The administrative risk decision-making mechanism regarding the authorization of GMOs in Germany/the EU and in China
Authors:   , Luo Yanni 
Published: January 2022

Both China and the EU have nearly 30 years of legislative experience on GMOs. However, despite all the experience gained so far and theoretical analyses, due to the social concerns about GMO risk, both China and Germany are still encountering a decision-making dilemma on authorizing green GMOs. Therefore, the dissertation is dedicated to the issue of whether there is a possibility that this dilemma could be resolved by improving or reformulating the administrative risk decision-making mechanism regarding green GMOs. Specifically, the dissertation analyses four concrete questions: operation of classical decision-making on danger prevention, the challenges posed by uncertain risks, the theoretical legal response to uncertain risk, and the functioning of legally constituted decision-making mechanisms for GMOs in Germany/ the EU and China. Conventionally, danger is a threshold for the executive to intervene in individual liberty. It can ensure the rationality of ex-ante intervention and further guarantee a balance between individual liberty and public safety. Regarding the danger prevention decision-making process, the executive authorities investigate the factual information at first; then, based on reliable and accessible common knowledge about the rule of causality, predict the degree of possible damage and the occurrence probability; at last, make ex-ante intervention decisions to interrupt the causality chain and avoid damages. In the risk society, uncertain risk of GMOs is characterized as collectively wide-ranging, manufactured, high-technological, and value-oriented. The ex-ante intervention of the administration extends from danger to uncertain risk, i.e., risk precaution. The essential cause of uncertain risk is that humans do not have sufficient knowledge and have not yet grasped the rule of causality regarding new technologies. Due to the lack of a cognitive reference standard, it is not easy for the administration to judge the existence of risks and make rational decisions on risk precaution, which, consequently, amounts to losing the balance between individual freedom and public safety. Besides, if the authority makes a decision ad arbitrium, and expects learning by error, this may cause significant secondary risks. In the risk management system, there are two primary, partly interrelated strategies to manage risk that are currently used: that is, knowledge generation and proceduralization. Specifically, to de-materialize the legislation, integrate multipartite participation in the decision-making process, and open the procedure for updating the information can contribute to the generation of the requisite knowledge. Proceduralization can assist with knowledge generation, promote the reconciliation of conflicting interests, compensate for material and legal deficits, and control the legitimacy of administrative behavior. In the final chapter, the laws on GMOs in the EU, Germany, and China are analysed, especially under the perspective of the concrete risk decision-making mechanisms. Overall, this dissertation argues that law can procedurally guarantee the independence and reliability of experts and ensure that access to public participation is open. But what the law can do to address public trust and scientifically uncertain risks, is limited.