Agreement on the Application of Sanitary and Phytosanitary Measures

Agreement on the Application of Sanitary and Phytosanitary Measures

ExpertInnengutachten
Possibilities for justification of a ban on GMO
cultivation regarding the proposal for a Regulation
from the European Commission submitted in July 2010
Impressum
Herausgeber, Medieninhaber und Hersteller:
Bundesministerium für Gesundheit, Sektion II
Radetzkystraße 2, 1031 Wien
Für den Inhalt verantwortlich:
Mag. Ulrich Herzog
Erscheinungstermin:
Jänner 2011
Autoren:
Andreas Heissenberger
Michael Eckerstorfer
Helmut Gaugitsch
Umweltbundesamt GmbH, Abteilung Landnutzung & Biologische Sicherheit,
Spittelauer Lände 5, 1090 Wien
Druck:
Kopierstelle des BMG, Radetzkystraße 2, 1031 Wien
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Internet:. http://www.bmg.gv.at
ISBN 978-3-902611-47-5
ExpertInnengutachten
Possibilities for justification of a ban on GMO
cultivation regarding the proposal for a Regulation
from the European Commission submitted in July 2010
Bericht zum Forschungsauftrag GZ 70420/0223-II/B/15/2010
AutorInnen:
Andreas Heissenberger
Michael Eckerstorfer
Helmut Gaugitsch
Umweltbundesamt GmbH, Abteilung Landnutzung & Biologische Sicherheit,
Spittelauer Lände 5, 1090 Wien
Content
Content
Summary ..................................................................................................................................... 2
Zusammenfassung........................................................................................................................ 3
Introduction ................................................................................................................................. 5
The proposal of the European Commission ................................................................................... 5
Regulation text .................................................................................................................................... 5
Recitals ................................................................................................................................................ 6
The recommendations on co-existence ......................................................................................... 7
WTO ............................................................................................................................................ 8
General Agreement on Tariffs and Trade GATT .................................................................................. 9
Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) ................................ 12
Agreement on Technical Barriers to Trade (TBT) .............................................................................. 13
Possibilities to justify bans von cultivation of GMOs .................................................................... 13
Possibilities according to the proposal by the European Commission ............................................. 13
Possibilities according to WTO .......................................................................................................... 15
Conclusions with regard to an Austrian position .............................................................................. 15
References ................................................................................................................................. 17
Acknowledgements: The authors want to thank Prof. Dr. Joost Pauwelyn, Graduate Institute of
International Studies in Geneva, Switzerland, for valuable input regarding WTO issues.
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Summary
Summary
In July 2010 the European Commission tabled a proposal for a regulation, which allows the
Member States to restrict or prohibit GMO cultivation on their territory, but asks for a
justification which needs to be in-line with the Treaties and international agreements, most
important the WTO agreements.
The proposal text does not give details on which grounds a MS can justify a restriction or ban
but narrows the possibilities by excluding any possible health or environmental effects. This
also means that, in contrast to Directive 2001/18/EC (Art. 23) new scientific evidence cannot
serve as a ground for measures to limit or ban GMO cultivation. This leaves the Member States
with a rather limited spectrum of possible arguments, i.e. effects on agriculture, socioeconomic effects and other cultural reasons, like ethics, religion or public morals.
Measures to mitigate possible negative effects on agriculture and the protection of organic
and conventional farming from contamination are already taken care of in Art. 26a of Directive
2001/18/EC dealing with co-existence measures. These measures also include the possibility to
set low threshold levels, especially for organic farming or GM-free production, and the
possibility to ban GMO-cultivation on large areas, provided that national or regional aspects
are taken into account and that the measures are proportionate. Measures according to the
proposal by the European Commission need to be taken independently of the coexistence
measures.
While a local or regional measure will only have minor or no effects on trade a restriction or
ban on GMO cultivation on the whole territory of a country can be interpreted as a trade
restriction. This means that for the latter also WTO provisions have to be taken into account.
Possibilities to justify measures with regard to GMO cultivation are laid down in the GATT. All
measures need to be in line with this agreement and must not be discriminatory and have to
be proportionate, meaning that the measures have to be valid for national and non-national
products, and the measures need to be least trade restrictive as possible. Measures are also
possible, if they are necessary to protect public moral or to be in compliance with existing
legislation. Cases at the Dispute Settlement Body and the European Court of Justice have
shown that arguments related to public morals are not always followed in the rulings, because
the necessity is not always given. It has also been stated in a case dealing with a ban on GMO
seeds invoked by Poland that public opinion alone can not be taken as a reason to take such
strict measures.
