You want it extra CRISPERY? : Legal Disruption Through New Plant Breeding Technologies in the EU

Titelangaben

Purnhagen, Kai:
You want it extra CRISPERY? : Legal Disruption Through New Plant Breeding Technologies in the EU.
In: Yearbook of European Law. Bd. 40 (2021) . - S. 374-397.
ISSN 2045-0044
DOI: https://doi.org/10.1093/yel/yeab003

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Abstract

With the advent of new gene editing tools, conventionally termed “new plant breeding technologies” (NPBT), the world faces a major revolution in the way our food is produced and introduced to the market. The scientists involved in discovering one of the most promising technologies in this respect, CRISPR/Cas9, were awarded the Nobel Prize 2020 in chemistry. Like blockchain, artificial intelligence and robotics, NPBT’s are part of the fourth industrial revolution. In the EU, unlike blockchain, artificial intelligence and robotics, for which appropriate regulation is being debated and drafted, NPBT are according to many commentators subject to the existing GMO (Genetically Modified Organisms) regulatory regime. This is a result of an unprecedented judgment of the Court of Justice of the European Union (CJEU) that did not find NPBT to be as disruptive but rather as sharing essential features with the already existing technologies that are used to produce GMOs.
I will illustrate how the ‘old’ EU GMO legal regime is applied to regulate new NPBT. I will discuss why and how this results in what elsewhere had been called ‘legal disruption’. Legal disruption will occur once legal rules which were initially confined to a specific identified issue start to be applied beyond their original target. Such legal disruption may be found in the example of NPBT interacting with the precautionary principle, the enforcement of labelling and traceability requirements, the rules on GMO-enabling research, and liability. In the case of NPBT, legal disruption already took place because policymakers were unwilling to adopt legislation designed to meet the demands of the technology. Consequently, they shuffled the responsibility for regulatory decision to the CJEU. The CJEU, in its current design, represents an ill-suited institution to decide on such complex technology questions. I will explain why. I will end with a plea for a regulation of NPBT, which likewise enables and protects, following the eight principles developed by Michéle Finck on the example of the governance of blockchain technology.