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We discuss options to reform the EU genetically modified organisms (GMO) regulatory framework, make risk assessment and decision-making more consistent with scientific principles, and lay the groundwork for international coherence. The first in a three-part series, this article focuses on reform options related to the scope of the legislation and the GMO definition.

Societies worldwide are investing considerable resources into the safe development and use of nanomaterials. Although each of these protective efforts is crucial for governing the risks of nanomaterials, they are insufficient in isolation. What is missing is a more integrative governance approach that goes beyond legislation. Development of this approach must be

Behavioural forms of regulation, e.g. nudging and debiasing, increasingly take centre stage in regulatory agendas and are making their way into consumer law. In order to warrant for an effective implementation from a legal point of view, findings from behavioural sciences need to confirm with the regulatory context conditions of the underlying legal system and need to be fit for purpose to answer questions the law requires. Behavioural studies hence need to pass a regulatory validity test before they can be operationalised in the law. Subsequently I will explain how such a regulatory validity check can work in consumer law. I will first illustrate the different context conditions of behavioural sciences and law (I.). Subsequently, I will illustrate these differences on the example of a comparison of the recently commissioned behavioural science study on the “vulnerable consumer” and the legal requirements of the “average consumer” benchmark (II.). To overcome the so illustrated shortfalls I will introduce a regulatory validity test which can be applied by behavioural and legal scientist, courts, regulators (III.). I will conclude then conclude the findings (IV.).

This contribution briefly traces the ‘behavioural turn’ in EU Consumer law. We argue that the multilevel-nature of this paradigm shift is currently underappreciating the role of national courts in giving traction to the behavioural sciences paradigm. In a jurisprudential analysis of cases applying the Unfair Commercial Practice Directive in the Netherlands in respect of the average consumer, we find that Dutch courts do not deploy behavioural insights.

According to Articles 2.2, 5.1 and 5.2 of the Agreement on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement”), Members need to base sanitary and phytosanitary measures (“SPS measures”) on scientific principles and risk assessment. These provisions have sparked analysis on issues such as how this “risk” needs to be addressed, which “science” Members need to take into account, and what the relationship is between values and science. It is commonly observed that the SPS Agreement leans towards a technical approach to the determination of risk. If socio-economic concerns were to be taken into account in the SPS Agreement, a leeway for Members to introduce protectionist policies would open up. We illustrate with the example of the ongoing citrus dispute between the European Union (EU) and South Africa that the technical approach can likewise be used to shield protectionist policies with an extraterritorial effect. The reason for this is the uncertainty with regards to how science needs to be interpreted in relation to the probability that a disease will be introduced. We conclude that the choice for technical risk does not remedy the “protectionist policy with extraterritorial effect” problem. Rather than debating the options of “socio-economic” risk and “technical” risk only, the WTO Dispute Settlement Body should use disputes such as the one on citrus to develop a more normative approach to “risk” in the SPS Agreement, indicating which kind of “probability” is normatively required to justify SPS measures.

The potential of the case on EU private law cannot be underestimated. Despite of the fact that with its answer the Court did not really get to the heart of question two, it took a remarkable stance on quite a number of heavily discussed issues in EU private law. I will first provide a short introduction to the underlying “new approach” regulation to make the reader familiar with this very special area of EU law. Subsequently, I will comment on the broader implications of the judgment. I will treat the answer of the Court not only as an answer to the special underlying Directive, but rather as a general guideline to the treatment of the underlying legal problems.

This piece assesses whether nudging techniques can be argued to be a less restrictive but equally effective way to regulate diets in EU law. It has been argued that nudging techniques, due to their freedom-preserving nature, might influence the proportionality test in such a way that authorities need to give preference to nudging techniques over content-related or information regulation. We will illustrate on the example of EU food law how behavioural sciences have first altered the EU food law’s goal from the mere provision of safety to also steering behaviour towards healthier diets. In line with this development, the regulatory toolbox advanced beyond the traditional dichotomy of content-related vs. information-related regulation, eventually adding nudging as a third way to regulate. Drawing on previous works of legal scholars we will then present the hypothesis that nudging techniques, according to their choice preserving nature, may be less restrictive but equally effective when contrasted to information-related over content-related regulation. With reference to recent CJEU case law that such a claim needs to be backed up by scientific evidence, we will evaluate several nudging studies in the area of food that test the effectiveness of this approach. We will illustrate that, while nudging indeed has a choice-preserving nature and therefore might be less restrictive, it may also be classified under certain circumstances equally effective to information-related regulation. From the evidence presented the proportionality principle may in some cases require EU policy makers to primarily use nudges instead of information-related regulation.

Current political discussions on the relationship of technical standards to the Transatlantic, Trade and Investment Partnership (TTIP) concern the question whether TTIP can provide a transatlantic level playing field for technical standards, and whether this will negatively affect technical standards in the European Union (EU) and the United States (US). This piece will instead take a different view on technical standards in TTIP. It will switch the perspective to an individual one, namely to the question who decides on standards. It follows the hypothesis that steering principles on mutual recognition and harmonization of technical standards largely depend on who will be given the power to decide on conformity and level of technical standards in the TTIP. As a basis for such an institutional analysis, this piece will evaluate the leaked documents from the TTIP negotiations. The analysis follows the framework for legal institutional analysis identified in the introduction to this book. The introduction highlights that, as legal applications of regime theory and organisation theory, the acts of autonomy and power by institutions are the real subjects of legal investigation of institutionalisation. This largely reflects an approach to institutionalism voiced by Neil Komesar in the 1990ies. As a result, I will identify and map the respective decision-makers and will illustrate the potential impact of these choices on technical standard-setting.

The use of psychological findings in EU internal market regulation has gained interest, particularly in the area of unfair commercial practices. This study investigates consumer perceptions of bonus packs containing an oversized indication of the “extra” volume in the package, such as in the Mars case. The Mars case serves as a standard reference in EU unfair commercial practices law which is used as a benchmark to determine the “average consumer.” Our study demonstrates how an experiment can be set up to provide empirically based insights on whether a practice is “deceptive.” Results of our experiment show that consumers overestimate the extra volume when confronted with an oversized indication compared to control conditions, which is first empirical evidence that this practice is potentially deceptive.