It can be concluded that most of the measures, which are possible to restrict or ban the
cultivation of GMOs are already covered by coexistence measures according to Art 26a of
Directive 2001/18/EC. Other grounds for justification, which are in line with the EU legislation
and the provisions laid down in the various WTO agreements, are limited and, given examples
of several disputes and court cases, often not accepted.
Given the current practice and existing provisions in the EU legislation with regard to
safeguard clauses according to Directive 2001/18/EC (Art. 23), and in order to allow MS to
invoke measures based on scientific grounds, rather than on on a very difficult argumentation
of ethics and public morals, the exclusion of all arguments with regard to health and the
environment should be withdrawn.
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Zusammenfassung
Zusammenfassung
Im Juli 2010 hat die Europäische Kommission einen Vorschlag für eine Verordnung vorgelegt,
die vorsieht, dass die Mitgliedsstaaten den Anbau von GVO auf ihrem Territorium
einschränken oder verbieten können, dies aber begründen müssen. Diese Begründung muss
einerseits den Verträgen der Europäischen Union und andererseits den Vorgaben der
internationalen Verträge, vor allem der WTO Abkommen, entsprechen.
Der Vorschlag der Europäischen Kommission enthält keine Details zu möglichen
Begründungen, schränkt die Möglichkeiten aber stark ein, indem Gründen mit Bezug zu
Gesundheits- oder Umwelteffekten ausgeschlossen wären. Das heißt auch, dass im Gegensatz
zur Richtlinie 2001/18/EG (Art. 23), neue wissenschaftliche Erkenntnisse nicht zur Begründung
für die Einschränkung oder das Verbot eines GVO Anbaus herangezogen werden können. Das
lässt den Mitgliedsstaaten nur mehr wenige Möglichkeiten, Maßnahmen zu argumentieren.
Diese umfassen Effekte auf die Landwirtschaft, sozio-ökonomische Effekte oder andere, z.B.
ethische bzw. religiöse Gründe oder Gründe mit Bezug zur öffentlichen Moral.
Maßnahmen die getroffen werden, um negative Effekte auf die Landwirtschaft zu verhindern
und den Schutz von biologischer und konventioneller Landwirtschaft vor Kontaminationen zu
schützen, sind bereits in Art. 26a der Richtlinie 2001/18/EG zur Koexistenz berücksichtigt.
Diese Vorgaben erlauben es auch, niedrige Grenzwerte für biologische oder GVO-freie
Produktion vor zu geben, und den GVO Anbau in großen Gebieten zu verbieten, vorausgesetzt
dass regionale Aspekte berücksichtigt wurden und dass die Maßnahmen verhältnismäßig sind.
Maßnahmen die nach dem neuen Kommissionsvorschlag gesetzt werden, müssen unabhängig
von Maßnahmen nach Art. 26a getroffen werden.
Während lokale oder regionale Maßnahmen wahrscheinlich nur einen geringen oder keinen
Einfluss auf den Handel haben, kann eine Einschränkung oder das Verbot des GVO Anbaus auf
dem gesamten Staatsgebiet auch als Handelshemmnis interpretiert werden. Daher müssen für
den letzteren Fall bei der Begründung etwaiger Maßnahmen auch die Vorgaben der WTO
Verträge berücksichtigt werden. Möglichkeiten für eine solche Begründung sind im GATT
festgelegt. Alle Maßnahmen müssen diesen Vorgaben entsprechen und dürfen nicht zwischen
nationalen und nicht nationalen Produkten diskriminieren und müssen verhältnismäßig, d.h.
möglichst wenig handelseinschränkend, sein. Maßnahmen sind auch dann möglich, wenn diese
für den Schutz der öffentlichen Moral, oder für die Einhaltung bestehender Gesetze notwendig
sind. Präzedenzfälle bei der Streitschlichtungsstelle der WTO oder dem Europäische
Gerichtshof haben gezeigt, dass Argumente die sich auf die öffentliche Moral beziehen oft
nicht anerkannt werden, weil die Bedingung der Notwendigkeit nicht gegeben ist. In einem
Fall, der ein Importverbot für GVO Saatgut durch Polen, betraf wurde vom EUGH auch
festgestellt, dass die öffentliche Meinung alleine nicht als Begründung für ein solches Verbot
herangezogen werden kann.
Zusammenfassend kann gesagt werden, dass fast alle Maßnahmen, die für eine Einschränkung
oder ein Verbot des GVO Anbaus möglich sind, bereits durch Koexistenzmaßnahmen nach Art.
