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European Commission

Genetic engineering: Criteria for national cultivation bans remain unclear

Last Friday, the EU member states consulted on a first Commission proposal concerning possible justifications for national bans on cultivating GM crops. The Commission’s proposal makes provision for religious and philosophical considerations, as well as the protection of certain regionally typical forms of agriculture. However, most of the member states reject the Commission’s proposal, believing it to be incompatible with the rules of the free single market and with the regulations of the World Trade Organization (WTO).

National bans: The possible socio-economic justifications suggested by the European Commission include the protection of natural areas, the conservation of regional forms of agriculture, and religious and ethical considerations.
Photo: Andreas Hermsdorf / pixelio.de

The Commission had proposed in July 2010 that the member states should decide for themselves in future whether or not to allow the cultivation of GM crops on their territory. However, the EU-wide approval of GMOs and the trade in GMO products will not be affected. Concerns about the scientific risk assessment are not an issue, because all environmental and health aspects of GM plants are still assessed as part of the EU-wide approval process.

At the time, the member states called on the Commission to identify possible socio-economic justifications for such national cultivation bans. According to a working paper presented to the member states in February by the Directorate General for Health and Consumers, the Commission’s proposal contains seven categories of justification:

  • Public morals (including religious, philosophical and ethical considerations)
  • Maintaining freedom of choice for producers and consumers to produce/buy GMO-free products
  • Public order
  • Town and countryside planning
  • Maintaining the diversity of agricultural production conditions in particular regions
  • Cultural policy aims (e.g. heritage in terms of traditional agriculture, special product characteristics based on regional production processes, maintaining cultural and social traditions, areas of natural interest)
  • Socio-political aims (rural developments to maintain current employment levels)

Most member states were sceptical, according to the Dow Jones News. In particular, they criticise the fact that the Commission’s proposal does not address possible conflicts with the rules of the World Trade Organization (WTO). National cultivation bans could also restrict the European single market and the free movement of goods, which would mean that they could contravene the EU treaties. Two expert reports by the Legal Services of the Council and the Commission evidently come to a different conclusion regarding this issue.

According to the Dow Jones News, the Commission cited the fact that religious and ethical justifications for a ban on cultivation would have to be legally watertight, citing relevant judgements by the European Court of Justice (ECJ). The Commission also said that there were relevant ECJ judgements on exceptions to the single market legislation.

During the consultations, some member states expressed a concern that justifications like ‘maintaining public order’ might actually provoke protests by opponents of genetic engineering as a way of deliberately trying to give governments reasons to impose a ban.

The member states are now requested to submit their own verifiable, clear legal justifications for national bans. The problem is still how to resolve the conflict between ‘soft’ reasons for bans and the principles enshrined in the international treaties. In the past, the ECJ has regarded sales-restricting bans or restrictions on usage as inadmissible interference in the free movement of goods. Neither can the Commission release the member states from their European and international obligations regarding the free movement of goods, basic rights and international trade law.

A majority of EU member states evidently rejects the current proposals to allow national cultivation bans for socio-economic reasons. And so far, there is no sign of a politically and legally viable way of achieving them.

Instead, the member states could attempt to push through cultivation bans or restrictions with more stringent coexistence regulations. The Commission also published new coexistence guidelines in July 2010. According to these, the member states can ban the cultivation of GM crops over large areas if other measures to protect conventional or organic farming are not suitable. Here too, the legal situation could be uncertain. Legal experts like Prof. Georg Dederer from the Law Department at the University of Passau criticise the fact that the new EU coexistence guidelines abandon the principle of balance between the three production methods – genetic engineering, conventional and organic. They claim that the balance would be clearly weighted against GMO farming. In the event of a dispute, the final decision as to whether a cultivation ban on GM crops was in fact an appropriate and necessary measure to secure coexistence would lie once again with the European Court of Justice (ECJ).