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Published online by Cambridge University Press: 27 October 2017
This chapter explores the ambiguous allocation of authority in the governance of two areas of environmental protection: industrial pollution and genetically modified organisms. Ambiguity, that is, a difficulty in asserting that any single actor has the final word on a subject, is inevitable in the EU’s multi-level governance system and is not necessarily undesirable. These two examples demonstrate that even in the face of concerted efforts to introduce a formal hierarchy, the need for collaboration around softer norms persists.
1 Directive 2001/18 of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC  OJ L106/1 (the Deliberate Release Directive); Regulation (EC) 1829/2003 on genetically modified food and feed  OJ L268/1 (the Food and Feed Regulation).
2 I will refer to the original IPPC Directive: Council Directive 1996/61/EC of 24 September 1996 concerning integrated pollution prevention and control OJ  L257/26 and Directive 2010/75/EU of 24 November 2010 on industrial emissions (integrated pollution prevention and control) OJ  L334/17.
4 Including the most fundamental debates about EU federalism, constitutionalism and pluralism.
5 Whilst concerned with these common themes, I will not attempt to compare or draw lines between the different approaches to and types (‘new’, ‘experimental’, ‘networked’) of ‘governance’; for discussion, see Armstrong, K, ‘The Character of EU Law and Governance: From “Community Method” to New Modes of Governance’ (2011) 64 Current Legal Problems 179 CrossRefGoogle Scholar. For discussion on the appearance and proliferation of the term ‘governance’, see also O’Mahony, J and Ottaway, J, ‘Travelling Concepts: EU Governance in the Social Sciences Literature’ in Kohler-Koch, B and Larat, F (eds), European Multi-Level Governance (Cheltenham, Edward Elgar, 2009)Google Scholar.
7 Some prefer the language of multi-centred or polycentric governance to avoid any implication of hierarchy in the language of ‘levels’. See Hooghe, L and Marks, G, ‘Unraveling the Central State, But How? Types of Multi-Level Governance’ (2003) 97 American Political Science Review 233 Google Scholar; Hofmann, H and Türk, A, ‘The Development of Integrated Administration in the EU and its Consequences’ (2007) 13 European Law Journal 253 CrossRefGoogle Scholar.
8 See Enderlein, H, Walti, S and Zurn, M (eds), Handbook on Multi-Level Governance (Cheltenham, Edward Elgar, 2010)CrossRefGoogle Scholar. The introduction to this handbook asserts that the inter-connectedness of different layers distinguishes multi-level governance from federalism; I think that the federalism scholarship is diverse enough to embrace such interconnections.
10 For a discussion of the ‘excess of metaphorical terminology’ (‘multi-speed’, ‘variable geometry’ ‘a la carte’), as well as the long history of differentiation, see Stubb, AC-G, ‘A Categorisation of Differentiated Integration’ (1996) 34 Journal of Common Market Studies 283, 291CrossRefGoogle Scholar.
12 The opposition of the UK government to the proposed de-harmonisation (discussed below) of GMO cultivation highlights the complexity of the relationship between sovereignty and authority in a multi-level system.
13 Discussed in detail in Lee, M, EU Environmental Law, Governance and Decision Making (Oxford, Hart Publishing, 2014, forthcoming)Google Scholar; Lee, M, ‘EU Multi-level Governance of GMOs: Ambiguity and Hierarchy’ in Cardwell, M and Bodiguel, L (eds), Regulation of GMOs (Oxford, Oxford University Press, 2010)Google ScholarPubMed.
14 Above n 2.
15 Above n 1.
17 J Scott and J Holder, ‘Law and New Environmental Governance in the EU’ in de Búrca and Scott (n 6) 236 reject the notion that there is ‘zero sum game’ between the Member State and the EU.
19 Above n 5. Karkainnen, B, ‘“New Governance” in Legal Thought and in the World: Some Splitting as Antidote to Overzealous Lumping’ (2004–05) 89 Minnesota Law Review 471 Google Scholar refers to ‘contestation over naming rights’. There is an emerging literature on ‘collaborative governance’, more or less independent of the lines of literature referred to in n 5; see, eg, Ansell, C and Gash, A, ‘Collaborative Governance in Theory and Practice’ (2007) 18 Journal of Public Administration Research and Theory 543 CrossRefGoogle Scholar. Jody Freeman sees collaborative governance as an escape from an adversarial model of interest representation in a specifically US context: ‘Collaborative Governance in the Administrative State’ (1997–98) 45 University of California at Los Angeles Law Review 1. There are obvious distinctions between that context and the current chapter.
