Is the comparison between judicial expertise and GMOs risk assessment at the European level useful? Food for thought...

Testing expertise: GMOs and risk assessment: what is at stake at the European level?

Warning. The speach I made and show below is not a scientific contribution to the reflection about expertise because I get round the problem by cheating a bit. I did as we can compare a judicial expertise with an administrative one without challenging the difference between them. It does not mean I think the comparison is not valid but that needs more explanations… Thus it is only food for thought.

I was reading some decisions of the European Court of Justice on cases connected with environment issues in general and GMOs in particular. There were often an assessment, "une expertise", an expert’s report in these cases. I was impressed by - how could I say that - the strong, the deep imbrication between these assessments and their legal framework. I would like to risk a partial comparison between three kinds of assessments, in order to underline my impression, to show a part of the differences between the classical assessments and these assessments at the European level.

A building has collapsed. The architect and the engineer are sued. Are they liable? The judge is not up to answer because he needs some scientific or technical data: why the building has collapsed. The judge will commit the assessment to an expert. The judicial expert will assess the resistance of the materials used by the engineer and proposed or not by the architect. The way the expert works as well as the know-how he uses (his art, his science, his practice), is in the present case not affected or corrupted by the legal environment, by the legal constraints of the case been in the dock. The scientific or technical state of art is his real point of reference. Acting as an expert, he is not obliged to assume what is at stake at the court level (except for the procedure, but it is not the point here). Besides, the same situation can occur in case of administrative decision-making process.

I will try to draw that. Carefully of course, because diagrams, especially in two dimensions, are always simplifications and therefore lie at least by omission.

Impossible to draw here! You have two circles, one on the left, with "Legal environment & Legal constraints" and the other on the right, with "Expertise - State of art". From the first to the second, an arrow with "Demand / question". From the second to the first, an other arrow with "Answer"

Now, let us carry on with another example of judicial expertise, this time not in a civil field but in a criminal one. A murder comes before a court. The defendant committed the crime. But his lawyer argues that he was mentally not in a state to judge his acts and thus not accountable. The judge will then designate an expert who will have to answer the following question: at the moment of the crime, was the defendant responsible for his acts?

Responsibility is however not a scientific, a psychiatric concept, but a legal one. Behind the question, the expert understands well the real question. Could, yes or no, the defendant know that the act he committed was forbidden? Did, yes or no, the defendant have the mental state to choose to act or not? The expert integrates, assimilates the way criminal law understands liability: for instance, that everyone is accountable for her or his action from the age of sixteen or eighteen on.

The expert understands very well that nobody asks him to check if the defendant was into psychological, physical, economical and social conditions for governing his own life. That’s not the point. Without any mention of it, any explanation, the expert assimilates that the significance of the question is narrower, or rather other, than the common or trivial meaning of responsibility. In other words, the expert, a psychiatrist, assimilates the criminal law constraints and the criminal policy the judge will apply. What I have just said is commonplace, well known, well analysed. Besides, some psychiatrists rebel against the role they are confined in. But it is not easy to act both as a rebel and as an expert. But anyway, this is not my point.

One can say the expert translates the question, then mobilizes his knowledge and finally retranslate his "scientific" answer in order to drop it in the criminal field. Actually it is more complex as the psychiatrist’s knowledge is itself affected by the story and the life of the polity as well as by the criminal policy.
If I try to draw that... (but I can not here)

Again, you have two circles, with "Legal environment & Legal constraints" in one side and "Expertise - State of art" in the other hand. But now the circles are partially superimposed; the two circles shares a small space.

Let us now jump to the subject’s core, the issue of GMOs and risk assessment at the European level. In this field we have a legal framework that, on the one hand settles on the expertise and risk assessment, and on the other hand surrounds, encircles it. The risk assessment is presented as the keystone of this legal device. The experts will notably verify if the GMOs are risky for the environment. But what is the legal environment? What are the legal constraints?

A first point is that the regulations on GMOs have been made in accordance with the article 95 of the European Treaty. This article applies to measures relating to the establishment and functioning of the internal market. The focus is upon the free movement of goods. The good functioning of the internal market should not be disturbed by the disharmonious regulations in the Member States. That’s why you have GMOs’ European regulations. Regulations must take away possible legal barriers amongst the Member States.

It is important to stress upon the fact that the GMOs’ regulations were not taken on the basis on article 175 of the European Treaty that deals with the environmental policy. There is a chain of consequences from this starting point.

The principle, the basic rule, is that the release of GMOs and the trading of GMOs have to be allowed and to be further liberalized. The freedom of the producers’ choice as well as the coexistence between conventional, organic and transgenic crops are the principled rule. Those questions are closed; they are not debatable.

The prohibition of a GMO, for instance because it is risky for the environment, is called a discrimination or a restriction on trade, an obstacle to the functioning of the market. Such discrimination or obstacle, constitutes, let me say, the major crime and will be strictly controlled by the European institutions. Several conditions must be respected to allow such a restriction. First at all the risk assessment itself, based on information given by the GMO producer, the so-called notifier, has to be feasible. That means, among other things, that it shouldn’t be too expensive. Among the other conditions, the risk must be grave, strongly scientifically granted, without any other way to avoid the risk, and so on. In fact these conditions express the sacrosanct principles of necessity and proportionality, regarding the free movement of goods. And, last but not least, the whole is under the control of the European Court of Justice, the guardian of the good application of the Treaty’s principles.

A second point is that the legal status of GMOs is set up far upstream from the moment of the risk assessment. A GMO reaches the law at first as a patented thing. There are not many critical legal studies on this subject. Maybe it is because the regulations of intellectual property rights, and especially the patent law, are today similar to the classical right of property, but 60 years ago. Indeed, roughly said, 60 years ago, the classic right of property could not be assessed or not be organized into a hierarchy amongst other rights; we could not weigh up the pros and cons. Nowadays legal constructions that counterbalance the absolute right of property do exist, such as employment law and environmental law, which have a limiting effect on the right of property. Conversely, inside the field of law, patent law is at present isolated, powerful, without any hierarchy with other rights. Another point is that, unlike the two previous scenarios, the experts are abiding by guidelines that are integrated into regulations. Thus the law comes inside the practice of expertise. As you can see, the situation is not the same as the previous examples. Concerning the expertise on GMOs, the legal environment is like a spider’s web.

The diagram could be...

Again two circles. This time you have to imagine a big circle, with "Legal environment & Legal constraints" and completely inside this first circle, an other one that represents "Expertise".

I have no conclusion; it is a matter of concern.