EU Commission’s proposed national GM crop bans may be legally invalid

By various sources

An effort by the European Union  to give power over biotechnology crops back to sovereign nations has run into serious legal problems. It could end up strengthening the central regulator’s hand by allowing more genetically engineered products to be approved, despite public opposition.

The European Commission made legal proposals in July to let member states  make their own decisions on genetically modified crops, in a bid to break a longstanding EU deadlock on new GM product approvals. But since the Commission previously ruled out economic, environmental or health grounds for a GM ban, the only remaining option for nations is to reject GM crops on ethical grounds. However, the EU Council Legal Service just opined that ethical grounds will not stand up in European courts or at the World Trade Organization.

Reuters: EU legal experts “seriously doubt” that plans to let European Union member states decide for themselves to grow or ban genetically modified (GM) crops are in line with global trade rules, officials said on Monday.

The European Commission made legal proposals in July to let governments to make their own decisions on the controversial crops, in a bid to break a longstanding EU deadlock on new GM product approvals.

But a new opinion from the EU Council of Ministers’ legal service could deal a fatal blow to the plans, after several EU governments already expressed fears that the draft law risks breaching World Trade Organisation (WTO) rules.

… A key concern raised by the legal experts is how governments would justify a cultivation ban after the Commission had ruled out environmental or health grounds for prohibitions.

“Economic arguments cannot be relied upon … so the obvious remaining candidate would therefore be ethical reasons,” the opinion stated, according to an EU official.

But ethical arguments are unlikely to be accepted by the WTO or the European courts as grounds for a ban, as livestock farmers in most EU countries already feed animals with imported GM products, thus undermining the argument, the opinion added.

As a result, national cultivation bans based on ethical criteria risk being either rejected by the European Courts or challenged in the WTO, the experts concluded.

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GM Watch

1. Critical report by EU Council Legal Services on EU Commission’s proposal for GMO cultivation bans
2. Setback seen for EU plan on biotech crops

NOTE: EU Health Commissioner John Dalli has led an EU Commission plan to allow member states to ban the cultivation of GM crops in return for allowing fast-track approval at the central EU level. This proposal is opposed by many environmental and anti-GM groups, which warn that member states that choose to implement bans at national level would be vulnerable to legal challenges.

Now a report by the legal service of the EU Council of Ministers supports the environmental groups’ position — saying that Dalli’s proposal may not have a legal leg to stand on.
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1. Critical report by EU Council Legal Services on EU Commission’s proposal for GMO cultivation bans
Amsterdam/Brussels, 11 Nov 2010
Press release by IVM-VU: Institute for Environmental Studies, Vrije Universiteit, Amsterdam)

The EU Commission’s proposal to allow individual Member States to ban or restrict GMO agriculture on their national territory has an “invalid legal basis” and leaves “strong doubts” about the compatibility with EU and WTO trade laws of national restrictions of EU-authorized GM crops. These are the conclusions of a legal assessment report by the legal service of the EU Council of Ministers, which is due to be presented to Member States today, in Brussels.

The report confirms the legal criticisms raised in recent months by various EU law experts, including biotechnology law specialist Thijs Etty, of the Institute for Environmental Studies (IVM) at the VU University Amsterdam, who currently also serves as a legal expert on a biotech panel for the European Economic and Social Committee (EESC), an EU Advisory Body.

In response to media requests to comment on the content and implications of the conclusions of the (leaked) legal report, Mr. Etty said: “This is a sensitive and embarrassing blow for the EU Commission’s proposal. As guardian of the Treaty, its primary task is to safeguard the functioning of the EU internal market and to upheld European law. Instead, the Council’s legal service report reveals that the Commission’s proposal was grounded on a fundamentally flawed legal basis and impairs the internal market.”

The impact of the legal report is expected to be significant. So far, the Commission had dismissed all skepticism and doubts about the legal soundness of its proposal, as raised by Member States, NGOs, industry and academia.

However, as Mr. Etty noted: “now the EU’s own lawyers have confirmed my earlier criticism that the Commission proposal does not afford Member States a realistically viable degree of legal protection for bans based on ethical, moral, or religious concerns, or public opinion. Both EU Courts and the WTO have in the past been very restrictive in accepting such arguments, unless countries can provide extensive and consistent evidence to justify their trade restrictions.”