20 Going back a step, the GMO legislation cited above (n 1) was a ‘centralising’ response to the dramatic collapse of the ‘mutual recognition’ approach in the earlier legislation.
22 Above n 1. See Joined Cases C-58/10 to 68/10 Monsanto v Ministre de l’Agriculture et de la peche  ECR I-7763. Those rare applications that are made under the Deliberate Release Directive alone are also subject to collaborative arrangements. For detail, see Lee (n 3).
23 For detailed discussion of the opportunities, see P Dabrowska, ‘EU Governance of GMOs: Political Struggles and Experimentalist Solutions?’ in Sabel and Zeitlin (n 6). See also Lee (n 13) 2010.
24 Four members of the GMO panel are British. See, eg, www.efsa.europa.eu/en/gmo/gmomembers.htm. Members of the scientific panels are appointed for a three-year renewable period and so maintain their close connections with their employers; most members of the GMO panel are based in universities or research institutes, or in national regulatory authorities.
25 Regulation (EC) 178/2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety  OJ L 1/1 (General Food Law), art 27.
26 E Vos, ‘Responding to Catastrophe: Towards a New Architecture for Food Safety Regulation?’ in Sabel and Zeitlin (n 6) 155; General Food Law (n 25) recital 44. See also Chalmers, D, ‘“Food for Thought”: Reconciling European Risks and Traditional Ways of Life’ (2003) 66 MLR 532 CrossRefGoogle Scholar.
27 General Food Law (n 25), arts 36 and 23(g).
29 EFSA, Decision concerning the establishment and operation of European Networks of scientific organisations operating in the fields within the Authority’s mission (2010). Available at: www.efsa.europa.eu/en/gmo/gmonetworks.htm.
30 EFSA, Scientific Network for Risk Assessment of GMOs (2009). Available at: www.efsa.europa.eu/en/gmo/gmonetworks.htm.
31 General Food Law (n 25) art 30.
32 CF Sabel and J Zeitlin, ‘Learning from Difference: The New Architecture of Experimentalist Governance in the EU’ in Sabel and Zeitlin (n 6) 13. Vos (n 26) notes that this provision has never been used.
33 It should not be thought that Sabel and Zeitlin are naively pro-consensus: deliberation is as much about the ‘elaboration of difference’ as it is about consensus: Sabel, CF and Zeitlin, J, ‘Learning from Difference: The New Architecture of Experimentalist Governance in the EU’ (2008) 14 European Law Journal 271, 274CrossRefGoogle Scholar.
34 Food and Feed Regulation (n 1) art 6(3). EPEC Report to DG Sanco, ‘Evaluation of the EU Legislative Framework in the Field of Cultivation of GMOs under Directive 2001/18/EC and Regulation (EC) No 1829/2003 and the placing on the market of GMOs on or in products Under Directive 2001/18’; the Final Report (2010) found ‘broad acceptance that it would be helpful to widen [Member State] participation in the risk assessment process’ (20). But note that EFSA has not always found willing national risk assessors: European Commission, ‘Report on the Implementation of Regulation 1829/2003 on Genetically Modified Food and Feed’ COM(2006) 626 final, 10.
35 Food and Feed Regulation (n 1) art 6(6).
36 Ibid art 7(1).
37 Not just in respect of GMOs: see Vos (n 26).
39 Sabel and Zeitlin (n 33) 279.
40 Joerges, C and Neyer, J, ‘From Intergovernmental Bargaining to Deliberative Process: The Constitutionalisation of Comitology’ (1997) 3 European Law Journal 273 CrossRefGoogle Scholar. This conclusion does not mean that comitology is incapable of instituting such deliberation in other areas: see, eg, Craig, P, ‘Integration, Democracy and Legitimacy’ in Craig, P and de Búrca, G (eds), The Evolution of EU Law, 2nd edn (Oxford, Oxford University Press, 2011)Google Scholar.
