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C-769/22 Commission v Hungary marks the remarkable ascent of the European society discourse. What until very recently was a mere political slogan and academic postulate has now been presented as hard law (see paras 495 and 554 of the judgment). Over the past years, the notion of European society has spread quickly from the pages of academic journals to the offices of the European Commission’s Legal Service at Rue de la Loi in Brussels and now, too, to the Kirchberg plateau. The transfer of ideas from an academic to an institutional context is a common process but also a deeply political one. It matters what ideas are adopted, whose ideas are heard, and to what ends they are deployed.

The academic project of European society contains a variety of approaches, many of which adopt a realist perspective to the study of EU law. The institutional adaptation of the European society discourse, however, draws on the work of several idealist scholars who reconceptualise integration through law as a process of society-construction. In this vision, the text of Article 2 TEU postulates the existence of a European society as a collective singular to which the foundational values in Article 2 TEU are attributed and from which their authority derives. It presents the Court of Justice as speaking in the name of a European society, thereby transforming the social fabric in Europe, and even reconstituting it in a more emancipatory vein.

A closer look, however, reveals that there is little transformative or emancipatory potential in the Court’s Article 2 TEU case law or its invocation of European society. Beneath the rhetoric of transformation, the institutional adaptation of the society discourse is above all conservative in nature, seeking to protect the authority of the EU and its legal order against detracting Member States. The hope that the Court will deploy Article 2 TEU to pursue a transformative agenda is unfounded (as is the fear that the Article 2 TEU case law is too radical). Rather, the notion of European society is instrumental in legitimising the EU’s legal-political status quo.

European Society Between the Real and the Ideal

The rise of the European society discourse is the latest fashion in EU legal academia. The concept is now regularly found in journal articles, books and workshops (it has even become the subject of a Verfassungblog symposium, I hasten to add). But that does not mean European society denotes a uniform or shared meaning. In fact, under the umbrella of European society, one finds completely different practices to the study of EU law. Using a broad brush, one can distinguish between a more realist approach (found in the work of Loïc Azoulai and others) and an idealist one (initiated by Armin von Bogdandy). Both talk about European society, but each means a very different thing.

The realist take on European society is informed by law in context approach as well as the recent proliferation of empirical legal studies in EU law. It studies the law not (just) as a system of norms, but (also) as a social phenomenon and practice. This approach takes as its starting point that the EU and its law are insufficiently attuned to (or even disconnected from) the social. The appeal to society forms an attempt to bring EU law’s reality deficit into focus and draw out its normative consequences. From this perspective, EU law lacks the concepts and tools to accurately capture lived experiences or translate social conflicts into a legal form. Hence, realists study colonial legacies, marginalised groups, and relations of domination and exploitation in contemporary Europe. While these studies might attempt to reconnect EU law and society, they are just as likely to point to the limits of the law as an instrument of social change.

The idealists, in contrast, seek to doctrinally reconstruct EU law in light of Article 2 TEU. Its starting point is the notion of society as referenced in the text of Article 2 TEU and the value case law of the Court of Justice. The focus is therefore on studying legal text and developing novel doctrinal arguments. For example, its proponents conceptualise the common values as the EU’s constitutional core and reconstruct primary law as a pyramid with Article 2 TEU at the top. From this perspective, the EU’s common values offer a language in which social conflicts should be articulated (thereby assuming that social reality can and must conform to the language of EU law). This approach exhibits great trust in the common values as tools of transformative change, which are presented as an instrument to solve the EU’s democratic shortcomings, create a more substantial EU citizenship, and enhance solidarity with migrants and refugees.

While the realists focus on the social, the idealists prioritise Article 2 TEU. From an institutional perspective, this difference matters. The realist approach is contextual, critical, and, hence, not very practical for institutional purposes. The idealist approach, in contrast, can be easily operationalised, providing arguments that allow institutional actors to mobilise the common values. But it is precisely the proximity to power that undermines the transformative potential of the idealists’ agenda.

Academic Allies and the Legitimation of EU Law

Not all ideas are created equally. This is the key insight of the archival and socio-historical research on the historical formation of EU law. This body of work maps how institutional actors mobilised academic allies to legitimise their constitutional vision of EU law and establish this vision as the common-sense understanding of the Treaties. As such, these studies convincingly show how legal knowledge is not neutral, but inevitably part of discursive struggles about the direction and future of the integration process. In these struggles, not only the quality of the idea matters, but also the social resources that can be mobilised to support one’s argument.

