Two paths of risk regulation: the concurrence of scientific and sociocultural decision-making in the European law of agricultural genetic engineering

Future hazards which may result from genetically engineered plants can currently only be anticipated. Therefore, the handling of the potential risks is becoming a crucial political and legal question. The following article describes the differing national regulatory approaches in Europe: an economic, a scientific, and a sociopolitical approach pre-existed the European Union’s deliberate release Directive, which itself follows a primarily science-based approach. The latter is based on objective technological assessments of individual cases. At the same time, however, the Directive contains elements of a sociocultural approach, which is open to value-based judgments and thus, necessarily takes a subjective, general assessment of the use of genetically modified organisms. As a result, the European law of Agricultural Genetic Engineering provides two paths of risk regulation in parallel.     

Comparing precaution in the United States and Europe

The regulation of health and environmental risks has generated transatlantic controversy concerning precaution and the precautionary principle (PP). Conventional wisdom sees the European Union endorsing the PP and proactively regulating uncertain risks, while the United States opposes the PP and waits for evidence of harm before regulating. Without favouring either approach, this paper critically analyses the conventional depiction of transatlantic divergence. First, it reviews several different versions of the PP and their different implications. Second, it broadens the transatlantic comparison of precaution beyond the typical focus on single-risk examples, such as genetically modified foods. Through case studies, including hormones in beef and milk production and mad cow disease in beef and in blood donations, as well as reference to a wider array of risks, the paper demonstrates that relative precaution varies enormously. Sometimes the EU is more precautionary than the US (such as regarding hormones in beef), while sometimes the US is more precautionary than the EU (such as regarding mad cow disease in blood). Thus, neither the EU nor the US can claim to be categorically 'more precautionary' than the other. The real pattern is complex and risk-specific. Third, the paper seeks explanations for this complex pattern in five sets of hypotheses: optimal tailoring on the merits, political systems, risk perceptions, trade protectionism, and legal systems. None of these hypotheses fully explains the observed complex pattern of relative transatlantic precaution. The paper concludes that differences in relative precaution depend more on the context of the particular risk than on broad differences in national regulatory regimes.     

Obituary

The environmental risk associated with genetically modified organisms (GMO) implies that new approaches to risk assessment, risk management and risk communication are needed. In this paper we discuss the role of the precautionary principle in policy responses to GMO risk. We first discuss application of the criteria in the European Environment Agency report “Late lessons from early warnings: The precautionary principle 1896–2000” to environmental GMO risk, with focus on crop plants. Moreover, we discuss Bayesian analysis in the context of improving the informational basis for decision‐making under uncertainty. Finally, environmental uncertainties are intertwined with economic uncertainties. Providing incentives for improved risk assessment, risk management and risk communication is crucial for enhancing environmental and social responsibility and thereby facilitate implementation of precautionary approaches. We discuss environmental and social screening of companies as an example of how such incentives can be provided.     

Accountability and risk governance: a scenario-informed reflection on European regulation of GMOs

Regulating risks in the face of scientific uncertainty poses a particular challenge to policy-makers. Such problems are amplified when decisions are taken in a multi-level framework of supranational governance. The genetically modified organism (GMO) regulation in the European Union constitutes an especially salient issue of risk governance in a multi-lateral arena, as the topic is politically highly visible and decision-making is slow and contested. Furthermore, as authority is dispersed among multiple actors, European risk governance is in need of adequate mechanisms ensuring that decision-makers justify and account for their behavior. While legitimacy aspects of GMO governance have widely been examined, accountability relations within the field of GMO risk governance have hitherto only weakly been explored. Hence, this paper analyzes the question of who can be held accountable under the complex system of supranational risk governance. This paper claims that mere adherence by actors to the regulatory procedures during the decision-making process does not necessarily imply that overall accountability can be secured, resulting in ‘organized irresponsibility’. Although certain piecemeal accountability may exist, establishing overall accountability is complicated, precisely as a result of the complex system of interwoven rules.     

More Faust than Frankenstein: the European debate about the precautionary principle and risk regulation for genetically modified crops

This paper analyses the range of risk-related problems that have arisen over the introduction of genetically modified (GM) crops and food products in the context of the adoption of the precautionary principle (PP) in Europe. Adoption of the PP was intended to avoid some of the environmental problems that arose from the earlier reactive/preventive regulatory system developed for pesticides and also to encourage public acceptance of the new technology but is failing to achieve either of these aims. It is argued that a distinction needs to be made between interest-based and ethical or valuebased responses to risk issues and different approaches to conflict resolution are needed in each case. The PP can be seen as having allowed ethical and value-based concerns to have a new role in risk debates in contexts where they were previously excluded. Despite journalistic references to 'Frankenstein foods' the major protagonists in the debate about GM crops and foods are more concerned about the Faustian bargain which puts science, technology and the industries that increasingly control them in charge of world food production systems. Rather than abandoning the PP, as has been suggested by some risk analysts, a more balanced approach to incorporating it into risk regulation, coupled to balanced skepticism about the motivations of stakeholders, is outlined as a starting point to break into the current escalating cycle of conflict while also meeting the needs of modern industrial societies.     

