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EU biotechnology law

Nationalisation of the GMO cultivation decision: “The buck has been passed to the Member States.”

In July 2010 the EU Commission introduced new guidelines for national coexistence measures. On this basis, the Member States are to have the possibility themselves to restrict or ban the cultivation of genetically modified crops to prevent adventitious presence of GM material in other products. In the future such national bans will be made simpler and more comprehensive through a change in the EU release directives. GMO Safety has spoken with Prof. Dr. Hans-Georg Dederer from the Faculty of Law at the University of Passau about the room for manoeuvre of the Member States.

Prof. Dr. Hans-Georg Dederer (Faculty of Law at the University of Passau) has presented a report on ‘GMO-free zones and socio-economic criteria for the approval of GMOs’ for the Federal Ministry for Education and Research.

National cultivation bans: On what justification?

To overcome the political blockade of the approval of genetically modified crops in the EU, the EU Commission wants to give the Member States the right to decide on a national level about the cultivation of GM crops. Until now it has not been clear how national bans could be legally justified. Concerns about the scientific safety assessment do not come into consideration since all aspects of environmental and health protection of a GM crops have been tested in the framework of the EU-wide approval procedure. “Cultural” or “socio-economic” criteria are often named as possible grounds for a national cultivation ban.

GMO Safety: The Commission, with the nationalisation of the GMO cultivation decision, wants to give the Member States more freedom. How is that possible?

Hans-Georg Dederer: The Commission is pursuing two tracks. On the one hand, as from now, it is simply relaxing its guidelines on coexistence, which until now only allowed GMO-free zones in very exceptional cases. On the other, the Commission wants to introduce a new exemption clause in the release directive 2001/18/EG that should offer the Member States maximum flexibility and almost unlimited scope for establishing GMO-free zones

GMO Safety: Isn’t the Commission contradicting itself with relaxing the coexistence guidelines? Elsewhere it defines that “Coexistence refers to the ability of farmers to make a practical choice between conventional, organic and GM-crop production”. With the cultivation ban they no longer have any choice.

Hans-Georg Dederer: Indeed, the Commission has changed the coexistence guidelines in a decisive point in that it is ultimately abandoning the principle of a balance between the three production systems – genetically modified, conventional and organic. The balance is tipped at the expense of GMO cultivation. Whether this reflects the actual meaning of “coexistence” is questionable. However, with its guidelines the Commission is only giving legally non-binding advice on what coexistence in the sense of the release directive may look like. If it came to a dispute, the European Court of Justice (ECJ) would have the last word on whether it really is a matter of coexistence in terms of Directive 2001/18/EG.

GMO Safety: If the Commission’s second track was followed, then in future the cultivation of GMOs could be simple prohibited, independently of the coexistence guidelines. Even if this is not explicitly mentioned in the Commission’s proposal, socio-economic arguments will often be given as the justification. What are these?

Hans-Georg Dederer: Besides the coexistence arguments – such as freedom of choice for the farmers – these are for instance protection of small-scale agriculture or certain aspects of consumer protection, where the latter for example could include consideration of ethical or religious concern about GMOs.

GMO Safety: But it appears that these arguments also face limits, since in the press release to its new proposal the Commission writes explicitly “The Member States will also have to respect the general principles of the Treaties and the Single Market, and be consistent with the international obligations of the EU”. What are these general principles?

Hans-Georg Dederer: The Commission cannot, of course, release the Member States from their obligations under EU and international law, be that the free movement of goods, fundamental rights or world trade laws. Here various questions arise: if a State for instance creates a GMO-free zone, then, for example, GM-seeds will no longer be required and will therefore not enter the market. The ECJ has taken sales-inhibiting bans or use restrictions as clear infringements of the free movement of goods.

GMO Safety: Cannot such a restriction be justified?

Hans-Georg Dederer: There is doubt as environmental and health protection is already comprehensively taken into consideration in the GMO approval and the existing protective clauses. These cannot be used as legal justifications. Only certain other reasons are left, and the question is whether these are valid. The ECJ has always stressed that purely economic reasons do not justify an intervention in the free movement of goods, because these are typically protectionist. On the face of it, protecting small-sized farms is a purely economic reason which will certainly not bear up.

GMO Safety: What the Commission also said was that with its proposal it wanted to take into account the “concerns” of society regarding GMOs. In what way can that then be justified?

