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Findings from behavioural research are gaining increased interest in EU legislation, specifically in the area of unfair commercial practices. Prior research on the Mars case (Purnhagen and van Herpen 2017) has left open whether empirical evidence can provide an indication that this practice of using oversized indications of additional volume alters the transactional decision of consumers. This, however, is required to determine the “misleadingness” of such a practice in the legal sense as stipulated by the Unfair Commercial Practices Directive 2005/29/EC. The current paper closes this gap by illustrating how behavioural research can inform legal interpretation. In particular, it extends the previous research in two important ways: first, by examining the actual choice that people make; and second, by investigating whether the effects remain present in a context where a comparison product is available. Yet, while supporting and extending the findings of the study from Purnhagen and van Herpen (2017) on deceptiveness, the current study could not produce empirical evidence of a clear influence on the transactional decision of consumers, in the way “UCPD” requires.

We discuss options to reform the EU genetically modified organisms (GMO) regulatory framework, make risk assessment and decision-making more consistent with scientific principles, and lay the groundwork for international coherence. The first in a three-part series, this article focuses on reform options related to the scope of the legislation and the GMO definition.

Voluntary sustainability standards (VSSs) are increasingly regulating sustainable consumption and production, thereby operating as a regulatory authority to promote sustainable development. As VSSs regulate economic activities they may be subject to legal provisions framed by international and EU economic law. The extent to which VSSs are subject to these legal provisions depends on the interpretation and application of international and EU economic law to VSSs. This interpretation and application determines the regulatory space within which VSSs can promote sustainable development. The regulatory space for VSS-setters to promote sustainable development that follows from the interaction between the application and interpretation of international and EU economic law and VSSs remains unclear. From the perspective of promoting sustainable development, this is problematic as this lack of clarity may allow for an interpretation and application of international and EU economic law that inhibits the potential of VSSs to promote sustainable development. As such, this inhibitive effect may conflict with the overarching objective of international and EU economic law to promote sustainable development. To remedy this conflict, more clarity is provided in this dissertation regarding the interaction between the interpretation and application of international and EU economic law and the regulatory space of VSSs. When investigating this interaction the normative assumptions underlying legal interpretation and application were examined by using critical legal analysis as a theoretical framework. This dissertation, first elaborated upon the regulatory structure of VSSs in Chapter 2. Subsequently, this dissertations used a case study analysis of EU consumer law (Chapter 3), EU fundamental rights law (Chapter 4), WTO law (Chapter 5) and EU competition law (Chapter 6), to describe and examine how the interpretation and application of international and EU economic law interacts with the

There are shortcomings in the centralized food regulatory system in Indonesia, such as poor regulatory practices, lack of engagement between regulation and the actual socioeconomic factors, the lack of quantitative and empirical analysis of available academic papers in the decision-making of regulation, the absence of public consultation in the regulatory formulation, and the absence of legal basis and strategy for regulatory review and simplification. The centralized food regulatory system in Indonesia can be categorized as a center-state regulation. Thus, the shortcomings could largely be attributed to the generally perceived failures developed in regulatory theory of state-centered regulation. In developed countries, the solution for the shortcomings is mainly attributed to forms of decentered regulation. To extrapolate those solutions to the Indonesian context might, however, be too simplistic since the socioeconomic setting and the magnitude of food safety problems might substantially differ. This thesis seeks to contribute to food safety policy decision-making, via the design of a more appropriate framework for developing food laws and regulations that can be used by developing countries such as Indonesia to strengthen their national food control system. The FSO/ALOP framework for developing countries can instead be used to align food safety control systems and the socioeconomic prerequisites of Indonesia with decentered regulation. the development of the FSO/ALOP framework as an effective management tool in developing food laws and regulations in Indonesia.

