In the casual political rhetoric about environmental regulation, it is often claimed that the U.S. government regulates on the basis of risk while the European Union (or EU member states) regulates on the basis of hazard. The implication is that the U.S. government relies on a more rigorous, scientific process of assessment than does the EU, which allegedly helps explain why the EU is more pro-regulation than is the United States.

An alternative view, advanced originally by the late Professor Aaron Wildavsky of the University of California-Berkeley and amplified in a recent book by Professor Jonathan Wiener of Duke University, and colleagues, is that societies engage in a process of “risk selection.” What worries some societies does not worry others.

So the damage is done: both emperors go naked, and this at a particularly sensitive stage of the negotiations. Worse, the hegemons sit on an applecart already so full that only a “TTIP light” seems to save it from toppling, albeit at a price of losing its most precious apple: regulatory coherence, no wand forever!

But wait! We may already have given up hope for transatlantic agreements on financial cooperation and data protection. Hormone beef and biotech seeds, if not feed, also look rather far away from good and risk–free regulatory solutions. And carmakers in Asia and South America may have chuckled with relief when the efforts of US and EU manufacturers of automobiles failed to define a fully harmonised, standardised and mutually recognised “TTIP Car” – after which they would have had little if any leeway for their own motors, emission limits, windscreens and safety standards.

This is where the leaks may have opened a welcome window of opportunity for third countries, blinded as they apparently all are by the prospects of trade liberalisation racing ahead with megaregional steps too big for them to buy in with any hope for negotiating power.

The dispute over ractopamine in the Codex Alimenta-rius Commission (CAC) exemplifi es changes in Codex proceedings. In its early days, the CAC resembled to an honourable Club of senior food safety offi cials aim-ing at setting food standards in a consensual manner. However, with the WTO connexion established in 1995, CAC proceedings are overshadowed by looming trade disputes and increasingly decided by majority voting. The tendency towards majority voting in the CAC may ultimately undermine the universality of food safety standards and the legitimacy of the CAC as an inter-national standard setting body.

To discourage unhealthy eating and limit the population's intake of fatty foods, thereby alleviating the current obesity “epidemic”, an increasing number of countries across the industrialised world are considering levying taxes on unhealthy food. A “fat tax” may be defined as a tax or surcharge placed upon fattening foods, beverages or individuals with the aim to decrease consumption of foods that are linked to obesity. This is not an entirely new idea – some theorists, starting with Arthur Pigou, a 20th century English economist, have long presented the arguments for imposing special taxes on goods and services whose prices do not reflect the true social cost of their consumption. Examples of Pigouvian taxes are duties on cigarettes, alcohol, gambling and environmental emissions. Support for another such tax, a fat tax, is now spreading across the European Union. On 1 October 2011, Denmark introduced a tax on foods by targeting those products that are high in saturated fat. The Danish Act (hereinafter, Act) confirms the trend in various EU Member States to tax certain foods or consider taxing them in the future.

The regulation of nanomaterials is still surrounded by scientific uncertainty regarding their potential human health risks. It is therefore useful to consider learning approaches in the process of regulation. Effective regulation is conceptualised with regard to collaborative activities of state and non-state actors that enable mutual learning regarding the health risks of nanomaterials. A theoretical framework is offered for studying learning processes in the area of occupational safety and health. Drawing on the network governance literature, three learning types (namely substantive, strategic, and institutional learning) are distinguished. Analytical conditions are proposed and applied to the case of nanomaterials in Germany, thereby offering insights into learning processes in industry-initiated collaborative activities. It is concluded that the development of trust among network collaborators is decisive for learning processes. Accordingly, a proposal for research into specific stages of trust development is made.

In this issue of the journal, Dr. Ragnar Lofstedt examines the current state of the EU regulatory framework with respect to chemicals and illustrates how the hazard-based approach sealed the fate of two important chemicals in the EU market-place. He also explores how the attitudes, technical knowledge and economic influences of the individual member states determine the outcome of environmental and chemical regulations. Lastly, Dr. Lofstedt provides some recommendations to improve consistency in the European regulatory process and ensure greater scientific, as well as, risk-based regulations.

The European Commission's (Commission) Better Regulation Strategy (BRS) is the major guideline for the Commission to assess legislation. It draws on regulatory impact assessment (RIA) via cost–benefit analysis (CBA), expert advice, and simplification in EU law–making. Yet, the practice of RIA by the Commission as well as in EU member states, while unavoidably incomplete, has shown avoidable shortcomings. The Commission's New Better Regulation Strategy of 2015 (NBRS) contains language that appears to address these shortcomings. If pursued consequentially, it would require an approach that resembles what has been called responsive behavioural regulation. At the same time, global initiatives from inter alia the World Bank emerge to include behavioural insights into policy analysis in the form of responsive regulation. This piece assesses potential models of RIA that can help to articulate the behavioural assumptions which are implied by NBRS as enshrined in the policy document “Better regulation for better results”. The methodological implications of the NBRS require a significant departure from the reliance on classical CBA, which is characteristic for the previous “Better Regulation” documents submitted by the Commission and which we term Old Better Regulation Strategy (OBRS).