EU countries will now decide in the coming weeks whether to vote down the proposal entirely, to accept it as it stands, or to pressure the Commission to amend its text. Ministerial summits in the Environment and Agriculture Council meetings in October were already highly skeptical of the plans.

But, as Mr. Etty explains: “Member States are caught between a rock and a hard place — if they accept the proposal as it stands, their bans will be extremely vulnerable to legal actions by biotechnology companies, GM farmers, world trade partners, or even the EU Commission itself. But if they reject the proposal altogether, the Commission will have free rein to authorize a plethora of new GM crops for cultivation.”

In fact, in a New York Times & International Herald Tribune article published today, Etty predicts: “With many crops ready, or nearly ready, for final approval, we could have what represents an unprecedented avalanche of new biotech varieties growing in Europe within the next couple of years.” If this happens, “Europe’s unique position as the world’s largest GMO-free zone will come to an end”, Mr. Etty adds.

Background

Last July, the Commission proposed an amendment to current EU GMO regulation, to allow individual Member States ‘opt out’ from EU-level authorizations by banning or restricting GM farm crops on their national territory.

The policy shift was a bid to overcome the longstanding political stalemate that has crippled GMO decision-making in the EU for over a decade. According to Mr. Etty, the so-called ‘renationalisation’ of GM crop cultivation decision-making will actually entail a further transfer of power to Brussels.
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Mr. Thijs F.M. Etty, LL.M. is a researcher at the Institute for Environmental Studies (IVM), and assistant professor of EU law at the Transnational Legal Studies Department, Law Faculty, VU University Amsterdam. With a background in European and international law, he specializes in EU and transnational environmental law and biotechnology and food regulation.
He currently serves as a legal expert on a biotech panel for the European Economic and Social Committee (EESC), an EU Advisory Body.

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2. Setback Seen for EU Plan on Biotech Crops
By JAMES KANTER
New York Times, November 10, 2010

BRUSSELS — An effort by the European Union  to give power over biotechnology crops back to local authorities has run into serious legal problems. But it could end up strengthening the central regulator’s hand by allowing more genetically engineered products to be approved, despite public opposition.

One of the first things that the European Union commissioner for health and consumer affairs, John Dalli, did after taking office early this year was to approve the planting of a type of genetically modified potato in Europe. That was the first approval of its kind for a decade, and it angered many environmentalists.

Mr. Dalli then proposed a radical overhaul of the existing rules that would allow European Union member states to reject biotech foods, even after they win approval by the bloc. His goal was to make future approvals of biotech crops swifter and less acrimonious by effectively allowing countries to opt out.

But on Thursday, lawyers working on behalf of European Union governments in Brussels were expected to issue a legal opinion concluding that the plan would violate European law and global trade rules.

Frederic Vincent, a spokesman for Mr. Dalli, said that the commission’s own lawyers had reached a different opinion, and that Mr. Dalli would continue to push his proposal.

But with France and Germany already signaling strong reservations, some experts said Mr. Dalli might have to withdraw the plan and stick with the current system.

That could turn out be the best outcome for biotech companies.

“Unlike his predecessors, Mr. Dalli showed with the potato that he had no qualms about approving new biotech crops for cultivation judged safe on the evidence,” said Thijs Etty of Vrije Universiteit Amsterdam, an expert in biotech regulation.

“With many crops ready, or nearly ready, for final approval, we could have what represents an unprecedented avalanche of new biotech varieties growing in Europe within the next couple of years,” said Mr. Etty, who also serves as an academic expert on a biotech panel at the European Economic and Social Committee, an European Union advisory body.

Among the crops that already have received safety approval from the authorities at the European Food Safety Authority are varieties of corn by Monsanto, Syngenta, Pioneer and Dow AgroSciences.

Companies have made more than a dozen other applications for biotech crops, including two more varieties of potato, a second engineered by BASF, and another by a Dutch company called Avebe, as well as a sugar beet, developed jointly by Monsanto and KWS, a Germany company.