41 Discussed in Lee (n 3).
42 Regulation (EU) 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers  OJ L55/13, especially art 5.
43 The Lisbon Treaty approach applied from 2012. Authorisation decisions can be found on the GMO register: http://ec.europa.eu/food/dyna/gm_register/index_en.cfm. See, eg, Commission Implementing Decision 2012/82/EU of 10 February 2012 as regards the renewal of the authorisation for continued marketing of products containing, consisting of, or produced from genetically modified soybean 40-3-2 (MON-Ø4Ø32-6) pursuant to Regulation (EC) 1829/2003 OJ  L40/14, recital 19.
44 Regulation (EU) 182/2011 (n 42) art 6.
45 Scott, J, ‘Flexibility, “Proceduralization”, and Environmental Governance in the EU’ in Scott, J and de Búrca, G (eds), Constitutional Change in the European Union (Oxford, Hart Publishing, 2000)Google Scholar.
46 Council Directive 96/61 (n 2) art 2(11); ‘best’, ‘available’ and ‘techniques’ are also defined in art 2(11).
47 Scott (n 45).
50 The BREFs are generally adopted by consensus, although there is provision for ‘split views’ to be recorded: see, eg, Reference Document on Best Available Techniques in Common Waste Water and Waste Gas Treatment/Management Systems in the Chemical Sector (February 2003).
52 Above n 16.
53 EPEC (n 34) 51. See also Commission Decision 2010/135 of 2 March 2010 concerning the placing on the market, in accordance with Directive 2001/18/EC of a potato product (Solanum tuberosum L. line EH92-527-1) genetically modified for enhanced content of the amylopectin component of starch  OJ L53/11.
54 The Commission requested more scientific information from the EFSA: Commission Decision 2009/828/EC of 3 November 2009 relating to the draft regional legislative decree declaring the autonomous region of Madeira to be an area free of Genetically Modified Organisms, notified by the Republic of Portugal pursuant to Article 95(5) of the EC Treaty  OJ L294/16. The period within which the Commission could object expired on 4 May 2010.
55 Six countries are listed as applying safeguard clauses on the Commission’s website (http://ec.europa.eu/food/plant/gmo/safeguards/index_en.htm). The restrictions introduced by Poland and Italy are referred to below, but have not taken the form of safeguard measures and so do not appear on this list. Many Member States have implemented coexistence measures, some of which are highly restrictive. Some of these restrictions are legally questionable.
56 There is an interesting empirical question as to the circumstances in which those represented in Seville apply BREFs even in the absence of permit obligations.
58 European Commission, ‘Proposal for a Directive on industrial emissions (integrated pollution prevention and control) (Recast)’ COM(2007) 843 final, 9; European Commission, ‘Report on the implementation of Directive 2008/1/EC concerning integrated pollution prevention and control and Directive 1999/13/EC on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations’ COM(2010) 593 final, 4.
59 Whilst there are no cases on failure to apply BREFs, the Commission has brought a number of actions against a failure to impose authorisation requirements under the Directive by the deadline: see, eg, Case C-48/10 Commission v Spain ECR I-151.
60 Weiler, J, ‘Federalism and Constitutionalism: Europe’s Sonderweg’ in Nicolaidis, K and Howse, R (eds), The Federal Vision: Legitimacy and Levels of Governance in the US and the EU (Oxford, Oxford University Press, 2001)Google Scholar. From a different perspective, see Kumm, M, ‘Beyond Golf Clubs and the Judicialisation of Politics: Why Europe Has a Constitution Properly so Called’ (2006) 54 American Journal of Comparative Law 505, 517CrossRefGoogle Scholar: ‘Focussing on the Schmittian question—who has the final say?—misses the point. It obscures the remarkable fact that in Europe the everyday enforcement of European law is guaranteed by national constitutional provisions and their interpretation by national courts.’
61 DM Trubek, P Cottrell and M Nance, ‘“Soft Law”, “Hard Law” and European Integration: Toward a Theory of Hybridity’ University of Wisconsin Legal Studies Research Paper No 1002/2012.