26a der Richtlinie 2001/18/EG abgedeckt sind. Andere Möglichkeiten für Begründungen, die
den Vorgaben der EU Gesetzgebung und der WTO Abkommen entsprechen, sind stark
eingeschränkt und werden, wie bisherige Fallbeispiele gezeigt haben, auch oft nicht anerkannt.
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Zusammenfassung
Wenn man die derzeitige Praxis und die bestehenden Möglichkeiten für Maßnahmen nach der
Richtlinie 2001/18/EG (Art. 23) betrachtet, und auch um Mitgliedsstaaten zu ermöglichen,
Entscheidungen auf Basis wissenschaftlicher Erkenntnisse und nicht auf Basis sehr schwierig zu
argumentierender ethischer oder moralischer Gründe zu treffen, sollte der Ausschluss von
Begründungen mit Bezug zu Gesundheits- und Umwelteffekten zurückgenommen werden.
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Introduction
In July 2010 the European Commission (EC) tabled a proposal for a regulation, which allows
the Member States (MS) to restrict or prohibit GMO cultivation on their territory. This proposal
is a consequence of the discussion on this issue between the EC and the MS on national
sovereignty, national safeguard clauses issued by several MS and also the Council Conclusions
from December 2008.
After a proposal by the EC to lift Austria's bans on the cultivation of MON810 and T25 Maize
was rejected by a qualified majority in March 2009, the EC was asked to consider a change of
legislation which should enable the MS to "opt-out" from cultivation after a GMO has been
authorized for this purpose. This request was tabled at an Environment Council in June 2009
by Austria and supported by 12 MS.
The proposal by the EC tabled as a follow up of this request will enable MS to restrict or ban
GMO cultivation, but requires a justification which needs to be in-line with the Treaties and
international agreements, most important the WTO agreements. The proposal text does not
give details on which grounds a MS can justify a restriction or ban but narrows the possibilities
by excluding possible health or environmental effects.
This report outlines the possibilities as well as drawbacks of the proposal with regard to
possible grounds for justification of a national ban or restriction of GMO cultivation.
The proposal of the European Commission
The following chapter will summarize and analyse the proposal tabled by the European
Commission.
Regulation text
The proposed Regulation is an amendment of Directive 2001/18/EC and the proposed text is
only one new Article which is to be added, the new Article 26b. While Article 26 of the
Directive deals with labelling provisions, Article 26a, which was added by an amendment in
Regulation (EC) No. 1829/2003, allows the MS adopt coexistence measures to avoid
unintended presence of GMOs in non-GMO products. This Article 26a was supplemented by
Commission Recommendations, which have been updated and the new version was published
at the same tame as the proposal for the new Regulation.
The new Article 26b is rather concise and reads as follows:
Article 26b
Cultivation
Member States may adopt measures restricting or prohibiting the cultivation of all or particular
GMOs authorised in accordance with Part C of this Directive or Regulation (EC) No 1829/2003,
and consisting of genetically modified varieties placed on the market in accordance with
relevant EU legislation on the marketing of seed and plant propagating material, in all or part
of their territory, provided that:
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(a) those measures are based on grounds other than those related to the assessment of the
adverse effect on health and environment which might arise from the deliberate release or the
placing on the market of GMOs;
and,
(b) that they are in conformity with the Treaties.
By way of derogation to Directive 98/34/EC, Member States that intend to adopt reasoned
measures under this Article shall communicate them to the other Member States and to the
Commission, one month prior to their adoption for information purposes'.
The following points need to be considered:
Restrictions or bans may be adopted by MS for all GMOs authorised according to
Directive 2001/18/EC or Reg. (EC) No. 1829/2003.
The measured need to be justified.
Justifications must not be based on adverse effects to health and the environment.
All measures need to be in conformity with the Treaties
The EC and the other MS need to be informed prior to adoption of measures. The EC
does not need to agree with the measure, i.e. information does not mean notification
according to Directive 98/34/EC.
Recitals
There are several recitals which are relevant for possible grounds for a restriction or ban of
GMO cultivation as they give more details than the Regulation text itself
Recital 4)
Here it is stated that according to the EU legislation a MS is not authorised to prohibit or
restrict the circulation of a variety, including authorised GMO varieties, except under the
conditions defined by EU legislation. The relevant EU legislation deals with the authorisation
and marketing of seeds and plant propagating material, and the common catalogue of
varieties (Directives 2002/53/EC and 2002/55/EC).
