Danger! Glyphosate may Expose Weaknesses in Institutional Systems: EU Legislation and Comitology in the Face of a Controversial Reauthorisation

Abstract

The 2017 glyphosate reauthorisation process has exposed key weaknesses of the EU’s institutional system. First, the role of Germany as Member State rapporteur and the subsequent decision to appoint a group of Member States to form the Assessment Group on Glyphosate (AGG) suggest that the nature of scientific assessments become blurred. These assessments are apparently not just purely objective, science-based and procedural elements of the authorization procedure, but require support from a significant number of Member States as well. Second, the arduous comitology trajectory in the glyphosate reauthorisation process has caused the Commission to initiate questionable changes to comitology. These changes would corrupt the coherence of the EU’s legislative system in general and the constitutional distinction between delegated and implementing acts in particular. Moreover, they would overlook the more obvious solution of relying more on discretion on the part of the Commission. Lastly, the glyphosate reauthorisation has questioned the dichotomy between legislation and executive rule-making, an equally central element of the EU’s constitutional order. This dichotomy is based on a distinction between essential elements that belong to the legislative domain and non-essential element which are more technical in nature. It has been claimed that weighing the economic benefits of pesticides against the health and environmental costs associated with their use is in essence a legislative choice. This claim highlights not so much the practical problem of how to draw the line between political and technical decision-making, but rather denies the very meaning of the dichotomy altogether. Yet, the current system on the placing on the market of plant protection products – based on the legislation providing the general framework and the executive applying this in concrete cases – is certainly not devoid of coherence and logic.