Corporate Reporting Practices in Poland and Romania – An Ex-ante Study to the New Non-financial Reporting European Directive

The European Directive 2014/95/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups is applicable by European Union-based entities starting with the financial year commencing on 1 January 2017. Central and Eastern European (CEE) countries are reported to face difficulties when implementing new European or global accounting regulations and models. We investigate the quality of non-financial disclosures in Poland and Romania, the biggest CEE countries, prior to the European Directive’s adoption and explain the diffusion of this type of reporting through the lens of the institutional pressures. We find that prior regulation, local institutional characteristics, ownership, industry and auditors have an impact on the quality of disclosures. Poland experienced a higher extent of voluntary reporting, but Romania faced prior regulatory demands for non-financial reporting (NFR). We find that the overall disclosure score is higher for Romania, which provides support for the importance of regulations to strengthen the spread and quality of NFR. The research findings are relevant to practice and policy. This ex-ante evaluation of reporting practices and of their determinants is useful to understand how change occurs in practice and how companies react to regulatory and other institutional demands.     

New Risk-Based Capital Standards in the European Union: A Proposal Based on Empirical Data

In response to criticism concerning the current solvency system, the European Commission is developing new rules for insurance companies operating in the member states of the European Union (EU). Under this so-called Solvency II concept, an insurer is allowed to verify its solvency by using an internal risk management model previously approved by the regulatory authority. In this article we develop such an internal risk management approach for property-liability insurers that is based on dynamic financial analysis (DFA). The proposed concept uses a simulation technique and models the central risk factors from the investment and underwriting areas of an insurance company. On the basis of the data provided by a German insurer, the ruin probabilities under different scenarios and varying planning horizons are calculated.     

Productivity Analysis of UK Auditing Firms

This study analyses the productivity change in the United Kingdom (UK) of auditing firms over the period 2005–2012, using a Malmquist index with a technological bias. Productivity is the rate at which goods or services are produced relative to the input. A common measure of productivity is the ratio of output per unit of labour used in the production. Productivity change is the change in the total output relative to the change in the total input and it is composed of technical efficiency change (managerial practices and scale effects) and technological change (innovation and investment in new technologies). Until 2005, the auditing profession in the UK employed a regime of self‐regulation; after a brief hiatus, the country adopted the new European Statutory Audit Directive in April 2008, changing the regulatory framework. This study analyses the productivity change among UK auditing companies both before and after the regulation change. Our results indicate that the productivity change among UK auditing companies is mixed and not dictated by regulation. Furthermore, the traditional growth accounting method, which assumes Hicks‐neutral technological change, is not appropriate for an analysis of the productivity change in auditing firms.     

CHANGES IN THE INTERNATIONAL REGULATION OF AUDITORS: (IN)STALLING THE EIGHTH DIRECTIVE IN THE UK

In 1984 the European Commission issued the Eighth Company Law Directive requiring each member State to ensure that its national rules met common standards for the education, training and qualification of statutory auditors (84/253/EEC; OJ 1984 L126/20). The Directive insisted that national governments take responsibility for the regulation of auditors, a requirement that clashed with the autonomy which many professional bodies believed they possessed. In this article we explore the processes through which the Eighth Directive on the regulation of auditors has been implemented in the UK. We argue that the Eighth Directive illuminates the effects of political and economic discourses on the development of accounting and auditing regulations and the protocols involved in installing such regulations into particular national contexts. The Eighth Directive represents a revealing moment in the shifts in political discourse (towards neo-liberalism) in the UK and the problems of reconciling new modes of economic and political thinking withinternationalregulatory programmes and institutions. Moreover, the implementation of the Eighth Directive in the UK cannot be comprehended outside of (i) an analysis of the problems the British Government has had in “managing” the accountancy profession in the UK and (ii), understanding the powerful image of the auditing industry as a key contributor to the UK economy.     