Directive 2002/53/EC (Art. 16.2) and Dir. 2002/55/EC (Art. 16) allow MS to prohibit the use of a
genetically modified variety if it is established that the variety could be harmful to plant health
of other cultivated varieties, if the variety is not suitable for cultivation on its territory, or if
valid reasons indicate that the variety presents a risk to human health or the environment.
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Recital 5)
With reference to the principle of subsidiarity laid down in the Treaties (TFEU, Art 2(2)) it is
stated that cultivation of GMOs, contrary to placing on the market and import, is an issue
which should be dealt with by MS because of the strong regional dimension.
Recital 6)
Because of the regional aspects with regard to cultivation of GM crops, according to this
recital, MS should be given "...more freedom to decide whether or not they wish to cultivate
GMO crops on their territory without changing the system of Union authorisations of GMOs
and independently of the measures that Member States are entitled to take by application of
Article 26a of Directive 2001/18/EC to avoid the unintended presence of GMOs in other
products."
This means that measures according to Art 26b (new Regulation) need to be taken
independently from measures according to Art 26a of Dir. 2001/18/EC (coexistence). It
remains unclear if the same measures can be taken with reference to both articles or whether
measures for coexistence automatically exclude measures according to Art 26b. According to a
statement of the Commission in the Working Group of the Council she would further reflect on
this item.
Recital 7)
This recital reinforces the goal of limiting any national restrictions or bans to cultivation, by
stating that measures should not refer to "...the free circulation and import of genetically
modified seeds and plant propagating material, as or in products, and of the products of their
harvest." It also states that conventional seeds which contain adventitious or technically
unavoidable traces of GMOs should not be affected.
In other words: MS are allowed to restrict or ban the cultivation of GMOs but are not
authorized to limit or ban the trade with GM seeds or plant propagating material.
Recital 8)
In this recital more details on possible justifications for restrictions or bans are given. It is
clearly stated that the grounds for a ban should be others than that already addressed by the
EU rules, which already provide for taking risks into account that a GMO might pose for health
or the environment.
It further states that the measures must not be discriminatory, i.e. the measures should not be
different for national and non national products. They also need to be in accordance with Art.
34 and 36 of the TFEU, dealing with import restrictions between MS, and international
obligations, notably the WTO.
The recommendations on co-existence
The European Commission adopted a revised recommendation on "guidelines for the
development of national coexistence measures to avoid unintended presence of GMOs in
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conventional and organic crops" simultaneously with the presentation of the proposal for the
new Regulation.
This Recommendation also allows MS to take certain measures to protect conventional and
organic farming systems. The main points are:
Sometimes it is necessary to base measures at a GMO contamination level lower than
0.9%, i.e. the labelling threshold for GM products according to Reg. (EC) No.
1829/2003, especially for organic and GM-free products.
In order to be able to reach a level of contamination below a certain threshold, it
might be necessary - taking into account local and regional circumstances - to ban
GMO cultivation from large areas (GM-free areas).
All coexistence measures, including cultivation bans, need to be proportionate to the
safeguard needs of conventional/organic farmers, i.e. no other measures are sufficient
to prevent admixture of GM material according to regional requirements and that they
are suitable with regard to local characteristics.
In contrast to the previous Recommendations this allows for much stricter measures, including
e.g. 0.1% thresholds for organic products and the creation of large GM-free areas, the latter
being subject to a check for proportionality. In practice this means that total bans in large
areas need to be justified quite well, and it has to be proven that the goal, e.g. the protection
of organic products from contamination cannot be reached by other means, e.g. by
implementation of buffer zones or using varieties with a different flowering time.
In Austria coexistence is regulated on a regional level in the Precautionary laws or the Nature
Protection laws of the Bundesländer (Federal Provinces). Though these laws contain general
prerequisites and restrictions for GMO cultivation they do not give any details on actual
measures to be taken when planting GMOs.
In summary, the new guidelines on coexistence together with Art 26a of Directive 2001/18/EC
enable the MS to restrict and even ban GMO cultivation, at least on a regional level.
WTO
Because of the explicit reference to the WTO in the recitals many MS have raised questions
with regard to the conformity of the proposed Regulation with the WTO agreements, namely
the SPS, TBT, and GATT agreements. During these discussions the European Commission
assured the MS that because the proposal does not foresee any restrictions on trade, the
proposal is in line with the obligations of these agreements.
While local or regional measures or bans will most likely only have minor or no effects on seed
trade, a national ban or a ban by several Member States on the cultivation of GMOs, or special
GM events, species or traits, might be interpreted as a trade restriction by some members to
the WTO, as the ban on the use - and since cultivation is the sole use of seeds or plant
propagating material - automatically negatively affects trade.