62 See also G de Búrca, ‘Setting Constitutional Limits to EU Competence’ Francisco Lucas Pires Working Papers Series on European Constitutionalism, Working Paper 2001/02, on the limits of Treaty allocation of authority.
63 Article 14(3). A regulator can set permit conditions on the basis of BAT not found in the BAT conclusions without breaching the Directive, provided that environmental protection is at least as high as under the BAT conclusions (arts 14(5) and 15).
64 The hardened legal status of the BREFs has led to an increased legislative focus on the way in which they are drawn up, and hence greater formality of the Seville process. The final decision on BAT Conclusions is subject to comitology.
65 The European Environmental Bureau, ‘New Features under the Industrial Emissions Directive’ (2011) 10 criticises the BREFs on the basis that it is ‘difficult to derive ELVs for permit writers’; Lange (n 49) ch 6 distinguishes between ‘open’ and ‘closed’ standards.
66 Commission Implementing Decision 2012/135/EU of 28 February 2012 establishing the best available techniques (BAT) conclusions under Directive 2010/75/EU of the European Parliament and of the Council on industrial emissions for iron and steel production  OJ L70/63.
67 Ibid 70.
68 BREF on Economics and Cross-Media Effects (2006) [2.5.4]; see also [2.6.4] on general ‘screening for local effects’.
69 Article 15(4).
70 Articles 15(4) and 24(2)(f). There is also periodic reporting to the Commission: see especially art 72(1).
71 European Commission, ‘Freedom for Member States to decide on the cultivation of genetically modified crops’ COM(2010) 380 final.
72 European Commission, ‘Proposal for a Regulation amending Directive 2001/18/EC as regards the possibility for the Member States to restrict or prohibit the cultivation of GMOs in their territory’ COM(2010) 375 final.
73 No agreement was reached at the 3152nd Council Meeting Environment, 9 March 2012.
74 It is a little more complicated than that, in particular with respect to coexistence between organic, conventional and GM crops. For discussion, see Lee (n 13).
75 The ‘standstill period’ in Directive 98/34/EC of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services  OJ L204/37 does not apply.
76 All GMO authorisations in 2012, none of which were for cultivation, were made by the Commission, following a failure to reach a qualified majority either way in committee or appeal committee.
77 It may be arguable that because art 26b refers to the ‘assessment’ of environment and health, anything not covered in the EFSA risk assessment could be revisited.
78 EPEC (n 34) 52 notes continued ‘frustrations with the current risk assessment practice’ and concern that ‘regional specific circumstances and conditions regarding environment, health and long term effects are not sufficiently acknowledged by EFSA’.
79 Above n 22. For discussion, see Lee (n 13).
80 See Lee (n 3).
81 European Commission, ‘Considerations on Legal Issues on GMO Cultivation raised in the Opinion of the Legal Service of the Council of the European Union of 5 November 2010 (Staff Working Document)’ SEC (2010) 1454 final . The EPEC (n 34) 52 found that ‘there is a general understanding amongst most Member States and consultees that the use of national safeguard measures, while presented as having a scientific justification, is sometimes an expression of non-scientific objections to GMO cultivation and of political circumstances’.
83 Case C-142/05 Åklagaren v Mickelsson and Roos  ECR I-4273  and  on Swedish restrictions on the use of jet skis.
84 Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein (Cassis de Dijon)  ECR 649. The European Commission (n 81) provides examples of the sorts of issues that might be at stake: ‘public order … preserving cultural and social tradition or … ensuring feasibility of controls or balanced rural conditions’. There is no obvious legal effect to these lists, since they are non-exhaustive, and in any event any measure still has to comply with the treaties.
85 See, eg, Case C-244/06 Dynamic Medien Vertriebs GmbH v Avides Media AG  ECR I-505, where the Court moved swiftly between the litigants arguments about public morality and public policy to international legal instruments on the rights of the child. See also Craig, P and de Búrca, G, EU Law: Text, Cases and Materials (Oxford, Oxford University Press, 2011) 680 CrossRefGoogle Scholar.
86 Case 145/88 Torfaen BC v B&Q plc  ECR 385  (pre-dating the line of case law arising out of Joined Cases C-267/91 and C-268/91 Keck and Mithouard  ECR I-6097 on whether ‘selling arrangements’ are captured by art 34 TFEU).
