Brussels Cunningly Paves the Way for Genetically Modified Crops (Brussel Baant Listig de Weg voor Gentechnologie)

Abstract

Opinion Editorial article [Dutch language] criticizing the EU Commission's GMO crop cultivation 'Re-Nationalization' proposal of July 2010, and questioning its legal viability and compatibility with EU and WTO trade law.

On 13 July 2010, the European Commission has unveiled a shift in EU policy on genetically modified (GM) crops. The Commission’s proposals suggest a ‘renationalisation’ of decision-making, by allowing individual Member States to ban or restrict GM agricultural on their national territory. The policy shift is a bid to overcome the longstanding political stalemate that has all but prevented GM crop releases in the EU for over a decade. The compromise would leave the harmonized EU-level GM crop authorization system in place, and would allow increased GM agriculture in favourable markets like the Netherlands, United Kingdom, Sweden, and the Czech Republic, but would also grant reluctant countries like Austria, Italy, Greece, Luxembourg, and Hungary, the right to prohibit the cultivation of EU-approved GM crops. In return for this right to ‘opt-out’, those critical Member States are expected to end the current political deadlock and facilitate future authorizations of GM crops at EU-level.

However, this article demonstrates that the legal position of GM-critical countries may in fact be diminished by this EU policy shift. Based on legal analysis of the details of the proposals and supporting policy documents, the conclusion is that Member States are not granted new substantive and enforceable legal rights to ban GM crop cultivation. In fact, their existing prohibition grounds, based on environmental or health concerns, or coexistence issues to guarantee GM-free status of organic agriculture, may be further restricted by the Commission’s proposed legislative changes. National bans would need to be based on ethical or socio-economic grounds, like public opinion, which are difficult to quantify and defend in court or at the World Trade Organization (WTO). The current proposals offer no legal protection against such legal challenges by biotechnology companies, GM farmers, world trade partners, or even the EU Commission itself.

The article argues that the so-called ‘renationalisation’ of GM crop cultivation decision-making will actually entail a further transfer of power to Brussels. There are indications that Brussels plans to authorize a range of new GM crops for cultivation in the EU in the coming months, in the face of opposition by the majority of Europe’s citizens. The unique position of the EU as the world’s largest GMO-free zone therefore appears about to come to an end.

Note: Downloadable document is in Dutch.

Keywords: EU law, EC policy, precauationary principle environmental policy, biotechnology, GMO, transgenic, risk regulation, safeguard ban, Renationalization, ECJ, comitology, WTO, trade, morality clauses, coexistence

JEL Classification: K32, K33, K39, K23, K10, K13, K19, K00, O13, Q17, Q18