Up Against a Wall: Europe’s Options for Regulating Biotechnology through Regulatory Anarchy

Abstract: Based on the current state of EU law and the political sentiment surrounding Genetically Modified Organisms, this article argues that the best approach to regulating the import and export of GMOs into the Community and between Member States is by what I will call 'regulatory anarchy'. Applied in the context of GMOs, regulatory anarchy envisions integration not coming solely from Community rules conceived by the Commission, but by Member State negotiated rules accomplished at the level of regulatory civil servants negotiating among each other. Greater centralisation will occur in the regulation of GMOs because the risk of defection in this area by an individual regulatory body imposes very high costs on other national regulators, to the point where they are willing to relinquish some of their own enforcement authority for assurances against collective action problems. As a result of the current gridlock caused by recalcitrant Member States, the GMO regime may be more effectively and efficiently handled by a system that employs regulatory anarchy; whereby 25 interested parties are initially brought to the table to approve a release (rather than one Member State), leaving less opportunities for regulatory capture by one Member State and still leaving room for Community supervision.