Exactly how the notion of European society circulated among academic and institutional circles is for future historians and sociologist to discover, but there is no doubt that Armin von Bogdandy’s The Emergence of European Society through Public Law plays a key role. This book forms the most elaborate effort to reconstruct EU law in light of the concept of European society to date. Moreover, as a Director of the Max Planck Institute in Heidelberg, von Bogdandy has both the network and the financial means to promote his society frame as the new ‘common sense’ of the EU legal discipline (see e.g. here, here and here). This might help to explain why his arguments are picked up by the lawyers in the Commission, Advocate General Ćapeta, and the plenary of the Court of Justice. These institutions seem quite receptive to the idea that a European society is constituted by the very laws that those who work in these institutions uphold and create.

The attractiveness of the society frame is, no doubt, also that it continues a long tradition of grand narratives that appeal to the inherent ideals of the Treaties to justify the authority of EU law. For Judge Pierre Pescatore, the Treaties contained the inherent telos of a common market and a political union; for Commission President Walter Hallstein, the Treaties, at their core, formed a system that would regulate inter-State relations on the European continent through law rather than force; for the editors of the Integration Through Law volumes, the Treaties possessed an inner ethos that expressed a new conception of postnational citizenship. Each of these influential accounts of European legal integration explains the authority of the law in a circular and self-referential manner: the authority of EU law derives from the market, system, or postnational community as constituted by EU law.

Such self-referential narratives have a legitimating function. They ground the “authority of the law on law itself” and anchor “the legitimacy of the EU in the authority of the law”, as Mendes accurately put it. The European society frame performs the same function. It derives the authority of EU law from an abstract and idealised notion of European society, while simultaneously positing that this society is constituted through Article 2 TEU and the Court’s value-based case law. This discourse thereby provides a self-sustaining justification for the authority of EU law that obfuscates the question how EU law is democratically authorised. It is precisely what makes this notion so attractive: a society has no will and does not speak with a single voice, not even metaphorically (in contrast to a people, nation, or State). From this perspective, the democracy of European society inevitable operates via “compromise hammered out within its institutions.”

The ideal of European society thus coincides with the EU and its institutional machinery in Brussels and Luxembourg. It offers a new vocabulary to describe the EU’s legal-institutional framework as it already is. Von Bogdandy is explicit in this regard, stating that his account presumes that “legal structures express social structures”. This means that if the EU treaties say there is a society, such a society exists; or if the Treaties state that the EU is democratic, it follows that the EU is, in fact, a democracy. If one takes this line of reasoning to its logical conclusion even the trilogue process appears as a “significant democratic innovation”.

The starting premise therefore deprives von Bogdandy’s approach to European society of any transformative potential. This is why a realist approach to European society rejects this premise. Instead, it draws out the contrast between a highly idealistic values discourse (legal structures) and the far more gloomy lived reality of political marginalisation, economic inequality, and societal alienation on the European continent (social structures). The great risk of speculating about European society in the abstract is that it all too easily obscures the actual social circumstances which EU law produces.

Conservative, Not Transformative

The paradox of the idealist approach to European society is that it is inherently conservative. While it proposes novel concepts and creative reinterpretations, these serve highly traditional ends, namely, to protect the authority of EU law from Member States that challenge the EU. The mobilisation of Article 2 TEU is primarily motivated by the goal to intervene in backsliding Member States (but, as we saw in the Maltese citizenship case, is not limited to those States). It would be a mistake to consider such an expansion of EU powers as transformative. The Court of Justice’s foundational case law has always been geared towards enabling the EU’s exercise of public authority, rather than constraining the EU institutions. If anything, the Court’s Article 2 TEU case law confirms the persistence of this enabling-logic, which I have described elsewhere as “a structural bias towards the very structure of EU legal order”.

Illustrative is the argument that the Court’s President Lenaerts and Gutiérrez-Fons made in response to my claim, namely, that the EU’s constitution is not an “empty shell” because the values “permeate throughout the constitutional structure of the EU”. In their understanding, the foundational values are expressed through the EU’s legal framework, rather than forming a normative benchmark against which that framework is assessed. The way in which the common values are conceptualised as legal norms thus risks precluding their application vis-à-vis acts of the EU institutions or the laws they adopt.

