Issue 02/2013

The Science, Law and Policy of Neonicotinoids and Bees: A New Test Case for the Precautionary Principle
Prof. Dr. Alberto Alemanno
Once more, while facing an analogous risk phenomenon affecting their predominantly homogeneous societal and economic interests, the two sides of the Atlantic seem to adopt diverging stances. Amid the publication of several new studies and a set of EFSA scientific opinions linking the use of the world’s most widely used pesticides to bee decline, the European Union adopted a temporary ban on their use. While the Commission does not expressly rely on it, its restrictive decision is clearly based on the controversial precautionary principle. Yet, as it is discussed in this article, the conformity of this decision with the requirements that determine the legal invocation of this principle remains doubtful.
Regulatory Governance of Credit Rating Agencies in the EU: The Perils of Pursuing the Holy Grail of Rating Accuracy
Iris H-Y Chiu
This paper argues that the EU Regulation of credit rating agencies is concurrently pursuing two objectives that conflict with and would undermine each other. One is the objective of enhancing rating accuracy, and the other is the objective of restoring market discipline in the wholesale investment markets for credit ratings as information goods. The Regulation places more emphasis on regulating for rating accuracy which has the effect of instituting a form of product regulation for credit ratings, raising the public interest profile of credit ratings. This paper argues that this is undesirable and is contrary to policy-makers’ endeavours to enhance market discipline for rating quality and the private accountability of credit rating agencies. EU policy-makers would eventually need to confront the underlying conflicting objectives in the Regulation so that a normatively coherent and consistent regulatory regime can be designed and implemented.
Framing Risk Regulation: A Critical Reflection
Elizabeth Fisher
Over a decade ago I was involved in a group project that focused on developing a regulatory model concerning the implementation of the precautionary principle in the EU. The project involved a number of workshops and in those workshops I used to joke about the fact that while there were many different frameworks being produced to represent risk regulation, these diagrams basically fell into two different categories. In the first category there were those diagrams that characterised risk regulation as a linear process involving usually a scientific process of risk assessment and then political processes of risk management and risk communication. In the second category there were those diagrams that had lots of looping arrows going all over the place that represented the fact that risk regulation was an iterative process that constantly involved many scientific, socio-political and other inputs.
Epistemic Subsidiarity – Coexistence, Cosmopolitanism, Constitutionalism
Sheila Jasanoff
Harmonization is an essential instrument of international risk governance. It is the process through which disparities among national regulatory standards are ironed out, producing uniform outcomes that all participants in a regime can accept and that facilitate the free exchange of regulated goods in commerce. Contrary to conventional belief, however, harmonization requires not only technical but also political cooperation, since standards themselves are not direct mirrors of reality but are co-produced responses to technoscientific and political uncertainty. Attempts to harmonize standards across national borders therefore pit alternative political cultures and their systems of public reasoning against one another. Put differently, harmonization calls into question the underlying models of subsidiarity that provide the foundation for robust international regimes. This paper examines three models of epistemic subsidiarity – coexistence, cosmopolitanism, and constitutionalism – and discusses each scheme’s capacity to protect a nation’s fundamental political commitments while advancing the goals of international risk governance.
Government Promotion of the Electric Car: Risk Management or Industrial Policy?
Bradley W. Lane, Natalie Messer-Betts, Devin Hartman, Sanya Carley, Rachel M. Krause
There are two prominent motivations for why governments seek to promote the electric car: risk management and industrial policy. This article provides operational definitions of these two motivations and uses them to characterize the public policies of six political jurisdictions: California, China, the European Union, France, Germany, and the United States. The article finds that while the European Union is focused primarily on risk management, China, Germany and the United States are primarily engaged in industrial policy. California and France are intermediate cases with a substantial blend of industrial policy and risk management. Future research into the ramifications of industrial policy for liberalized international trade is recommended.
The Member States’ Long and Winding Road to Partial Regulatory Autonomy in Cultivating Genetically Modified Crops in the EU
Sara Poli
Member States wishing to cultivate genetically modified organisms (GMOs) have always been a minority in the EU. Only eight out of twenty-seven have experienced transgenic agriculture. Throughout the years, the opposition to this form of farming has become a genuinely transnational phenomenon given that many regions of different European countries declared themselves GMO-free. Moreover, Member States such as Austria, Luxembourg, Greece, Poland and, most recently, Hungary officially banned transgenic agriculture within their borders altogether. France and Germany suspended the cultivation of GM maize MON 810, respectively in 2008 and 2009. In addition, the EU has previously authorized only two GM crops: GM maize MON 810 (authorization renewed in 2008) and GM potato EH92-527-1 (2010), known as the ‘Amflora potato.’ The cautious approach towards transgenic farming is also witnessed by the long and contested process of renewal of the permit to cultivate GM maize MON 810 and the issue of the authorization for the Amflora potato. All this shows that in the EU there has always been a very limited tolerance for transgenic agriculture.
Against the Failures of Risk Regulation Liability and Safety in Air Traffic Management (ATM)
Dr. Marta Simoncini, Giuseppe Contissa
This article aims to analyse liability issues as a further means to regulate risks, in case the precautionary measures of the delivered safety system fail. Through liability, the risk that cannot be prevented can be transferred onto those parties who are in the best position to spread them. The allocation of liability thus works as an incentive to the correct functioning of the preventive measures. Liability rules appear to be a key legal remedy which can ensure both tort reparation and a fair and efficient distribution of burdens in a legal order. In this vein, air traffic management (ATM) is addressed as a case study, which shows the main issues and the gaps that liability rules face when dealing with the trade off between risk and safety as conveyed by technology. After having clarified the nature of the relations between risk and liability on the one hand, and automation and liability on the other hand, this article analyses liability issues in the framework of ATM by approaching this topic in a comparative way between the National Airspace System (NAS) of the United States of America (USA) and the Single European Sky (SES) of the European Union (EU).
Principles and Structures of European Risk Governance, or: How (not) to Play a Trust Game
Prof. Dr. Anne van Aaken
Ever more risky service activities are carried out across borders, creating spillovers and externalities. At the same time, if freedom to provide services is legally enabled, states can cooperate in multiple ways to mitigate the potential risks accruing from crossborder activities.


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