EU ministers give green light to national GMO crop cultivation bans

4 March 2015

Rules geared towards allowing the EU’s 28 member states to either restrict or ban the cultivation of genetically modified organisms (GMOs) in their territory cleared a final legislative hurdle on Monday after garnering the support of EU economic ministers.

The EU’s Competitiveness Council, a ministerial configuration focused on policy areas such as the bloc’s internal market, formally adopted the compromise directive that passed the European Parliament by 480 votes to 159 in January. The new rules will now come into force 20 days after their publication in the Official Journal of the EU.

Jānis Dūklavs, the Latvian minister for agriculture and president of the council, said that the move would give member states greater legislative freedom around GMO crops. The topic has proved highly polarising between member states over the past few years. 

“This is in line with the subsidiarity principle and respects citizens’ and farmers’ preferences,” Dūklavs explained, referring to a European principle of legislating as closely as possible to citizens, ensuring that there is an appropriate balance of competences between local, national, and regional authorities.

Two ways out

The directive, as agreed in a political deal between the European Council and Parliament last December, gives member states two options to exercise flexibility over the growth of GMO crops in their territory. (See BioRes, 7 December 2014)

In the first instance, during the authorisation procedure for a GMO to be placed on the EU’s internal market, member states can ask to amend its geographical scope. This part of the legislation includes a process where member states should seek consent from the crop company responsible for the GM technology in question. If no consent is given, however, countries can move ahead unilaterally.

Secondly, once a GMO has been approved at the EU level, a member state can ban or restrict the cultivation of the crop on environmental, land use, socio-economic or agricultural policy grounds, beyond those considered by the European Food Safety Authority (EFSA).

In the EU’s existing legal framework, GMOs for crop cultivation should undergo an individual risk assessment before they can be placed on the internal market. This includes an assessment from the EFSA on possible threats posed by a GMO to human life and health, as well as animal health and welfare.

To date, EFSA has approved two strains for cultivation at the EU level, compared with more than 90 GMO varieties given the green light in the US and 30 in Brazil.

Faced with strong public opposition to GMO crops, however, some member states over the past decade have invoked national safeguard bans – temporary measures requiring continuous renewal – to prohibit the cultivation of biotech products. The moratoriums, targeted in particular at a Monsanto maize variety known as Mon810, ran against EFSA clearance.

In a bid to bring some regulatory coherence to a fragmented EU regime around GMO crops, and break a deadlock in the EU-wide GMO approval process, the European Commission in July 2010 first proposed the national ban concept.

The new rules approved on Monday now make a distinction between the respective competency of the EU and the individual member states. Issues related to the placing on the market and the import of GMOs should remain regulated at the union level, while cultivation should be the domain of individual countries given that it is an issue with strong national regional and local dimensions, the directive says.

The legislative document also suggests that the option to invoke national bans is likely to improve the EU-wide GMO approval process, since this has proved to be particularly difficult in the past given expressed national concerns. 

WTO compliant?

The discrepancies in the EU GMO regime raised several concerns from abroad over the years. Brussels repeatedly came under pressure from other WTO members to legislate to lift the controversial member state bans.

In 2006, a WTO dispute panel found in a case brought by Argentina, Canada, and the US that the EU’s application of its GMO approval process from 1999 to 2003 effectively violated international trade rules by causing “undue delays.”

That panel also rejected the Commission’s defence of the national bans as precautionary measures, and said that the EU had acted inconsistently with its obligations under Articles 5.1 and 2.2 of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). These stipulate that such applications should take into account risk assessment techniques developed by the relevant international organisations and be made on the basis of scientific principles, respectively.

The case did not go to the Appellate Body, with the panel reports adopted by the Dispute Settlement Body (DSB) in November 2006. Complainants Argentina and Canada eventually reached a “mutually agreed solution” to the case with the 28 member state bloc while the US requested authorisation to retaliate. Arbitration proceedings in the latter instance have, however, been suspended since 2008.

Meanwhile, the GMO topic could prove a stumbling block in a major bilateral deal currently under negotiation between the US and the EU known as the Transatlantic Trade and Investment Partnership (TTIP), given the emphasis on improving regulatory coherence and cooperation in those talks.

In January, Germany’s Green party presented a study to the country’s parliament arguing that agreements such as TTIP could lower EU standards around GMO-free agriculture, including measures designed to diminish cross-contamination between biotech and non-biotech seed.

Cross-contamination

The new directive includes rules geared towards preventing the cross-border contamination of non-GMO crops in member states that choose to deploy the national ban. Member states cultivating GMOs should take necessary measures to avoid cross-contamination and communicate these to the Commission.

A 2010 Commission recommendation is cited in the directive on the development of coexistence measures including in border areas. A 2008 Commission study on the socio-economic implications of GMO cultivation is also referred to in the directive as containing useful information to guide member states’ policymaking on the topic.

Some EU member states and environmental groups have raised concerns in the past around the potential for GMO cross-contamination to cause a wide range of socio-economic effects. According to some experts, these may include effects on food, feed, and commodity prices, ethical considerations, the risks of extinction in traditional varieties, and operating costs.

A report by environmental lobby group Friends of the Earth Europe suggests that co-existence farming in the EU can raise costs for both GMO and non-GMO producers, largely as a result of the need for segregation and traceability. For example, an organic soy food processor from France faced aggregate GMO-contamination prevention costs of nearly €270,000 per year, according the study.

ICTSD reporting; “German Environment Ministry seeks unconditional GMO ban,” EURACTIV, 14 January 2015. 

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