Of course, the outcome in C-769/22 Commission v Hungary is commendable: defending the rights of the LGBTQI community against discriminatory and degrading treatment by the Hungarian State. But this is a single judgment, against a government that already was the “pariah” of the EU family, and in which sixteen Member State governments endorsed the enforcement of the EU’s foundational values. In these circumstances, it is far too optimistic to contemplate “a new constitutional horizon”. This is not the beginning of a novel type of constitutional jurisprudence that will render the EU and its Member States more responsive to democratic demands, solidary between rich and poor, or respectful of the human dignity of minorities and migrants. Rather we are witnessing the mobilisation of new discursive means (European society) to defend very traditional ends (the constitutional orthodoxy).

The post The Politics of European Society appeared first on Verfassungsblog.

In its recent judgment No. 63/2026, the Italian Constitutional Court (ItCC) acknowledged the existence of a European society grounded on the values enshrined in Article 2 TEU. The judgment appears to be the first explicit reference by a constitutional court of an EU Member State to the emergence of a European society. Importantly, the decision was already taken on 11 March 2026, but only published on 30 April 2026, after the CJEU delivered its judgment on Commission v. Hungary on 21 April 2026. Hence, the ItCC could not rely on Commission v. Hungary. Read together, the two judgments point to a constitutional convergence between national constitutional courts and the CJEU around Article 2 TEU as the basis of European society.

Judgment No. 63/2026 concerned the constitutionality of recent legislation restricting access to Italian citizenship for descendants of Italians abroad. The passage on European society is an obiter dictum. Yet, that does not undermine its relevance. In fact, I argue that it is precisely because the Court was not required to rely on the concept to decide the case that this explicit invocation is noteworthy. In the following, I first set out the legislative background and the ItCC’s decision. I then turn to the obiter dictum on European society, arguing that its real significance lies in the question it raises about belonging: Who belongs to European society? Finally, I briefly draw some conclusions.

Italian Legislation on Citizenship

The applicants, Venezuelan citizens descending from an Italian who had emigrated to Venezuela in the 19^th century, claimed recognition of their Italian citizenship before the Civil Court in Turin. However, following the amendment of the Italian citizenship legislation (Law No. 91/1992) by Decree-Law No. 36/2025 (DL 36/25, converted with modifications into Law No. 74/2025), they were no longer entitled to such recognition.

Italian citizenship has traditionally been governed by ius sanguinis: as a general rule, citizenship is transmitted through filiation by either parent. Other routes to citizenship, such as naturalization or acquisition by another provision of law (e.g. marriage), play a more limited role (see here). Until the 2025 reform, Italian legislation set no further requirements for the transmission of citizenship via filiation. In practice, it allowed unlimited citizenship transmission.

DL 36/25, as converted into L 74/25, introduced significant limitations. According to this reform, a person born abroad – even before the entry into force of such legislation – who holds another citizenship is deemed never to have acquired Italian citizenship, unless one of the following conditions is satisfied: that person has submitted (a) an administrative or (b) a judicial application to the competent authority no later than 11:59 p.m., 27 March 2025, Rome time; (c) a first- or second-degree ascendant holds, or held at the time of death, exclusively Italian citizenship; (d) a parent or adoptive parent has been a resident of Italy for at least two consecutive years following the acquisition of Italian citizenship and prior to the date of birth or adoption of the child (for a critical analysis, see here, here, and here).

This reform severely limits the possibility for Italian descendants to be recognized for their citizenship status, especially in cases a) and b). Most notably, it does so retrospectively. DL 36/25 was published on 28 March 2025, yet it required that the administrative or judicial application for Italian citizenship must be initiated by 27 March 2025. Against this background, the Turin Court asked the ItCC to rule on the compatibility of the 2025 reform with several constitutional provisions, also in relation to European and international law, invoking the principles of equality, reasonableness, and legal certainty.