Siting technological risks: cultural approaches and cross-cultural ethics

Are European national risk prevention regulations reflecting different cultural attitudes towards risk? This article replies positively to this question by elaborating the results of an investigation led between 2004 and 2008 by the Joint Research Centre of the European Commission. The investigation focused on the European national implementations of Article 12 of Directive Seveso II on Dangerous Substances (96/82/EC) and aimed at providing an overview of different methodological approaches to the matter of land use planning in areas subject to the risk of major accidents. Five countries were selected for in‐depth analysis and comparison. This article focuses on one aspect of their different approaches to land use planning in at‐risk areas that was not considered by the European investigation: the influence of national cultural backgrounds on the implementation of Article 12 within the respective national legislations and practices. To explain whether different cultural orientations may have affected them, the article refers to one cultural index in particular, namely the uncertainty‐avoidance index (UAI) proposed by the Dutch sociologist Geert Hofstede. This index provides a key of reading of the different methodological orientations adopted for regulating land uses in the vicinity of hazardous establishments in these countries; by applying it, the study demonstrates that different cultural attitudes towards uncertainty may be a determinant factor in the approaches to and the regulation of the matter of hazardous facility siting. In the conclusions, the regulatory as well as ethical implications of this finding are discussed.     

Effectiveness of independent boards of UCITS funds

In order to protect fund investors against conflicts of interest with fund management companies, US funds have mandatory independent directors, but this obligation is not required under the European Union Undertakings for Collective Investment in Transferable Securities (UCITS) Directive. Nevertheless, a considerable number of UCITS funds do have independent directors. Whether independent directors should also be mandatory in Europe has been a topic of ongoing debate. Using a sample of Luxembourg UCITS, we test the hypothesis that more independent boards add value for investors through lower costs and/or better investment performance, but we fail to find supporting evidence, even for funds with a higher risk of conflicts of interest. Oversight by independent depositaries and institutional shareholders does not seem to be effective either. It appears that board attitude and the sponsor distribution model are more important since we find evidence that boards that prioritise cost monitoring have lower costs and that independent sponsor funds have better performance. These results question the effectiveness of self-regulation or formal regulation requiring independent board members.     

The evolution of emissions trading in the European Union – The role of policy networks,knowledge and policy entrepreneurs

This paper starts with a recapitulation of how emissions trading became a cornerstone of the European Union’s climate policy. While a whole bouquet of reasons can be identified the major reasons why the EU Commission decided to pursue the establishment of an emissions trading scheme within the EU are: (1) the integration of international emissions trading into the Kyoto Protocol; (2) the failure of the 6th Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) and the withdrawal of the United States from the Kyoto Protocol negotiations; and (3) the unsuccessful attempt to introduce an EU-wide CO₂-tax. Other reasons were the fact that emissions trading did not need unanimity in the European Council like the CO₂-tax; the economic efficiency of emissions trading which appealed not only to the Commission but also to industry and Member States; the danger of a fragmented carbon market as the United Kingdom and Denmark had already set up domestic emissions trading schemes that were incompatible; the incentive a European emissions trading scheme would be for the formation of a global carbon market; and the possibility to influence investment strategies of power companies towards a sustainable modernisation of the EU’s power generation infrastructure.Drawing upon these preconditions, this paper analyses the development of the European Union Emissions Trading Scheme (EU ETS). Based on the fact that the EU is embedded in a multi-level policy-making architecture which encourages the emergence of policy networks it is argued that the EU ETS has been shaped by an (informal) issue-specific policy network established by some staff members from DG Environment, including individuals knowledgeable on emissions trading – such as experts from consultancies, environmental NGOs and the business sector. It is argued that within this European policy network on emissions trading the European Emissions Trading Directive – as adopted on 13 October 2003 – has been negotiated and developed. It is concluded that the sharing of knowledge about this relatively new and largely unknown regulatory instrument and about design options for a potential European emissions trading scheme was the key momentum for the establishment and continuity of this policy network and that the ability of managing knowledge generation processes was the main factor to allow for a few staff members from DG Environment to play a dominant role as policy entrepreneurs in developing the European Emissions Trading Directive, even beyond their formal role of proposing the scheme as representatives from the EU Commission.     

A report of TRUSTNET on risk governance--lessons learned

During the 1990s, the current regulatory frameworks and decision making processes in the European Union for hazardous activities such as nuclear and chemical waste management, hazardous industrial facilities, food production, and genetically modified organisms (GMOs) in agriculture and health care, were confronted at both national and local levels with significant difficulties in trying to meet the different concerns of the various categories of stakeholders involved. The TRUSTNET concerted action was established to assess these difficulties and their consequences and to propose more coherent, comprehensive and equitable approaches for evaluating, comparing and managing health and environmental risks. This paper presents the outcomes of this programme. A European network of some 80 participants was established comprising an interdisciplinary team of regulators, experts and stakeholders with experience of industrial, natural and medical risks. The participants identified the main challenges to the governance of hazardous activities on the basis of a detailed analysis of some 11 case studies, and determined criteria for assessing what can be considered as 'good' governance of hazardous activities. As a result of these investigations, an interdisciplinary model describing the available approaches to governance of hazardous activities is proposed in the form of two main paradigms: Top-Down Governance and Mutual Trust Governance. Using this model the difficulties encountered by current approaches to risk regulation are interpreted. The new perspective describes how the two paradigms can interact in the continuous social dynamic to allow the maintenance of social cohesion.     

