Non-Regression in EU Risk Governance: Testing the Limits of Pesticides Deregulation

Abstract

Set against the sweeping deregulatory push unleashed by the Omnibus surge, this article advances a notion of non-regression attuned to the specificities of EU risk governance. It argues that non-regression so conceived must be normatively anchored in the precautionary principle and operationalised through proportionality. Through a precaution-inflected proportionality test, the normative commitments underpinning the precautionary principle can be translated into structured legal reasoning and leveraged via the principle’s inherent primacy of health and environmental protection. When applied to an extreme instance of pesticides deregulation – the abolition of mandatory re-approvals of pesticide substances – this test yields a disquieting picture of failure across the board, from suitability and necessity to proportionality stricto sensu . Most striking is the troubling imbalance between the deregulatory measure’s tenuous benefits and its substantial interference with the precautionary principle: in its current form, the measure would significantly erode the EU’s preventive regulatory epistemology based on sound science, along with potentially drastic and diffuse consequences for the Union’s high protection levels. While the notion of non-regression developed in this contribution may tame unfettered legislative backsliding of this sort, it is no failsafe against deregulation. Only the most extreme of cases may fall within its reach, leaving others to slip through the cracks of legislative discretion.