The EU regulation of nanomaterials - Smoother or harder: The precautionary tool chest as the basis for better regulating nanomaterials

The EU regulatory framework on nanomaterials falls mainly within the shared competence of the EU and of its member states. This means that the sources of the regu- lation of nanomaterials are found primarily in the law promulgated in Brussels,. The EU regulatory toolbox in- cludes directives and regulations which are binding on member states, as well as the so-called “soft law” instruments (not binding instruments) such as recommendations and communications. The European Commission (EC) and its agencies and research centers play a central, propulsive role in the regulatory process. Our discussion of the EU toolbox on nanomaterials does not leave us with a bright picture. Risks of nanomaterials are not taken into account adequately by the European legislator. Tools from all drawers are missing. This is especially true as far as risk mitigation measures are concerned. Also, the EU attitude toward knowledge does not fit with the precautionary stance: lack of information is often used as an excuse not to act (paralysis by analysis, supra). This is all the more questioning since the Commission explicitly acknowledged application of the precautionary principle to nanomaterials in 2008, and it also made clear in 2012 that knowledge gaps needed to be addressed.