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The WTO agreements allow certain trade restrictions, but are quite restrictive with regard to
the justification for those measures. In any case, all measures need to be
non discriminatory, i.e. national products have to be treated the same as non national
products and like products have to be regulated in the same way.
proportionate and shall not be more trade-restrictive than necessary, i.e. less strict
measures have a similar or the same effect, e.g. ban vs. buffer zones for the protection
of organic farming
in accordance with international standards
In order to avoid disputes at the WTO level, it would be advisable to use justifications for
restrictions or bans which are in line with WTO requirements. Several possibilities for taking
into account the different agreements are available at the WTO level. These are not mutually
exclusive since the WTO allows the justification of a certain measure involving arguments
based on different legal instruments available at the WTO level.
In the following possibilities for a justification according to the WTO agreements, GATT, SPS,
and TBT are analysed with regard to national measures.
General Agreement on Tariffs and Trade GATT
Basic provisions
One of the principles of the GATT is that internal laws, regulations and requirements should
not be applied to imported and domestic products in order to protect domestic protection
(Art. 3 (1)). It also states that no imported products shall be subject, directly or indirectly, to
internal taxes or charges other than those applied for LIKE domestic products. (Art. 3 (2)).
To be in line with this general provision the objective difference between GM and non-GM
crops need to be included in the line of argumentation. The fact that specific regulation for
GMOs exists at the EU and national level would likely not be sufficient as sole argument to
establish that there are relevant differences between GM and non-GM crops. Therefore it will
be necessary, also against the background of WTO decisions, to include physical differences
(e.g. differences in composition) or differences in biological characteristics (e.g. ability to
spread to other cultures) in order to fulfil the requirements of Art. 3 (2) and to make clear that
measures are specific for foreign and domestic GM crops, while other rules apply to non-GM
crops.
With regard to GM crops the main differences are: Artificial introduction of genes, which lead
to a difference in composition, i.e. the expression of new proteins, and new properties. This
opens the possibility to use different agricultural management practices (weed/pest
management), different potential to induce the development of weeds/insects harbouring
specific resistance traits (tolerance to certain non-selective herbicides in weeds, resistance to
specific Bt-toxins in pest insects).
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In any case, all measures have to be non discriminatory with regard to domestic and imported
products, i.e. measures have to be consistently applied for all GM crop products regardless of
their provenance.
Though Art 3 does not provide for general exceptions from the basic provisions, and those
exceptions listed, e.g. governmental procurement, do not apply for GMO cultivation, measures
which do take into account the above described line of argumentation might be successful in
case of a WTO dispute. A different line of argumentation may be based on Art. 20, that deals
with the requirements for exceptions, and entitles WTO parties to adopt specific national
rules.
General exceptions, Art. 20
Article 20 of the GATT, subject to the prerequisite of non discrimination between countries,
explicitly states that the agreement does not prevent parties to adopt and enforce measures,
which are:
a) necessary to protect public morals;
b) necessary to protect human, animal or plant life or health;
d) necessary to secure compliance with laws or regulations which are not inconsistent with the
provisions of this Agreement
Other exceptions are listed in Art. 20, but those are not relevant for the subject of GMO
cultivation.
As measures according to Art 20b are not allowed according to the proposal by the EC, this
topic is not discussed further.
Art. 20a allows for exceptions if the use or trading with a specific product may be in conflict
with public morals. The link to public morals for GMO cultivation is less obvious than for other
issues disputed at the WTO level, which were linked to fighting organized crime, or addictions
such as gambling or drugs, or ethics and religion, to mention just a few.
Possible socio-economic effects like a change of the cultivation systems, multifunctional
aspects of agriculture, tourism, values like pure food, organic farming etc, are usually not
included in a definition of public morals. Therefore it will be difficult to include them in a
justification according to Art. 20a. Even the overwhelming rejection of GM products by the
public might not be seen as linked to morals, as it is very unlikely that the crime or suicide rate
will increase or that religious values are disturbed, which is anyway very hard to justify (see
also case European Commission vs. Poland below).
Art. 20 d allows measures necessary to secure compliance with laws and regulations that are
consistent with the GATT. This might be the case for regulatory requirements for organic
production or GM free production systems, and requirements for sustainable production. If
national policies for a sustainable agriculture and agricultural subsidy schemes, e.g. for
reduction of pesticide use, agricultural practices with positive effects on the environment, are
also covered by this article needs to be investigated further.
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The justification needs to provide that the measures concerning restrictions of GM crop
cultivation are necessary and proportionate to achieve the objective of the respective existing
law or regulation.
