effect on humankind and environment, number of local governments has continued claiming ‘GM-free zones’, invoking the safeguard clauses reiterated in Directive 2001/18/EC. In 2007 the European Court of Justice (CoJ) upheld the Court of First Instance’s decision favouring the EC against Upper Austria province’s GMO-ban. Three years later German Federal Constitutional Court also confirmed the Union’s biotech legislation. Recently, in September 2011 the CoJ decided that the French ban on MON810 maize has no legal basis. All these steps uncover possibility for the EU to move towards integrative and comprehensive biotech regulation.
Thirdly, the coherence must be explained as a multi-sectoral challenge. It is defined by various internal competitive layers of contradictive interests cumulated e.g. in EC’s Directorates Generals. DGs dealing with internal market, industrial policy, research and technology, trade and agriculture push for GMO-release, while DGs environment, food safety, health and consumer protection reach for protectionism. The EP is also an arena of various interests, with pro-GMO AGRI Committee and anti-GMO ENVI.
Policy-domains’ coherence determines also the legitimacy of EU governance to handle the policy-conflict and to regulate a risk. The EU’s identity and strategy (…) are based on a strong aversion towards risk; [the Union is driven by] a will to reduce its uncontrollable effects. A context of GMO’s ethical and scientific uncertainties leads to a principle of protecting global public goods (sustainable development), evoking the PP and a need of ‘environmental democracy/diplomacy’, and ‘intergenerational morality/justice’ – the constituting elements of post-modern societal security.
High politization of the issue demands an approach going beyond procedural basis of EU bureaucracy. The GMO’s placement within shared competences and co-decision determines a large turf for political battles. Conflicting objectives could be overcome by tactical usage of political side-payments, but in the biotech-issue there is no place for gradual package-dealing.
Institutional novelties of the Lisbon Treaty introducing new authorities (President, High Representative, EEAS) responsible for ensuring EU’s external actions, are to additionally enhance Union’s external coherence in interactions with third actors. Here the coherence is interlinked with the Union’s actorness comprised of three inherent parts: recognition, authority and autonomy. The first two determine the international presence of the EU (to ‘lead by example’). Through its endeavours of norm’s diffusion and their externalization/internationalization, beginning with the anti-GM domestic shift of late 1990s., the EU has begun seeking acknowledgment of its internal regulation, based on the PP. It is then worth underlying that the Union’s presence has not been affected by its internal incoherence, what is proved by EU’s defense in WTO, named the Commission’s Acrobatic Act.
The de facto recognition has been granted by cooperation with UN-bodies: Environmental Programme and Commission on Sustainable Development, as well as by two multilateral agreements: 1998 UNECE Aarhus Convention (44 signatories) and 2000 Cartagena Protocol to 1992 Convention on Biodiversity. The latter, collecting over 140 signatories (without main GM-cultivators), goes beyond scientific approach, appealing to socio-economic values and to case-by-case authorization, as proposed by Brussels. Union’s ‘window of opportunity’ could be opened by future World Environmental Organisation. The 2004 Memorandum of Understanding between Environmental Commissioner Margot Walström and UNEP Executive Director Klaus Töpfer, might be a step forward. Developing and promoting measures at international level while preserving PP and ‘preventive action’, including a safeguard clause for non-economic environmental reasons are EU’s objectives.
Nevertheless, the de jure acknowledgment of EU-agent by WTO-principle is far from realization. Although the EU managed to construct ‘institutional distinctiveness’ (Cartagena Protocol), its ‘international autonomy’ is only partial, depending on other actors. So, even though the EU model has attracted the majority of countries, it was contested by WTO as not adequate in 2006, in the dispute undertaken three years earlier by the US, Canada and Australia. It was stated that EU’s measures affect the approval and marketing of biotech products. Although Art. XX GATT, and the Agreements on SPS and TBT  enable exceptions to free trade based on environmental grounds, the Dispute Settlement Body did not take them into consideration. Nor it did with Art.31.3(c) of Vienna convention, a move that could facilitate an appeal to Cartagena Protocol.
Prévost believes that WTO ‘opened the Pandora’s box’ and therefore its authority in environmental cases is been questioned . Union ‘speaking with one voice’ and continuing defending its regulatory autonomy by strengthening the GMO global governance proves that it has succeeded in creating a new regime deserving a title of ‘frontrunner’.
Nonetheless, Lieberman and Gray explain the fragility of this leadership, stating that a change among followers might be a result of non-GM crop failure and improved performance of GM crops, especially in the light of global challenges: world population’s growth requiring a 70% rise in global food production by 2050, and climate change. So far, GM-fears prevail, but some experts suggest that developing countries economically lose currently much more than if they started growing GM-crops. Assertiveness of biotech-lobby is also increasing: [w]hile the US, Brazil, India and China have forged ahead in genetic engineering, we have lost a generation of good scientists.
Lastly, it is worth to see motivations as the basis for coherence. [P]romoting multilateral environmental agreements (…) to ‘green’ international trade refers to the EU as a normative globalization manager, promoting a win-win scenario. However, as it was shown, Union’s run for leadership in GMO-case is:
the result of a domestic shift in societal risk perceptions and interests configurations in Europe, rather than the straightforward outgrowth of its normative identity.
The difference in treatment of the GMO and medical biotechnology is an example.
A coherent-in-itself actor becomes a leader when it is able to construct rules acknowledged worldwide. A consensus between the EU and the US is unlikely, as their positions are based on socio-economically decoupled principles. Shared leadership is a more likely scenario for the future than a green European hegemony. It might be presumed that in foreseeable future the Union will open its market on GMOs more widely, simultaneously enforcing global higher safety standards. The coherence’s win-win priority has a chance to be fulfilled.