Nanotechnology – Within (trade) law or beyond it?

Overview of presentation Intro – Policy context Why should we care about the law What does the law look like – de lege lata What should the law look like – de lege ferenda

Intro – Policy context R&D support for nano overwhelming ‘Legislation’ typically seen as R&D framework programmes Funds (Commission, National Science Foundation) calling for review of regulation – Parliaments lag behind

Why should we care about the law Altruistically: environment, human health Selfishly: need for stable research and investment environment Cf. biotech/GMOs Generally: tension regulatory/trade law (incl. ‘chilling effect’)

What does the law look like – de lege lata No specific, tailor made law ≠ no law applies At the very least: product liability law, and ‘duty of care’, using the benchmark of the ‘bonus pater familias’

What does the law look like – de lege lata ctd EU: usual suspects: GMO legislation: Directive 2001/18 (deliberate release) ; Dir 90/219 (contained use) Dangerous substances/chemicals legislation - quid REACH? Liability Directive

What does the law look like – de lege lata ctd US: usual suspects: Toxic substances control Act Occupational Safety and Health Act Food, Drug and Cosmetics Act Environmental laws: CAA, CWA, RCRA

What does the law look like – de lege lata ctd ! US and EU risk analysis procedures compared 4 steps, circular/mesh v linear ! Different professional groups for each step EU more prone to precaution? Quid re input of regulatory agencies

What should the law look like – de lege ferenda 3.1 ‘Modern’ environmental law and the impact of the precautionary principle What Legal status Reversal of burden of proof?

What should the law look like – de lege ferenda ctd 3.2 Participation principles, ia of the ‘Aarhus process’ 3.3 Environmental ‘governance’ generally: ia avoiding knowledge apartheid

What should the law look like – de lege ferenda ctd 3.4 Impact of international trade law See also above: chilling effect of the World Trade Organisation - WTO Development from GATT, General Agreement on Tariffs and Trade, to TBT, Agreement on Technical Barriers to Trade, and SPS, Agreement on Sanitary and Phytosantitary standards

What should the law look like – de lege ferenda ctd 3.4 Impact of international trade law ctd. ‘Due process’ requirements of WTO law, including genuine negotiations and duty to take each other’s trade interests into account SPS: attempt to harmonise scientific procedure which leads to measures, but maverick science ok, and precautionary principle allowed

What should the law look like – de lege ferenda ctd See interim WTO GMO moratorium ruling: Questions re precaution Questions re subsequent scientific evidence Quid re ‘collective preferences’?

What should the law look like – de lege ferenda ctd 3.5 Regulatory co-operation? ‘Positive’ v ‘negative’ harmonisation: creation of a level playing field In the nano field, not just a free trade driver, but also necessary given the military dimensions of some of the technology Early signs of (transatlantic) regulatory co- operation

What should the law look like – de lege ferenda ctd 3.6 Room for regulatory innovation? Ie move away from ‘command and control’ Front-runner legislation? Who is ‘the’ industry: see eg classic issue of big industry v SMEs

Conclusion ‘Converging’ technologies means no easy regulatory pigeon-holes Chilling effect both of lack of regulation, and of trade law, Must not be underestimated, but Neither must it lead to haste