Relevant Cases
With regard to the subject of public morals only a few cases, at the Dispute Settlement Body at
WTO level, or at the European Court of Justice are available. In the following three selected
cases are briefly summarized, to outline and discuss different lines of argumentation and
results.
WTO: US-Gambling
In this case several measures of the US related to cross border gambling and betting services
where challenged at the WTO. Among other defence arguments the US argued that the related
measures (three different laws) are based on the protection of public morals, in this case
allowing for an exception under the General Agreement on Trade in Services, Art 14 a, which is
almost identical to Art. 20a of the GATT, but also includes the protection of 'public order'.
The Panel found that "the term 'public morals' denotes standards of right and wrong conduct
maintained by or on behalf of a community or nation" and that "the definition of the term
'order', ...., suggests that 'public order' refers to the preservation of the fundamental interests
of a society, as reflected in public policy and law."
Finally the Appellate body agreed with the US argumentation and also acknowledged the
definition as set out by the Panel, but nevertheless ruled against the US for other reasons,
namely the inconsistency of the disputed measures, which did not apply similarly for all kinds
of gambling according to the overall regulatory framework.
WTO: China: Trading rights and distribution for audiovisual products
In this case Measures adopted by China in order to restrict the import and trade with reading
materials, audiovisual home entertainment products (e.g. CDs, DVDs), sound recordings and
films. The Chinese regulations limited the trading and distribution rights to state owned
enterprises. This was challenged by the US, Australia, and other countries.
With regard to GATT Art 20a China argued that for the protection of public morals it is
necessary to restrict the trade of the above mentioned goods to state-owned enterprises. It
also argued that publication import entities may only be approved if they are in conformity
with the State Plan, which regulates the number, structure and geographical distribution of
publication structure entities.
Both arguments were turned down by the Appellate Body, because they did not acknowledge
the necessity of the measures, and that there are alternatives with less impact on trade to
protect public morals in China. Consequently China was asked to lift the trade restrictions.
European Court of Justice: EC vs. Poland: GMOs-Seeds-Prohibition of Placing on the Market
In 2006 the Republic of Poland prohibited the import of GMOs because of - among others doubts on the safety of GMOs for health and the environment, the precautionary principle and
the strong opposition of the Polish people, and claiming that the introduction into the Polish
legal system of provisions to which most of the Polish people were opposed would be
unethical. The ruling contains the following arguments tabled by Poland:
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"In the present case, the adoption of the contested national provisions was inspired by the
Christian and Humanist ethical principles adhered to by the majority of the Polish people.
In that connection, the Republic of Poland goes on to put forward a Christian conception of life
which is opposed to the manipulation and transformation of living organisms created by God
into material objects which are the subject of intellectual property rights; a Christian and
Humanist conception of progress and development which urges respect for creation and a
quest for harmony between Man and Nature; and, lastly, Christian and Humanist social
principles, the reduction of living organisms to the level of products for purely commercial ends
being likely, inter alia, to undermine the foundations of society."
This reasoning was not followed by the ECJ because Poland only brought up that
argumentation in the defence at the court hearings and because of that has failed to establish
that the contested national provisions were in fact adopted on the basis of religious or ethical
considerations. It also stated that "However, a Member State cannot rely in that manner on the
views of a section of public opinion in order unilaterally to challenge a harmonising measure
adopted by the Community institutions."
Finally because of this and other reasons the Court ruled in favour of the European
Commission and against the prohibition invoked by Poland. Poland therefore had to lift its ban
on GMO cultivation.
Agreement on the Application of Sanitary and Phytosanitary
Measures (SPS)
The proposal for the new Regulation explicitly excludes the justification of any measures based
on negative effects to health and the environment. As these are the main accepted reasons for
sanitary and phytosanitary measures under the SPS agreement, it is not obvious how a
restriction or ban of GMO cultivation can be justified in accordance with this agreement.
However, the SPS agreement states in Art. 5. Para 3 that "In assessing the risk to animal or
plant life or health and determining the measure to be applied for achieving the appropriate
level of sanitary or phytosanitary protection from such risk, Members shall take into account
as relevant economic factors: the potential damage in terms of loss of production or sales in
the event of the entry, establishment or spread of a pest or disease; the costs of control or
eradication in the territory of the importing Member; and the relative cost-effectiveness of
alternative approaches to limiting risks."
According to this a justification based on an assessment of the economic consequences of
outcrossing and adventitious presence of GMOs in other cultures and the environment should
be possible. In any case, a total ban of GMO cultivation, might be interpreted as violation of
the principle of proportionality, as coexistence measures might also be sufficient to avoid
economic damage to organic or conventional farmers.
