EU Gene technology 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 plants to prevent accidental traces of GMO 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 manoeuvring room and limits for 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 plants 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-plants. 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-plant 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 one hand, as from now, it is simply relaxing its guidelines on coexistence, which until now at best 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 leeway for establishing GMO-free zones

GMO Safety: Isn’t the Commission contradicting itself with relaxing the coexistence guidelines? Elsewhere it defines that „Coexistence means that the farmers have a real choice between conventional, ecological or GM production systems“. With the cultivation ban they have 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 lines of production – gene technological, conventional and ecological. The balance has moved at the expense of GMO cultivation. Whether this now reflects the actual meaning of „coexistence“ is questionable. However, with its guidelines the Commission is only giving advice that is not legally binding on how coexistence in the sense of the release directive should look. If it came to a dispute, the European Court of Justice (ECJ) would have the last word on whether it really 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 from the coexistence guidelines. Even if this is not explicitly mentioned in the Commission’s proposal, socio-economical 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 agricultural structures 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 abide by the general principles of the treaties and the European market and comply 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 EU and international obligations, be that free-trading, basic or world trade laws. Here various questions arise for if a State for instance creates a GMO-free zone, then, for example, GM-seeds will not longer be required and will therefore not enter the market. The ECJ has taken sales-inhibiting bans on utilisation or restrictions as clear infringements of the rights to free trading.

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 a justification basis. Only certain other grounds are left, and the question is whether these are valid. The ECJ has always stressed that purely economic grounds do not justify an intervention in free trading, because these are typically protectionist. On the face of it, protecting the small concern structure of the agriculture 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 with regards to 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 gene technology – in which it did not accept ethical or religious arguments for a national GM-seed ban from a Member State without more detailed sustainable grounds. Similarly, the ECJ does not accept the argument that it would cause unrest within the population. That should not prevent a Member State from consequently implementing EU law. There the ECJ is quite clear.

GMO Safety: From a legal point of view are there any grounds on which a cultivation ban can be justified?

Hans-Georg Dederer: In the end it is not just the grounds but also their importance that matters. Any grounds could be taken as legitimate, but the question is, are they sufficient to justify that measure 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, how far can it be assumed that certain socio-economic grounds – provided that they are in principle legal – are not important enough to justify the restrictions. There are also other restriction possibilities that take due account of these reasons. Therefore, an undifferentiated GMO cultivation ban will fail.

GMO Safety: What other restriction possibilities do you mean?

Hans-Georg Dederer: The means to meet the coexistence or acceptance problem have to be proportionate, i.e. for the sake of coexistence everyone has to accept, for example, certain restraints: those who do not want gene technology must tolerate minor GMO traces, and the GMO farmers must apply specific measures concerning processing management, so-called Best Practices – such as coated seeds or separation areas – that all cost money. Such reciprocal restrictions create commensurability, and the ECJ will pay attention to whether a just, for all sides considerate compromise is reached. With respect to acceptance, an identification labelling or threshold value should be considered rather than a ban, as well as measures for compliance.

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

Hans-Georg Dederer: There again free trading plays a role, which is also a distinct freedom on which an individual can rely. On top of that comes not only the basic rights on a national level, such as professional freedom, 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 free trading, which is laid down in the treaties 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 treat violation proceedings. The other possibility is that at the national level petitioners are found who are prepared to let the corresponding legal position be checked in the courts of the Member State concerned. The courts could present the questions concerning EU conformity laws again to the ECJ. With the planned new regulations, the buck is in the strict sense passed to the Member States, as the Commission is leaving them the organisation of the GMO bans and restrictions – and with it the full risk of European conformity law.

GMO Safety: In what cases could Member State then anyway establish GMO-free zones?

Hans-Georg Dederer: One ground could be seed production, because there the „purity“ anyway has to be maintained. In this branch suitable practices are already in place, such as enclosed cultivation areas where certain seeds of crossbred plants may not be sown. Therefore it can be said that to protect the production of conventional or ecological seed defined GMO-free zones could be planned – but only always for specific GMOs! Establishing self-contained cultivation areas does not mean that all GMO are banned there, only those with which the seeds could crossbreed. However, I regard zones that prohibit every form of GMO, and that possibly extend to the whole country, as legally impossible. That is not coexistence or legally tenable, in any case not under the points of view of fundamental rights, basic freedom and world trading law, because total freedom from GMOs is not in line with the commensurability principle.

GMO Safety: Will the actual leeway of the Member States for prohibiting cultivation only be legally defined in a few years after the 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 on basic principles, as for example the Federal Constitutional Court, but more to cases or to questions presented to it by the national courts. It can be assumed that a picture of what the ECJ holds for legitimate concerning GMO-free zones and what not will possibly only become clear after several years and many proceedings.

GMO Safety: What ever way, is it your opinion that non-scientifically based total bans founded on socio-economic or cultural grounds – as 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, basic freedom and world trading laws – which each add up to a testing of the commensurability. According to this, even on the first glance, one-sided „zero-tolerance solutions“ are not proportionate.