The Impact of Corporate Governance Quality on Earnings Management: Evidence from European Companies Cross‐listed in the US

The study reported herein examines the impact of two central corporate governance mechanisms (internal audit function quality and board of directors’ quality) on the incidence of earnings management. Unlike most prior studies in the area, focused mainly on US firms, this study looks at European firms that are cross‐listed in the US and covers a long time span – before and after major changes were implemented in corporate governance policies (Sarbanes‐Oxley Act in the US and the 8th Company Law Directive in the European Union). Using novel and comprehensive measurement approaches for internal audit function quality and board of directors’ quality, we find that both mechanisms have a negative direct effect on the incidence of earnings management, while their interactive effect is positive. A longitudinal analysis of both mechanisms also reveals that internal audit function quality and the quality of boards of directors have increased significantly since the policy changes.     

Anti-selective disclosure regulation and analyst forecast accuracy and usefulness

We investigate regulations intended to stop managers from privately disclosing corporate information to analysts in a setting with enhanced potential to isolate regulatory effects: the European Union (EU) Market Abuse Directive (MAD), a common regulation implemented by member states with varying sanctions and enforcement resources. Following the implementation of MAD in a country, analyst forecasts become more accurate, with relatively little of the effect attributable to increased voluntary public disclosure by covered firms. The effect of MAD on analyst accuracy is stronger in countries with more stringent enforcement and sanction systems. Although the improvement in accuracy is associated with the implementation of MAD alone, stock prices do not respond more strongly to analyst forecast releases until after market-trading enforcement improves under subsequent EU legislation (MiFID).     

The Future of Banking Regulation in Developed Countries: Lessons from and for Europe

If the bank regulatory structure in developed countries, particularly those in the EU (as well as the US), were not changed, considerable private and social costs could be incurred. We first outline the current EU regulatory framework and describe and analyze recent bank crises and failures. Based on this record and on the (beneficial for consumers) changes in EU banking regulation, on new data on bank capital/asset ratios in ten European countries, and on an analysis of market and technological changes, we conclude that the present regulatory structure is unlikely to achieve banking stability in the future. We then propose and describe a regulatory framework that can deal effectively with this situation and show how it would affect EU banks.     

The market quality effects of sub-second frequent batch auctions: Evidence from dark trading restrictions

Recent European regulatory restrictions on dark trading induced an increase in sub-second frequent batch/periodic auctions (PA). We exploit this development to investigate the effects of PA on market quality. The restrictions are linked to an observable increase in PA and an economically meaningful loss of liquidity. PA is also associated with a significant decline in liquidity and informational efficiency. However, consistent with Budish et al. (2015 – The Quarterly Journal of Economics, 130, 1547), increased execution via PA leads to a decline in adverse selection costs, which underscores its potential as a trading mechanism for addressing latency arbitrage and the technological arms race.     

Optimal regulation,executive compensation and risk taking by financial institutions

We present an equilibrium model of financial institutions to examine the optimal regulation of risk taking. Shareholders provide incentives for management to increase risk to excessive levels. Regulators use caps on asset risk and compensation to achieve the socially optimal risk level. This level trades off costs of risk shifting and costs of bank default. Without regulation, equilibrium risk lies above the optimal level. If information and enforcement are perfect, either policy tool (caps on asset risk or compensation) achieves the optimal risk level. If there are frictions – if enforcement is limited, if there is uncertainty about the incentives facing management and costs of risk shifting, or if regulation cannot be bank specific – welfare can be improved by employing both policy tools.     

The regulatory response to the financial crisis

There are numerous aspects concerning financial regulation which the current financial turmoil has high-lighted. These include: (1) the form of deposit insurance; (2) bank solvency regimes, ‘prompt corrective action’; (3) Central Banks’ money market operations; (4) commercial bank liquidity risk management; (5) procyclicality of CARs (and mark-to-market); lack of counter-cyclical instruments; (5) boundaries of regulation, conduits, SIVs and reputational risk; (6) crisis management: (a) within countries, e.g. UK Tripartite Committee; or (b) cross-border, how to allocate the burden of cross-border defaults? This paper describes how the crisis exposed regulatory failings, drawing largely on UK experience, and suggests remedies.