Relevant Cases
Relevant are the developments in SPS application, specifically the decisions taken by the AB
e.g. in the case EU: Hormones II (suspension case) and considerations in other cases (Apples:
Australia/NZ), which are not in line with the interpretations in the EU: Biotech case.
The AB in the Hormones case sided with the EU argumentation and underlines the importance
of specific issues of a risk assessment which are highly relevant to the country in question. In
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their review of a risk assessment panels should only check whether an assessment of such an
issue is prepared in an unbiased and objective fashion by the country implementing a
measure.
However, with a view to the reasons for restricting cultivation of GM crops and the exclusion
of health safety and environmental considerations by the proposal of the European
Commission a justification according to SPS does not seem to be very promising.
Agreement on Technical Barriers to Trade (TBT)
As all products, including agricultural products, are subject to the TBT agreement (Art 1 (3)) in
principle measures according to this agreement could be used.
Measures would need to be framed in a way that TBT is applicable, i.e. specifications for
cultivation of GM seeds, which are not interfering with trade related activities involving GM
seed.
As these technical specifications for cultivation are 1) not internationally standardised and 2)
usually covered by coexistence measures according to Art 26a of Directive 2001/18/EC, there
might be a conflict with the rule of proportionality, especially if technical specifications for
cultivation are invoked, which lead to a de facto ban of cultivation.
Possibilities to justify bans on cultivation of
GMOs
Possibilities according to the proposal by the European Commission
The proposal made by the European Commission has to be evaluated in the context of the
related European legislation. In contrast to Article 23 of Directive 2001/18/EC which allows the
MS to invoke safeguard clauses, the proposed text of the Regulation and the more detailed
explanations in the recitals do not allow measures which are based on possible negative
effects for health or the environment. According to Article 23 of Directive 2001/18/EC
measures could be based on the assessment of "new or additional information made available
since the date of the consent and affecting the environmental risk assessment or reassessment
of existing information on the basis of new or additional scientific knowledge, ...". This is not
possible following the new Regulation because it does not foresee measures based on new
evidence, if they are related to health or environmental effects. It does also not limit the
grounds for measures to those which have already been dealt with in the EU level risk
assessment. This means that all justifications related to health or the environment including
those which are based on specific environmental conditions, e.g. protected areas, biodiversity
or endangered species, will not be accepted.
This means that only grounds based on the agricultural, economic or social circumstances in
the MS can be used to justify a restriction or ban of GMOI cultivation. Arguments based on the
agricultural situation, e.g. protection of organic farmers, small scale agriculture, might be in
conflict with Art. 26a of Directive 2001/18/EC and the Commission Recommendation on Co-
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existence, as it is stated in recital 6 of the proposal that measures need to be taken
independently of measures according to Art. 26a, i.e. co-existence measures.
In summary this means, that according to the proposed Regulation measures could be invoked
only on grounds based on socio-economic or ethical grounds.
Measures related to co-existence have to be taken under the respective legislation, e.g. the
Gene-Technology-Precautionary laws of the Bundesländer (Federal Provinces).
Possibilities according to EU-law
Some aspects of the proposal of the European Commission need also to be seen in the context
of the EU primary law, i.e. the Treaties. While the specific secondary law, namely the Directive
2001/18 and the Regulation (EC) No. 1829/2003 are the primary reference for the proposal,
the Treaties are relevant in the context of the legal basis and with regard to questions
concerning topics like the internal market, subsidiarity and environment protection.
With regard to the legal basis the Commission has chosen Article 114 TFEU to base the
proposal on. Though this has been challenged by the Legal Service of the Council in a
statement in the course of the discussion of the proposal at the Council level, the choice of this
basis for the proposal seems to be the correct one. Article 114 TFEU allows Member States to
adopt national provisions for major needs, such as environment protection and protection of
human health as well as other major needs, which are not defined in detail. It is also aimed to
improve the functioning of the internal market. It can be argued that the proposal aims to
ensure this by breaking the deadlock, caused by national safeguard measures invoked by
several Member States. As these safeguard clauses would not be necessary any more, the
approval and use of GMOs could be expected to be less controversial, faster and more in-line
with international obligations, e.g. the WTO agreements.