The ItCC’s Decision

The ItCC declared the questions raised by the Turin judge partly inadmissible and partly unfounded. In substance, it held that DL 36/2025 fully complies with the citizenship model rooted in the Italian Constitution. According to the ItCC, such model conceives of the “people as a community bound by a genuine link among its members” – in terms of “solidarity, mutual rights and duties,  commitment to the progress of society, and shared destinies” (Considerato in diritto, § 8.2.1). The previous legislation departed from that model, as it allowed those who had no genuine link with the Italian community to participate in political decisions concerning that same community. This reasoning bears directly on the position of Italian ‘virtual’ citizens abroad, namely those – between 60 and 80 million people – who, under the previous legislation, could potentially be recognized as citizens by virtue of descent, even in the absence of any genuine link with Italy.

The ItCC found that DL 36/25 left unaffected both the already established citizenship status and proceedings initiated by 27 March 2025. It characterized the reform as corrective in nature and foreseeable while also considering retrospective application necessary to fulfil its purpose (see critically here). As a consequence, the ItCC concluded that the challenged provisions of DL 36/25 balanced in a not unreasonable way the legitimate expectations of the concerned individuals and “the constitutional principle of effectiveness of citizenship” (Cons. dir., § 9.2.4).

The Obiter Dictum on European Society

Why is this judgment relevant for the debate on European society? When assessing the compliance of DL 36/25 with EU law, the ItCC affirmed:

“There must be a coherent relationship between the constitutional framework of national citizenship and the regime of European citizenship … The constitutional principles that contribute to the creation of a genuine link between the citizen and the national community largely overlap with, and in any event are always consistent with, the values listed in Article 2 TEU, which form the basis of ‘European society’. It is precisely this homogeneity of values that allows the same individual to feel both Italian and European at the same time, and to have a dual affiliation: to the Italian people and to ‘European society’.” (Cons. dir., § 8.2.5).

This passage is an obiter dictum: it is neither necessary nor relevant to the ItCC decision of the case. In other words, the ItCC did not need to go in this direction. Yet, it is precisely because the passage is not necessary to the outcome that it is revealing. The ItCC deliberately chose to refer to a European society grounded on Article 2 TEU.

Remarkably, the ItCC places European society alongside the concept of (Italian) people. It does so by moving from the need for coherence between national citizenship and European citizenship, both grounded in homogeneous values, to develop its reasoning on the affiliation of the same individual to both the Italian people and European society. In other words, national citizenship reflects belonging to the Italian people, whereas European citizenship reflects belonging to European society. In this construction, Member State citizenship functions as the legal gateway to European society. However, this reading also reveals a possible limitation. If European society is equated with the aggregate of EU citizens, the concept risks becoming too narrow. It leaves aside, for example, third-country nationals who live on EU territory, participate in its social and legal space, and may have developed a qualified link with it.

Belonging to the Italian People and to European Society

The ItCC’s decision on European society resonates with the CJEU’s wording in Commission v. Hungary. Although the two cases arise in different contexts, they share a common constitutional vocabulary. The CJEU affirmed that values enshrined in Article 2 TEU “define the very identity of the Union as a common legal order … of a society” (§§ 549 and 551; for comments, see here, here, and here). For its part, the ItCC affirmed that the democratic order is based “on a ‘singular plural’, on a ‘collective self’,” namely the people, which “presupposes a link with a territory … and the sharing of certain material principles that create a sense of common belonging, of collective identity” (Cons. dir., § 8.2.2). And such constitutional principles are, according to the ItCC, homogeneous with the values enshrined in Article 2 TEU, allowing the individual to be affiliated both to a national people and to European society. The two judgments nonetheless differ in the collective singular they refer to: the Italian people in the ItCC’s decision; the European society in Commission v. Hungary.

The ItCC stresses the substantive dimension underlying citizenship: not merely a formal status, but the expression of a genuine link between the individual and the community. The ItCC places its reasoning alongside that of Commission v Malta (see here and here). The latter case relied on different premises, as it concerned transactional naturalization granted by the Maltese government in exchange for predetermined payments or investments. Yet, the ItCC deduced a common thread between that case and its decision (see critically here), insofar as citizenship cannot be reduced to a purely formal status detached from an effective relationship between the individual and the State.

The genuine link argument thus shows what the Italian judgment, as well as its obiter dictum, are actually about belonging to both a national community (the people) and to a European society. And the understanding of who belongs is crucial for the understanding of who is part of European society – European citizens, third-country nationals living in the EU and participating in its society, or even those who have not developed any genuine link with it.

