National Responses to Great Uncertainty in EU Authorisation of Pesticides and Industrial Chemicals

Abstract

This article looks into how two sectoral regulatory systems – EU legislation applying to pesticides, and EU legislation applying to industrial chemicals – accommodate national participation in decisions about uncertain risks. It identifies uncertainty as situations in which the probabilities or other important information needed for a well-informed decision are lacking, and therefore refers to these situations as 'great uncertainty'. The article explores the assumption that national participation in decision-making under great uncertainty leads to higher environmental protection compared to centralised decisions. It does so by addressing the role of EU Member States and their national competent authorities in marketing authorisation decisions on pesticides and industrial chemicals, the exercise of national discretion in the authorisation of these substances, and the use of temporary derogation clauses by Member States once a product has been allowed to enter the market. The article compares two regulatory fields, as the two main harmonisation measures in this field – the Plant Protection Products Regulation and REACH – have established different authorisation systems: a decentralised system in the case of pesticides and a centralised system in the case of industrial chemicals. The outcomes of this comparison are that both systems enable national decisions about uncertain risks, but that the identified examples of national participation are not necessarily a response to great uncertainty.