Domestic regulatory standards can migrate to other jurisdictions via trade. This ‘extraterritorial effect’ has been most frequently demonstrated with the exportation of the typically more stringent European Union (EU) regulations to other countries. The EU’s trading partners often involuntarily ‘trade up’ and adopt EU regulations in order to access its market. The extraterritorial effect is subject to the rules of the World Trade Organization (WTO). It has been argued that the WTO can constrain this extraterritorial effect primarily through the enforcement of its rules in the dispute settlement system. However, scholars have argued that WTO rules can in fact shield the extraterritorial effect against retaliation and cannot easily declare extraterritorial measures as incompliant if they are not discriminatory. These characterizations of WTO law are arguably simplified and do not address the technicalities of WTO law. This dissertation therefore examined WTO rules on the extraterritorial effect of measures in a technical, nuanced manner by systemically analysing provisions and applications of WTO law. The focus of the analysis is on the understudied area of sanitary and phytosanitary (SPS) measures. The central research question this dissertation answers is: In what ways does WTO law constrain or enable the extraterritorial effect of domestic sanitary and phytosanitary (SPS) measures? The three sub-questions to address this question are: 1) How does the extraterritorial effect of SPS measures impact trade partners in practice?, 2) How is SPS law applied and interpreted as a ‘sword’ or ‘shield’ by the WTO Dispute Settlement Body (DSB)?, and 3) How do international regulatory standards influence the extraterritorial effect of SPS measures? It was observed that the extraterritorial effect does occur in the SPS sector, and its scope is broader than originally thought, i.e. both developed and developing countries enact measures with an extraterritorial effect. This researc

Societies worldwide are investing considerable resources into the safe development and use of nanomaterials. Although each of these protective efforts is crucial for governing the risks of nanomaterials, they are insufficient in isolation. What is missing is a more integrative governance approach that goes beyond legislation. Development of this approach must be evidence based and involve key stakeholders to ensure acceptance by end users. The challenge is to develop a framework that coordinates the variety of actors involved in nanotechnology and civil society to facilitate consideration of the complex issues that occur in this rapidly evolving research and development area. Here, we propose three sets of essential elements required to generate an effective risk governance framework for nanomaterials. (1) Advanced tools to facilitate risk-based decision making, including an assessment of the needs of users regarding risk assessment, mitigation, and transfer. (2) An integrated model of predicted human behavior and decision making concerning nanomaterial risks. (3) Legal and other (nano-specific and general) regulatory requirements to ensure compliance and to stimulate proactive approaches to safety. The implementation of such an approach should facilitate and motivate good practice for the various stakeholders to allow the safe and sustainable future development of nanotechnology.

Societies worldwide are investing considerable resources into the safe development and use of nanomaterials. Although each of these protective efforts is crucial for governing the risks of nanomaterials, they are insufficient in isolation. What is missing is a more integrative governance approach that goes beyond legislation. Development of this approach must be

Behavioural forms of regulation, e.g. nudging and debiasing, increasingly take centre stage in regulatory agendas and are making their way into consumer law. In order to warrant for an effective implementation from a legal point of view, findings from behavioural sciences need to confirm with the regulatory context conditions of the underlying legal system and need to be fit for purpose to answer questions the law requires. Behavioural studies hence need to pass a regulatory validity test before they can be operationalised in the law. Subsequently I will explain how such a regulatory validity check can work in consumer law. I will first illustrate the different context conditions of behavioural sciences and law (I.). Subsequently, I will illustrate these differences on the example of a comparison of the recently commissioned behavioural science study on the “vulnerable consumer” and the legal requirements of the “average consumer” benchmark (II.). To overcome the so illustrated shortfalls I will introduce a regulatory validity test which can be applied by behavioural and legal scientist, courts, regulators (III.). I will conclude then conclude the findings (IV.).

This contribution briefly traces the ‘behavioural turn’ in EU Consumer law. We argue that the multilevel-nature of this paradigm shift is currently underappreciating the role of national courts in giving traction to the behavioural sciences paradigm. In a jurisprudential analysis of cases applying the Unfair Commercial Practice Directive in the Netherlands in respect of the average consumer, we find that Dutch courts do not deploy behavioural insights.