Conclusion

Armin von Bogdandy argued that by embracing the concept of a European society, the ItCC does not merely acknowledge a trend that is already underway, but actively drives it forward, contributing to the development of European constitutional law. At this stage, however, this statement might be too optimistic. It remains to be seen whether Judgment No. 63/2026 will have a lasting impact or whether its reference to European society will remain isolated.

Commission v. Hungary currently provides a stronger basis for the consolidation of the concept of European society. There, the reference to a society grounded in Article 2 TEU is connected to the judicial enforceability of Union values. By contrast, the ItCC’s reference is more indirect: European society is invoked to argue for the coherence between the constitutional framework of national citizenship and the regime of EU citizenship.

However, the ItCC’s obiter dictum is worth taking seriously. It shows a convergence in the constitutional vocabulary used by the CJEU and national constitutional courts. It also brings to the surface a question that remains unresolved: Who belongs to European society? Is it limited to EU citizens, or does it go beyond, e.g., including those who reside in the EU and have developed a qualified link with it? The ItCC seems to point in the first direction. The judgment is therefore significant because it exposes the limits of answering the question of belonging through citizenship alone.

I am sincerely grateful to Armin von Bogdandy, Paolo Mazzotti, Jasper Siegert, and Silvia Steininger for their helpful comments. The usual disclaimer applies.

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On 17 June 2026, the European Parliament adopted new rules on plants obtained by certain new genomic techniques (NGTs), including the famous genetic scissors CRISPR-Cas9, and the food and feed made from these plants. This is the most radical change in the regulation of genetically modified organisms (GMOs) in the EU in the last three decades, starting in 1988 when the European Commission tabled its first proposal to regulate GMOs. Depending on the number and type of modifications of a plant’s genome, the new rules exempt certain NGT plants and their products from investment-choking GMO rules under Directive 2001/18 (NGT1) and lower the risk assessment requirements for certain other NGT plants (NGT2).

In the ongoing geopolitical biotech brawl, it is not just EU policymakers and the legislature who must catch up with technological progress by adopting new rules, but also European consumers who now need to adjust their risk perception of genetic modification or will be nudged to do so. Certain NGOs, as well as the organic sector opposed to GMOs, may now consider questioning the new legislation or any delegated acts adopted under it, particularly as regards whether a high level of protection of human health and the environment has been maintained, where the GMO requirements on risk assessment, traceability and post-market monitoring are effectively removed for plants and products developed using the new techniques. However, the path for this change has been paved long before, with decades of longitudinal data and experience gained in environmental and human health risk assessments concerning conventional genetic modification, and no new hazards have been identified.

Biases Facing Sustainability Benefits

In fact, not only has scientific evidence overwhelmingly shown that NGTs have been regulated more heavily under the existing GMO rules than their scientific risk profiles justified, but research has also shown how the regulation is biased against new techniques. On the latter point, it is difficult to explain in any other way why conventional plant breeding or conventional techniques of genetic modification, such as ionising radiation, have not been subject to the same authorisation requirements as NGTs, despite not being technologically superior in terms of safety. One may dispute how the EU came to stretch the doctrinal logic of applying the precautionary principle to the point of undervaluing new information on evolving technologies, idealising full scientific certainty and ignoring trade-offs and foregone benefits. All of this put the question of GMOs out of the European consumers’ minds. As the Commission’s Food Safety Eurobarometer found out, very few consumers in the EU are actually afraid of GMOs – an outcome not surprising, given that European consumers almost never encounter authorised GMO products on their plates. Be it the forever-lingering trauma of a series of food crises in the 1990s or the expert confirmation bias following GMO scientific controversies in the public eye, the tide has gradually turned: policymakers have changed narratives and started to frame questions about the consumer acceptability of NGTs in different terms, namely, in terms of benefits for sustainability.

A Conservative Change

EU policymakers have shown receptiveness to the warning that falling behind in the platformisation of gene-editing technology in the age of AI would cost the EU its future direly. At the point, when the law is too slow to respond to technological change, the line between law and technology may snap, and a technological disruption may bring about a change in legal path dependencies. However, only to a degree. Following the 2021 Commission’s study on NGTs, the Commission’s proposal went head-to-head with the political resistance to technological change brought by genome editing. In response, the Commission’s proposal was rather conservative: after all, authorisation will be avoided only if the NGT1 plant is altered by no more than 20 base pairs and does not include the trait of pesticide resistance or the production of a known insecticidal substance. In practice, for example, whenever genetic engineers insert or substitute nucleotide bases of DNA, which form complementary pairs (adenine (A), cytosine (C), guanine (G), thymine (T), and uracil (U)) at no more than three gene modification sites of a gene sequence that encodes a protein, they act like conventional breeders and escape authorisation.

