Decentralizing GMO Cultivation in the EU – A New Mode of Differentiated Regulatory Governance in the Internal Market?

The reform of EU regulation of GMOs has recently become an important example of the trend to de-centralize EU regulatory governance. This paper analyses the regulatory changes brought about by the 2015 reform of GMO regulation, introduced through the adoption of Directive 2015/412. The reform was a direct response to the protracted problems of GMO authorization and especially to the pressure – coming from Member States and societal groups – to allow for more differentiation with regard to national approaches to GMOs. Explicitly relying on the principles of subsidiarity and flexibility, Directive 2015/412 introduced a hitherto unprecedented provision in a harmonized EU legal framework, which allows Member States to opt out from EU approvals of GMOs by restricting or banning GMO cultivation on national territory on grounds other than public health and environmental safety. The significance of this reform for both GMO regulation and the EU internal market can hardly be overestimated. It represents not only a substantial policy turn when compared to the EU policy towards national restrictions of GMO cultivation (and of free movement of goods more generally) to date, but it is also the first time that the EU has agreed to give back decision rights previously exercised at the EU level. At least in its normative ambition, the 2015 reform aims at reconciling the tension between the centralizing forces of internal market harmonization and national and regional diversity. The paper addresses the question of how to categorize this novel type of regulatory reform – can it be seen as a new form of differentiated integration or of experimentalist governance? Looking at the implementation experience at the national level, it will also consider the implications of the reform for the integrity of the internal market.