The only other biotech crop grown in Europe besides the potato, which is used mainly to produce starch for the paper industry, is a type of corn produced by Monsanto, which was approved in 1998.

Austria, Greece and Italy have consistently blocked approvals of biotech crops by the European Union to avoid being required to allow them to be planted at home.

Mr. Dalli’s proposals were an effort to avoid this problem, by allowing countries to restrict or prohibit the cultivation of biotech crops on their territory on ethical grounds.

But according to the opinion to be issued Thursday, there are “strong doubts about the compatibility” of the proposal with European Union treaties concerning the single market, as well as global trade agreements.

The commission has been seeking for years to ease tensions with Argentina, Canada and the United States, where modified crops are grown.

Those countries won a lawsuit at the World Trade Organization in 2006 obliging Europe to ease remaining bans on the import and cultivation of genetically modified products. The United States still could impose punitive duties on the Europeans for continuing to block trade.

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Legal doubts over EU plans to give states choice on GM crops
Guardian UK
November 15, 2010

Europe’s plans to let countries choose for themselves whether to grow or ban GM crops would be unacceptable under EU and probably international law, says official legal advice offered to member state governments and leaked to the Guardian.

The advice is highly embarrassing for the European commission (EC) which has long advocated more openness by member states about the technology. The EC appeared to make a major concession in July when it told the 27 member states that they could decide for themselves.

But the 15-page legal document, prepared by the legal service of the EU Council of Ministers, states that the EC proposal has an “invalid legal basis” and leaves “strong doubts” about the compatibility of the proposal with EU and World Trade Organisation laws.

“This confirms that there are legal problems with the EC proposal. It must now be amended by the parliament and the member states,” said the Greenpeace GM campaigner Marco Contiero in Brussels.

However, legal experts said that far from being a defeat for the commission, the opinion gave it the political legitimacy to now push through many new GM crops. “Member states are caught between a rock and a hard place – if they accept the proposal as it stands, any bans will be extremely vulnerable to legal actions by biotechnology companies, GM farmers, world trade partners, or even the EU commission itself. But if they reject the proposal, the commission will have free reign to authorise a plethora of new GM crops for cultivation,” said Thijs Etty, assistant professor of EU law at the VU University of Amsterdam.

EU countries must now decide whether to vote down the proposal entirely, accept it as it stands, or pressure the EC to amend its text, said Etty.

Europe has been deeply split on GM crops for nearly 20 years. Countries including Britain and the Netherlands want the right to grow them on a large scale, but others, led by Italy and Austria, want to be allowed to impose bans. Only two crops are authorised, but a further 24 are in the pipeline.

The legal opinion coincides with a major new EU-wide poll showing that opposition to GM food has hardened slightly. According to the latest Eurobarometer poll, conducted in all 27 member states, 61% of people do not want to see the crops grown compared with 57% in 2007.

It further suggested that Europeans believe that GM food is fundamentally unnatural (70%), is not safe for their health or that of their family (59%), is not safe for future generations (58%), and benefits some people but puts others at risk (57%). Less than a third of those interviewed believe GM food is good for the economy.

Last month more than a million Europeans signed the first ever citizens’ initiative calling for a freeze on new authorisations of GM crops. A formal request to the commission to legislate against the crops will be handed to the commission president, José Manuel Barroso, in Brussels in the coming weeks.

GM in Europe

• Only two GM crops can be legally grown in the EU: a GM maize strain (MON 810) was authorised for commercial cultivation in 1998 and a GM starch potato known as Amflora was authorised for cultivation and industrial processing in March 2010.

• More than 20 other requests for authorisation of GMO cultivation, or for their renewal, are ongoing.

• Austria, Hungary, France, Germany, Greece and Luxembourg have prohibited the cultivation of the GM maize MON 810 in their territories.

• In addition, Austria, Luxembourg and Hungary have notified the European Commission of their decision to prohibit the cultivation of the Amflora potato. Poland has legislation in place forbidding the marketing of all GM seeds.

• Spanish farmers grow around 80,000ha (198,000 acres) of GM maize.