Additionally, other techniques are considered equivalent to conventional breeding, such as inserting contiguous DNA from the breeder’s gene pool. It is yet unclear whether genetic engineers could produce one plant in this way, which would be considered an NGT1 type, and then modify the plant a second time and categorise the new plant again as an NGT1 type. The Commission is empowered to increase or decrease the maximum allowed number and the types of genetic modifications based on new scientific evidence, but the distinctions already rest on a thin scientific basis. The Commission can also adopt delegated acts to remove references to prohibited traits for the NGT1 type or to add new traits to the list.

For some, the extent to which NGTs may be used to modify plants without undergoing authorisation is perceived as too risky; for others, the extent is too limited to attract meaningful research and investment.

Changing Risk Perception Under Framing Forces

Consumer research and some limited experiments with citizen deliberation have demonstrated that even if the lowering of a level of protection is only perceived, consumers consider at least three ethical imperatives shaping their risk acceptance: the imperative that the freedom of choice is not compromised, that life itself becomes not one’s property and that benefits are not only mentioned but rightly communicated and seen. These three imperatives have translated largely into technical debates in the trilogue.

The first debate concerned traceability and labelling. In the citizen jury on NGTs convened as an experiment by researchers from the University of Bayreuth in 2024, labelling was the most divisive issue among participants and provoked deep ethical resentment. In the end, a consensus was reached on a policy recommendation to list NGTs separately from GMOs on ingredient lists. However, with NGTs, the ethical dilemma and consumer preferences become a technical problem. The regulatory bias created not only tougher regulations but also resulted in NGTs falling into a de facto regulatory limbo – a factual impossibility of receiving authorisation. The GMO rules were drafted for the reality of transgenic GMOs with foreign DNA and prescribe detection, identification, and quantification (DIQ) methods for the genetic change along the authorisation dossier for placing on the market and deliberate release. For NGTs, the most challenging, if not impossible, is the identification method attributing a genomic change to a specific modification event, i.e., distinguishing between spontaneous mutation and deliberate technical intervention, such as using conventional breeding techniques or CRISPR-Cas9 scissors. The adopted NGT regulation introduces an important change regarding the requirement to provide DIQ methods: it exempts NGT1 plants from this requirement, while for NGT2 plants, it allows citing technical unfeasibility to avoid submitting DIQ methods. As a result, NGT plants and their products will likely be untraceable by analytical methods, and products will not require specific labelling, since only seeds will need to be labelled as NGT. Without technically robust traceability, labelling of credence attributes will unlikely be effectively enforced, particularly in global supply chains where EU trading partners do not impose similar traceability requirements.

The consumer may ask why not invest more in developing DIQ methods and delay relaxing or eliminating the authorisation requirements until such methods are available. Why not, for example, sequence large numbers of samples from each lot of seeds sold to farmers and build a gigantic database of DNA sequences that could help determine whether a given plant has been modified using NGTs and therefore requires labelling? Apart from the uncertainty, cost and practical impossibility of such an endeavour, it may never produce scientifically relevant results. Mutations occur continuously in plant genomes, and no parent and offspring are genetically identical. Such all-encompassing traceability would also affect conventionally bred plants and those modified through conventional genetic modification techniques. The task of identifying NGT plants appears, for now, impossible to achieve, even if one would follow raw laymen’s imaginaries. Economists also suggest that if consumers were confronted with the true cost of satisfying their ethical preferences, they would often be unwilling to pay. Research further indicates that such labels may affect consumers’ purchasing decisions when their preferences are revealed through market behaviour in the short run, but that effect also depends on the design of the label. It also suggests that when products are placed on the market without distinguishable labelling, consumer acceptance is not significantly shaped by GMO origin as a credence attribute. Given these economic and scientific constraints, technological change and the corresponding adjustment in consumer behaviour appear inevitable.