According to Articles 2.2, 5.1 and 5.2 of the Agreement on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement”), Members need to base sanitary and phytosanitary measures (“SPS measures”) on scientific principles and risk assessment. These provisions have sparked analysis on issues such as how this “risk” needs to be addressed, which “science” Members need to take into account, and what the relationship is between values and science. It is commonly observed that the SPS Agreement leans towards a technical approach to the determination of risk. If socio-economic concerns were to be taken into account in the SPS Agreement, a leeway for Members to introduce protectionist policies would open up. We illustrate with the example of the ongoing citrus dispute between the European Union (EU) and South Africa that the technical approach can likewise be used to shield protectionist policies with an extraterritorial effect. The reason for this is the uncertainty with regards to how science needs to be interpreted in relation to the probability that a disease will be introduced. We conclude that the choice for technical risk does not remedy the “protectionist policy with extraterritorial effect” problem. Rather than debating the options of “socio-economic” risk and “technical” risk only, the WTO Dispute Settlement Body should use disputes such as the one on citrus to develop a more normative approach to “risk” in the SPS Agreement, indicating which kind of “probability” is normatively required to justify SPS measures.

The potential of the case on EU private law cannot be underestimated. Despite of the fact that with its answer the Court did not really get to the heart of question two, it took a remarkable stance on quite a number of heavily discussed issues in EU private law. I will first provide a short introduction to the underlying “new approach” regulation to make the reader familiar with this very special area of EU law. Subsequently, I will comment on the broader implications of the judgment. I will treat the answer of the Court not only as an answer to the special underlying Directive, but rather as a general guideline to the treatment of the underlying legal problems.

This piece assesses whether nudging techniques can be argued to be a less restrictive but equally effective way to regulate diets in EU law. It has been argued that nudging techniques, due to their freedom-preserving nature, might influence the proportionality test in such a way that authorities need to give preference to nudging techniques over content-related or information regulation. We will illustrate on the example of EU food law how behavioural sciences have first altered the EU food law’s goal from the mere provision of safety to also steering behaviour towards healthier diets. In line with this development, the regulatory toolbox advanced beyond the traditional dichotomy of content-related vs. information-related regulation, eventually adding nudging as a third way to regulate. Drawing on previous works of legal scholars we will then present the hypothesis that nudging techniques, according to their choice preserving nature, may be less restrictive but equally effective when contrasted to information-related over content-related regulation. With reference to recent CJEU case law that such a claim needs to be backed up by scientific evidence, we will evaluate several nudging studies in the area of food that test the effectiveness of this approach. We will illustrate that, while nudging indeed has a choice-preserving nature and therefore might be less restrictive, it may also be classified under certain circumstances equally effective to information-related regulation. From the evidence presented the proportionality principle may in some cases require EU policy makers to primarily use nudges instead of information-related regulation.

Current political discussions on the relationship of technical standards to the Transatlantic, Trade and Investment Partnership (TTIP) concern the question whether TTIP can provide a transatlantic level playing field for technical standards, and whether this will negatively affect technical standards in the European Union (EU) and the United States (US). This piece will instead take a different view on technical standards in TTIP. It will switch the perspective to an individual one, namely to the question who decides on standards. It follows the hypothesis that steering principles on mutual recognition and harmonization of technical standards largely depend on who will be given the power to decide on conformity and level of technical standards in the TTIP. As a basis for such an institutional analysis, this piece will evaluate the leaked documents from the TTIP negotiations. The analysis follows the framework for legal institutional analysis identified in the introduction to this book. The introduction highlights that, as legal applications of regime theory and organisation theory, the acts of autonomy and power by institutions are the real subjects of legal investigation of institutionalisation. This largely reflects an approach to institutionalism voiced by Neil Komesar in the 1990ies. As a result, I will identify and map the respective decision-makers and will illustrate the potential impact of these choices on technical standard-setting.

The use of psychological findings in EU internal market regulation has gained interest, particularly in the area of unfair commercial practices. This study investigates consumer perceptions of bonus packs containing an oversized indication of the “extra” volume in the package, such as in the Mars case. The Mars case serves as a standard reference in EU unfair commercial practices law which is used as a benchmark to determine the “average consumer.” Our study demonstrates how an experiment can be set up to provide empirically based insights on whether a practice is “deceptive.” Results of our experiment show that consumers overestimate the extra volume when confronted with an oversized indication compared to control conditions, which is first empirical evidence that this practice is potentially deceptive.