It is widely recognized that the European Commission is a powerful body, but the extent of its actual power is often still underestimated.
Not only does the institution hold a monopoly on proposing laws that will apply to nearly 450 million people—or many more, if one takes into account the “Brussels effect,” that is, the voluntary adoption of EU standards by non-European industries.
It also plays a key role after the publication of its proposals, during the legislative process, thanks to its role in guiding or “mediating” negotiations—the so-called “trilogues”—between EU member states and the European Parliament.
Last but not least, even after the adoption of EU legislation, the European Commission exerts significant influence over the measures implementing EU legislation, as it chairs the “comitology” committees composed of national representatives tasked with deciding on such measures. According to a Dutch doctoral thesis, nearly 50% of the content of legislation is decided at that stage.
A large-scale study conducted by the think tank Open Europe concluded that the impact of EU legislation accounts for about two-thirds of all regulation in the European area. Despite this great power, the European Commission’s decision-making process often leaves much to be desired. Not only are many proposals still adopted without a regulatory impact assessment, but scientific considerations are sometimes not given sufficient weight. Ananalysis by the think tank ECIPE notes that, even when impact assessments are carried out, “indirect and long-term costs are often overlooked, marginalized, or ignored entirely.”
Ignoring scientific evidence
The latest example of this is the European Commission’s attempts to regulate social media, justifying its actions on the grounds of protecting minors. Among its numerous legislative tools are the Digital Services Act (DSA) and the Digital Markets Act (DMA). One notable measure was the unveiling of the EU’s age-verification app, which has been criticized from a privacy perspective, not least because the mobile app was hacked just hours after its launch.
More fundamentally, Belgian professor of cognitive psychology Wouter Duyck has warned against the assumptions underlying this approach, explaining that it is by no means clear that screen time is inherently harmful. He recently wrote: “Since people are deliberately being scared with ‘brain’ research, here’s a quick overview of the largest ‘brain’ study. 12,000 repeated brain scans of children (a huge number) published in the leading journal Cortex. Conclusion: ‘no impact’.”
The study he cites notes that “exploratory analysis aimed at predicting the impact of screen media activity on neural trajectories showed no significant impact of SMA [screen media activity] on neural maturation over a two-year period.”
Even when it comes to health policy, the EU executive is regularly criticized for its rather tenuous relationship with the scientific consensus. Last year, European Health Commissioner Olivér Várhelyi openly stated that “new tobacco and nicotine products pose health risks comparable to traditional ones.” This simply contradicts every single scientific assessment. For example, according to the UK government’s Department of Health, “the most reliable estimates indicate that e-cigarettes are 95% less harmful to health than traditional cigarettes.” Recently, Várhelyi reinforced his position, pointing to nicotine as a cause of obesity and heart disease, despite the evidence showing that excessive sugar intake, junk food, alcohol abuse, and physical inactivity are the main factors contributing to these conditions.
In late April, a coalition of 26 independent scientists and public health experts submitted a formal letter to the European Commission, with the key message that not all nicotine-containing products pose the same risk. While attaching a series of studies, they emphasized: “Europe cannot claim to ‘follow the science’ on cancer while ignoring one of the most fundamental scientific distinctions in tobacco control: the difference between smoke-containing and smoke-free products.”
This illustrates the need for more evidence-based decision-making at the EU level. The debate is taking place against the backdrop of the review of the Tobacco Excise Duty (TED) Directive and a possible new “Eco-Nicotine” directive, which aims to address the environmental impact of disposable e-cigarettes. Meanwhile, individual member states such as Belgium are implementing a ban on flavors for e-cigarettes, despite negative experiences with this approach in the Netherlands. This demonstrates, at the very least, that the European Commission may not be the only institution with shortcomings when it comes to developing science-based policies.
The Precautionary Principle
At the heart of the issue is the EU’s adherence to the “precautionary principle,” which entails a deeply anti-scientific intolerance toward any risk. The principle provides that, as the European Commission itself states, “where scientific data do not allow for a complete risk assessment, recourse to this principle may, for example, be used to block the distribution or order the withdrawal from the market of potentially dangerous products.”
David Zaruk, an academic and commentator specializing in risk and EU policy, explains that this interpretation of the principle by the European Commission—which stems from the environmental NGO “European Environmental Bureau”—“effectively reverses the burden of proof, meaning that unless it can be demonstrated with certainty that something is completely safe, it cannot be placed on the market.”
He notes that, as a result, “we are now systematically withdrawing products from the market. No new pesticides are being brought to market, and farmers are losing valuable tools. And then the situation became even more complicated when the Commission said: ‘By the way, you also have to prove that it is not an endocrine disruptor’—that is, a chemical that mimics endocrine hormones. Well, coffee is an endocrine disruptor. In reality, defining an endocrine disruptor in and of itself is quite difficult.”
Peter McNaughton, professor of pharmacology at the University of Cambridge, believes that aspirin would not have been approved at the time if this principle had been applied to the matter, stating: “This drug has significant negative side effects and would never be approved today. The benefits, however, are enormous and growing.”
Paternalism
The precautionary principle is embedded in EU chemicals legislation, for example in the 2006 REACH directive, one of the most complex pieces of legislation in EU history. It requires companies to register chemicals with the European Chemicals Agency (ECHA). Not only was this incredibly bureaucratic, but it also served to keep new entrants out of the EU market. In some ways, paternalism and protectionism tend to go hand in hand.
The precautionary principle is also enshrined in the European Commission’s action plan aimed at limiting alcohol consumption to reduce the incidence of cancer. In doing so, the Commission aims to support EU member states in limiting the affordability and availability of alcohol, as well as in restricting advertising and promotion. Although there is obviously a link between alcohol abuse and cancer, it is perfectly possible to consume alcohol responsibly and in moderation. Recently, some studies have shown that even low to moderate alcohol consumption carries health risks, but the question is obviously whether these risks are proportionate to policies aimed at limiting alcohol consumption by adults. They should be free to make that trade-off for themselves.
This paternalistic and risk-averse attitude is also evident in the European Parliament when it comes to regulating digital innovation, according to German CDU MEP Axel Voss. “What is happening in the European Parliament is that most people are driven by fear and concerns and are trying to rule everything out,” he commented on MEPs’ attitude toward Artificial Intelligence. This might help explain a couple of things about why the EU is lagging behind the United States and China when it comes to AI.
In this regard, it’s amusing to note that while science doesn’t always inspire EU legislation, at least science fiction seems to. In 2021, KU Leuven scholar Domenico Orlando listed in a rather entertaining article examples where, in his view, policy measures appear to have been “inspired by fiction.” As an example, he cites the now-infamous EU AI Act, which, he notes, is “influenced by popular culture’s fears of technology rather than purely scientific or technical assessments”
He then refers to how “an episode of Black Mirror depicts a near future in which individuals are assigned a social score based on their behavior.” According to Orlando, this was one of the sources of inspiration for the ban on social scoring in the AI Act.
Certainly, there may have been adequate empirical justifications for social scoring, but clearly the AI Act is not the great success that was hoped for. Presented as the “world’s first global AI law” in 2023, it is already being revised for simplification, to make it “simpler” and “innovation-friendly.”