Hans-Georg Dederer: I cannot imagine that the ECJ would allow such mere “concerns” without further substantiation. And they can only be substantiated primarily just on health or environmental grounds, which however have already been clarified during the approval process for the GMO. Naturally social concerns can also be considered. However, there has been a ruling by the ECJ – on biotechnology – in which it did not accept ethical or religious arguments for a national GM-seed ban from a Member State without more detailed sustainable reasons. Similarly, the ECJ does not accept the argument that it would cause unrest within the population. That should not prevent a Member State from systematically implementing EU law. On that, the ECJ is quite clear.

GMO Safety: From a legal point of view, are there any reasons that can justify a cultivation ban?

Hans-Georg Dederer: In the end it is not just the reasons but also their weight that matters. Possible reasons could be taken as legitimate, but the question is, are they sufficient to justify the degree of restriction? That means that attention also has to be paid to the commensurability. This raises the question of whether there can be a fair balance between the opposing positions. Also, the degree to which it can be assumed that certain socio-economic reasons – provided that they are legal in principle – are not important enough to justify the restrictions. There are also other options to control GMOs that take due account of these reasons. Therefore, an undifferentiated GMO cultivation ban will fail.

GMO Safety: What other options to control GMOs do you mean?

Hans-Georg Dederer: The means to meet the coexistence or acceptance problem have to be proportionate, i.e. everyone has to accept certain restrictions, for example for the sake of coexistence: those who do not want biotechnology must tolerate minor GMO traces, and the GMO farmer must follow “best practices” – such as border rows or isolation distances – that all cost money. Such reciprocal restrictions create commensurability, and the ECJ will pay attention to whether a settlement is reached that is just and considerate for all sides. With respect to acceptance, rather than a ban, GM labelling or tolerance levels as well as measures for compliance could be thought of.

GMO Safety: What are the positions and rights that – so to speak – have to be balanced on the “other” side?

Hans-Georg Dederer: There again the free movement of goods plays a role, which is also a personal freedom on which an individual can rely. On top of that comes not only the fundamental rights on a national level, such as the professional freedom and property freedom of farmers and seed producers, but also the freedom of consumers to be able to decide for themselves for or against specific products.

GMO Safety: What will happen now when a country declares itself to be a GMO-free zone?

Hans-Georg Dederer: That will very probably run contrary to the free movement of goods, which is laid down in the Treaty on the Functioning of the EU (TFEU), but also to fundamental and international trade laws. For example, if it came to a violation of the TFEU, then the Commission itself would have to introduce treaty violation proceedings. The other possibility is that at the national level petitioners are found who are ready to have the corresponding legal position checked in the courts of the respective Member State. The courts, in turn, could present the questions concerning conformity with EU law to the ECJ. With the planned new regulations, the buck is actually passed to the Member States, as the Commission is leaving to them the definition of the bans and restrictions of GMOs – and with it the full risk of not complying with EU law.

GMO Safety: In what cases can Member State then establish GMO-free zones at all?

Hans-Georg Dederer: One reason could be seed production, because there the “purity” has to be maintained in any case. In this area suitable practices are already in place, such as continuous seed production areas where certain crops that could cross-pollinate the seed may not be cultivated. Therefore it can be said that designated GMO-free zones could be envisioned to protect the production of conventional or organic seed – but only always for specific GMOs! Establishing continuous seed production areas does not mean that all GMO are banned there, only those that could cross-pollinate the seed. However, I regard zones as legally impossible where the cultivation of any GMO is prohibited and that possibly extend to the whole country. That is neither coexistence-conform nor legally tenable, in any case not under the points of view of fundamental rights and freedoms or world trade laws, because total freedom from GMOs is not in line with the commensurability principle.

GMO Safety: So it could be that the actual legal margin of the Member States for prohibiting cultivation only will be defined in a few years after corresponding decisions of the ECJ?

Hans-Georg Dederer: Naturally that depends on how far-reaching the ECJ decides. The ECJ tends not so much towards decisions of general principles, as for example the Federal Constitutional Court, but keeps more to the case or to the questions presented to it by the national courts. It can be assumed that possibly only after many years and several proceedings a picture emerges of what the ECJ considers legitimate concerning GMO-free zones and what not.

GMO Safety: But essentially your assessment is that total bans that are not science-based but founded on socio-economic or cultural reasons – as they are currently discussed – will not be legally tenable?

Hans-Georg Dederer: Exactly, that would be my opinion as a lawyer. The lines are drawn by fundamental rights and freedoms as well as by world trade laws – which all boil down to a testing of commensurability. According to this, even by first appearances, one-sided “zero-tolerance solutions” are not proportionate.

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