87 Joined Cases C-447/08 and C-448/08 Sjoberg  ECR I-6921 ; Van den Bogaert, S and Cuyvers, A, ‘Money for Nothing: The Case Law of the EU Court of Justice on the Regulation of Gambling’ (2011) 48 CML Rev 1175 Google Scholar.
88 Case C-208/09 Sayn-Wittgenstein  ECR I-13693 .
89 Case C-452/01 Margarethe Ospelt v Schlössle Weissenberg Familienstiftung  ECR I-9743 . Note also the public goods associated with organic farming by the European Commission, ‘European Action Plan for Organic Food and Farming’ COM(2004) 415 final, section 1.4.
90 Ibid, AG’s Opinion .
91 Case C-120/95 Decker  ECR I-1831 ; Case C-203/96 Chemische Afvalstoffen Dusseldorp BV v Minister Van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer  ECR I-4075 .
92 Case C-165/08 Commission v Poland  ECR I-6943 . Von Bogadandy, A and Schill, S, ‘Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty’ (2011) 48 CML Rev 1417 Google Scholar suggest that the religious and ethical concerns associated with GMOs could form part of the Polish ‘national identity’, protected under art 4(2)TEU; see also Sayn-Wittgenstein (n 88).
93 The situation could be different in WTO law.
94 Jacobs, F, ‘The Role of the European Court of Justice in the Protection of the Environment’ (2006) 18 Journal of Environmental Law 185 CrossRefGoogle Scholar. See also Case C-54/05 Commission v Finland  ECR I-2473 regarding road safety, cited by Barnard, C, ‘Restricting Restrictions: Lessons for the EU from the US?’ (2009) 68 Cambridge Law Journal 575 at note 156CrossRefGoogle Scholar; Case C-531/07 LIBRO  ECR I-3717, cited in R Craufurd Smith, ‘Culture and European Union Law: Always the Bridesmaid, Never the Bride?’ in Craig and de Búrca (n 40).
95 Above n 92.
96 European Commission (n 72) [2.2.2].
97 See also Craufurd Smith (n 94).
98 The Council Legal Service (5 November 2010, Interinstitutional File 2010/0208 (COD)) goes too far in arguing that it would be difficult to establish that a ban on cultivation is motivated by ethical concerns if the Member State nevertheless allows the sale of meat from animals raised on GM feed. There may be good reasons for a different approach, not least the limitations of art 26b.
99 The stringency of the approach can vary: see, eg, Jacobs (n 94). In preliminary references, the ultimate finding on proportionality is generally left to the national courts.
100 Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line  ECR I-10779; Case C-341/05 Laval v Svenska Byggnadsarbetareförbundet  ECR I-11767.
101 Case C-36/11 Pioneer Hi Bred Italia Srl v Ministerio dell Politiche agricole, alimentary e forestali’  ECR I-000 . Note that new Commission guidelines on coexistence do envis-age restrictions on cultivation that cover ‘large areas’: European Commission, ‘Recommendation on guidelines for the Development of National Co-existence measures to Avoid the Unintended Presence of GMOs in Conventional and Organic Crops’  OJ C200/1.
102 European Commission (n 72) recital 8; European Commission, ‘Complementary Considerations on Legal Issues on GMO Cultivation Raised in the Opinions of the Legal Service of the Council of the European Union of 5 November 2010 and of the Legal Service of the European Parliament of 17 November 2010—WTO Compatibility (Staff Working Paper)’ SEC (2011) 551 final.
103 Pollack and Shaffer (n 18).
104 There is an enormous literature since the Panel decision on GMOs. See, eg, Pollack and Shaffer (n 18); Peel, J, ‘A GMO by Any Other Name … Might Be an SPS Risk!: Implications of Expanding the Scope of the WTO Sanitary and Phytosanitary Measures Agreement’ (2007) 17 European Journal of International Law 1009 CrossRefGoogle Scholar.
106 Lee (n 13).
108 Pollack and Shaffer (n 18), in the context of international, especially transatlantic, efforts at collaboration.
109 See also above n 60.
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