Regulating eco-innovation in the European Union

This article develops a framework to guide the EU in the choice of legal form for the regulation of eco-innovation. The framework distinguishes between uncertain and risky applications of eco-innovation. An uncertain eco-innovation, which poses an incalculable risk, is more difficult to regulate because the EU legislator needs to accumulate information in order to plug gaps in knowledge. In that context, directives are superior to regulations because they are conducive to experimentation and information accumulation. Risky eco-innovations, conversely, should be covered by regulations; otherwise, the cost of legal heterogeneity would outweigh the benefits of information accumulation. We also show that there are ways of conceptualising the choice between directives and regulations that are more productive than the sovereignty-versus-competition model that predominates in current legal thinking.