Patents and Access to Benefits

As regards patenting, the adopted legislative text confirmed the possibility of seeking patents for NGT plants under the existing system of protection. That system comprises the protection of rights and exceptions therefrom (breeders’ exemption, farmers’ privilege), which are regulated at the international level (e.g., the UPOV Convention; the European Patent Convention) and at the EU level, with relevance to biotechnological inventions (Directive 98/44/EC). For example, traits or sequences produced naturally or by essentially biological means (crossing or selection) have been excluded from patentability since 2017 under the Guidelines for Examination at the European Patent Office (Part G – Chapter II-40).

Citizens have been particularly sensitive around the question of who owns the biotechnology and how the ownership will be licensed or enforced, particularly vis-à-vis small farmers and small and medium-sized enterprises (SMEs). In the Schloss Thurnau citizen jury, for example, the jury demanded a no-patent policy regarding NGTs and an open-source-like approach with utmost transparency. In the first reading, the European Parliament also introduced amendments to exclude patent protection for NGT plants. The question of patent protection became the most hotly debated issue in the legislative process, with the Council spending considerable time resolving the deadlock. The change came only with the Danish presidency, which managed to broker the deal that accepted the patentability of NGT plants as an important component for investment-inducing rules, following several assurances from the Commission. After the trilogue, the legislative text mandated the Commission to monitor the market with regard to patenting practices and their impacts, including the exclusion of SMEs. The Commission will assess the functioning of the licensing platforms, whether they provide transparency on patents and enable SMEs to license under fair and reasonable conditions. The Commission will draft a code of conduct and ensure that SMEs have access to support and guidance on plant-related patent matters. The Commission is also bound to fulfil its reporting duties by submitting a report on the implementation and impact of the NGT regulation (an obligation which the Commission did not fulfil in relation to Directive 2001/18) and a report on the functioning of the code of conduct. Although the law is unlikely to change in the future, the Commission will prospectively examine whether legislative change or soft-law clarification is needed regarding patentability criteria for inventions relating to plant genetic information, the concept of essentially biological processes, and the conditions for compulsory cross-licensing. However, limitations on any prospective change stem from the international obligations of the EU and its Member States regarding the protection of intellectual property rights.

The third debate focuses on the benefits of NGTs and their applications. A considerable number of applications are in development pipelines and promise superior crops in terms of their sustainability impacts. For example, there are cisgenic potatoes resistant to late blight and cisgenic apples resistant to scab, which result in a substantial reduction in fungicide treatments. For crops mostly cultivated outside the EU, NGTs are used to develop bananas to slow down their browning or to prevent Panama disease in rice. The data used in the impact assessment point out that European consumers are now more willing to accept the technology. Some studies have shown that if consumers are aware of the benefits of GMOs or NGTs, their willingness to buy increases. On that note, the new rules encourage voluntary labelling that emphasises the sustainability traits of such products. In the Schloss Thurnau citizen jury, it was recommended that governments strongly support projects at schools and educational institutions to educate about NGTs/GMOs. Recent research has shown that consumers are eager to learn more about NGTs in an unbiased, well-communicated way and to understand their benefits, but extrapolating sustainability consequences from labels of single traits may be difficult for consumers. Perhaps an inspiration in this regard may be found in specific provisions of other legal acts, such as the EU AI Act’s provisions on AI literacy. Biotech literacy could offer a new way of thinking about how to shape future debates over the regulation of biotechnological inventions.

Technological Promise and Inevitability

In 1992, the Bureau Européen des Unions de Consommateurs wrote to the European Commission in response to its GMO directive proposal that if it turns out that – for specific categories of products – there is no need for an extended assessment, then a more rapid procedure can be agreed on at a future date. However, before this can happen, experience with assessments needs to be gathered. That day came today. From an investment perspective, it remains to be seen whether the limit on the number of genetic modifications permitted for NGT1 plants will be sufficient to provide a meaningful incentive to invest. From a consumer perspective, NGT-derived products are expected to reach the market eventually, whether in five or fifteen years, depending on the development timelines of individual products. From a market perspective, following a two-year implementation period, greater diversification of plant varieties and products can be expected, as cultivation and placing of NGT products on the market will no longer be subject to prohibitively high regulatory costs. Technology has matured, but the risk perception that shaped a high level of protection has not kept pace with the leap it has made. Technological progress has outpaced that perception and eventually made the technology inevitable.

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