On 8 October 2010, the European Commission issued a communication paper on Smart Regulation in the European Union. The paper reports on progress made, future priorities and strategy in the field of regulatory reform, for the information of interested outsiders. It is the latest in a series of such communications, issued on a regular basis since the first major, systematic action plan in 2002.

However, this most recent communication comes at a time when the context has changed noticeably. First, the financial crisis sparked by the credit crunch has altered attitudes to regulation. More attention is now being paid to the effectiveness of regulation and its overall quality than before. The Communication acknowledges this and underlines that regulation is essential to ensure that markets deliver sustainable prosperity for all. Second, a number of the Commission’s tools have been in place for some time, allowing it to draw useful lessons from its own experiences as well as from those of other countries. Its impact assessment system recently underwent a major examination by the European Court of Auditors.

The Austrian Umweltsenat is a court or tribunal for the purposes of Article 234 EC. The Environmental Impact Assessment (EIA) Directive is to be interpreted as meaning that a Member State has to subject a transboundary project to environmental impact assessment (EIA) even if the size of the project on its own territory does not reach the threshold for an assessment as defined in Annex I of the EIA Directive but the threshold is exceeded when parts of the project that are located in another State are taken into account (author’s headnote).

The Politics of Precaution by David Vogel, and the edited volume, The Reality of Precaution each compare the United States with Europe over a range of regulatory areas. Vogel claims that the US and Europe changed places in recent years with Europe becoming more precautionary than the US. The edited volume covers a wider range of topics and finds that the results are mixed. The evidence of diversity in the edited volume appears convincing, but this essay argues that both volumes too narrowly focus on the precautionary principle. Rather it argues for a broader context that confronts precaution both with the proportionality principle, which is a mainstay of European Union law, and with the limitations of cost/benefit analysis and Impact Assessment. It unpacks the normative underpinnings of these concepts to suggest a broader frame for policy analysis.

This report discusses a proposal fromthe Center for International Environmental Law(CIEL), ClientEarth and Friends of the Earth Germany (Bund) on the regulation of nanomaterials in the European Union. It discusses in particular, the proposal for a horizontal regulation on nanomaterials (also referred to as a nano-patch for existing legislation) that would fill in the regulatory gap on nanomaterials. The proposal goes beyond a review of the REACH text and encompasses all EU legislation relevant to nanomaterials. The proposed instrument would amend the REACH text with delimitation in scope to all areas relevant to nanomaterials (on the model of Regulation 1272/2008 on the classification, labelling and packaging of chemicals). The main aim of the regulation is to ensure that hazard, risk and exposure assessments for all forms and uses of such materials are adequately carried out and taken into consideration.

Case C-442/10, Churchill Insurance Company Limited v Benjamin Wilkinson and Tracy Evans v Equity Claims Limited [2011] ECR I-00000

Article 3 No. 1 of Council Directive on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability, as amended, codified and repealed by Directive 2009/103/EC, OJ L - 103, of 02.05.1972. pp. 1–6. [First Motor Insurance Directive]

Article 2 No. 1 of Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, as amended, codified and repealed by Directive 2009/103/EC, OJ L – 8, of 11.01.1984. pp. 17–20. [Second Motor Insurance Directive]

Article 1 No. 1 of Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, as amended, codified and repealed by Directive 2009/103/EC, OJ L – 129, of 19.05.1990. pp. 33–35. [Third Motor Insurance Directive]

E-commerce and information society services became part of the quotidian language of the European institutions in the mid-1990s, as the European institutions gazed into a crystal ball wherein electronic commerce would further the competitiveness of the internal market. Gradually increasing volumes of customers began to purchase goods and services via the internet, reflecting the development by undertakings of the internet as a sales channel and also due to the regulation of such transactions. Concurrently the internet can be characterised by its tendency to bring market actors closer together, and the case of DocMorris, concerning the sale of medicinal products via the internet, has been described as constituting an instance whereby the technological revolution which the internet embodies has “well and truly reached the doors” of the Court of Justice.

The Appellate Body report in EC-Seal Products is a landmark decision in several respects: for its recognition that animal welfare is a matter of public morality that may justify a trade ban in response to cruelty; for the AB's new–found clarity with respect to the irrelevance of regulatory purpose in the determination of “treatment no less favourable” under the National Treatment and MFN provisions of the GATT; for its suggestion that trade measures not defined by product–related distinctions but other criteria are not covered by the TBT Agreement; and for its partial acknowledgement that a Member may maintain a measure consistent with Article XX even if the measure represents a complex trade–off between a main purpose and other purposes that may limit the extent the main purpose can be furthered. But the decision arguably raises as many questions as it answers, and some have already complained about the rather sphinx–like quality of the judgment.