Applying precaution in Community authorisation of genetically modified products: Challenges and suggestions for reform

In this paper, I endeavour to examine concrete challenges, which arise with regard to implementation of the precautionary principle in the field of European Community regulation of GMOs. Developed by the European Courts into a general legal principle, precaution requires EU regulators to strike a balance between scientific and political legitimacy when taking decisions on risk-entailing products. Following this understanding the current GMO legislation creates precautionary governance structures, which allow for a broad input into the authorisation process not only of scientific, but also of ‘other legitimate factors.’ At the same time, it can be criticised for narrowly defining precaution as a decision rule, which, if applied correctly, will lead the decision-maker to the ‘right’ decision. I argue that this misconception is one of the reasons why in the current authorisation practice the Community institutions fail to apply the principle in a balanced way, falling into the extremes of either purely science-based decision-making or a highly politicised precautionary rhetoric. I suggest that in order not to be paralysing, precaution should be understood as a procedural principle that provides for precautionary governance, thus, enabling regulators to make appropriate risk choices.