Maximum vs. Minimum Harmonization : What to Expect From the Institutional and Legal Battles in the EU on Gene Editing Technologies?

New Plant Breeding Technologies (NPBTs), including CRISPR gene editing, are being widely used and drive the development of new crops. However, these new technologies are not undisputed, creating uncertainty in how applications of these technologies for agricultural and food uses will be regulated. While in North America regulatory systems are already adapting to NPBTs, in the European Union discussions are still underway regarding how to regulate NPBTs. Information about next steps can be expected with the decision of the European Court of Justice in the summer of 2018 on a case put forward by the French Government on one form of NPBTs and whether this technology should fall under existing GMO regulations. The ruling is unlikely to solve the general problem how NPBTs should be assessed, but it will provide some insights about future directions. This paper discusses different options that are available for the EU considering the legal framework and the international environment in which the EU is embedded. Using an ex-ante regulation versus ex-post liability framework allows us to address the economic implications of different options. The results show that under current conditions, some options are more expensive than others. The least costly option, regulating new crops derived from NPBTs similar to those used in “conventional” breeding, is the outcome which is least likely. The most costly option, banning the use of NPBTs altogether, is possible from a legal point of view, but due to the decision making procedure in the EU also not very likely. The most likely solutions at EU level, due to the nature of these new technologies, will require international collaboration, in order to avoid the possibility that they result in an indirect ban of agriculture and food imports