The "principle of subsidiarity" which was explicitly included in the TEU was deleted according
to the Lisbon Treaty and substituted by a more general statement concerning the co-operation
of the different EU institutions (Article 9 Lisbon Treaty). However, according to this subsidiarity
more power was given to the national parliaments. The Commission might have chosen Article
114 TFEU as the legal basis, as it contains a more accurate description of Member States'
possibilities and more details under which circumstances these possibilities can be used.
The common market, which ensures the free movement of goods and minimizes trade
restrictions, is one of the major achievements of the EU. The internal market will not be
affected by measures taken by the Member States according to the Commission's proposal, as
trade restrictions are explicitly prohibited, and only measures to restrict or ban the cultivation
are allowed. Some Member States argued that a ban in certain countries might affect the
competitiveness of the farmers due to the different circumstances caused by the possibility of
other farmers to use GMOs and that leads to a distortion of the internal market. However,
different environmental conditions which have a major impact on agriculture do always exist
within Europe, e.g. the climatic conditions in Spain and Austria lead to a different agricultural
productivity, and therefore the comparatively small impact caused by the use or non-use of
GMOs will most likely not lead to a major shift in the internal market.
Article 191 TFEU allows the Member States to invoke safeguard clauses in order to protect the
local environment. However such safeguard clauses are to be notified to the European
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Commission, which needs to agree on the measures. As the proposal for a new regulation by
the European Commission excludes all justifications referring to risks to the environment, this
article can not be used to invoke restrictions or bans on GMO cultivation.
Possibilities according to WTO
In principle the new regulation does not restrict the trade in seeds or plant propagation
material, and is therefore in conformity with WTO rules. However, measures taken by the MS,
especially if a ban on cultivation in the whole territory of a MS is invoked, this might be
interpreted as a restriction to trade. Therefore it is advisable to justify the measures following
WTO rules. This might also be important because additional arguments are often not
recognized in the dispute settlement process, where usually the ruling is based on the original
line of arguments.
As all grounds related to health or environmental effects are already excluded on an EU-level,
this can also not be taken into account on a WTO level.
Justifications which are following the SPS or the TBT agreement will be hard to find as the main
protective goals, health and environment, are already excluded and the remaining issues may
be addressed by coexistence measures.
However, according to GATT there are possibilities to restrict or ban the cultivation/trade of
GMOs. Article 3 does not allow any measures which are discriminatory, i.e. beneficial for
national production, and which are not proportionate to the goal to which they are aimed at.
In addition it has to be shown that GMOs are different from conventional crops. This could also
be interpreted that all measures which fulfil these criteria are allowed. The main problem with
this argumentation is that other measures than a ban, might have the same effect. Buffer
zones might, for example, be as effective in protecting organic farming as a total ban.
Exceptions according to GATT Art. 20 are possible in case the measures are necessary to
protect public morals or to be in compliance with (national) legislation. The first point, which
has been discussed in Dispute Settlement cases, is that the measures need to be necessary,
and that no other possibilities exist, to reach either one of these two goals. Second the
definition of public morals, given by the Panel and confirmed by the Appellate Body in the case
US:Gambling (see above) is rather narrow. As there are no specific cases of interpretation of
‘public morals’ related to GMOs at the WTO level, it remains an open question how this
definition can be applied for the cultivation of GMOs. It also has been shown in WTO cases in a
ruling of the European Court of Justice that negative effects on public morals are hard to
prove, and even if the WTO recognized that this might be a reason for justification, the
European Court ruled that public opinion can not justify measures by a MS which are not in
line with the harmonized EU procedures and legislation. Existing legislation needs to be in line
with EU legislation and therefore it is difficult to justify that special measures are needed to
fulfil its provisions, which are not already covered by Art. 26a of Directive 2001/18/EC.
Conclusions with regard to an Austrian position
It can clearly be seen from the relevant legislation, i.e. the Directive 2001/18/EC and the
related Commission Recommendations, as well as the WTO agreements (GATT, TBT, SPS) that
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the possible grounds for a justification of a restriction or ban on the cultivation of GMOs
according to the Proposal by the European Commission (new Art. 26b) are rather limited.
Agricultural and economic issues can be dealt with coexistence measures according to Art 26a
of Directive 2001/18/EC, which are already in place for several years. The new guidelines
included in the Commission Recommendations allow for even stricter rules, such as bans on
cultivation in large areas. These new provisions and possibilities need to be taken into account
when revising or implementing the respective legislation of the Bundesländer (Federal
Provinces). This will allow regional bans of GMO cultivation, if such a measure can be justified
with the protection of organic and conventional farming. Given the agricultural structure in
Austria, this might be achievable.
Given that measures can not be based on grounds based on possible negative effects on the
environment or human health, other aspects like socio-economic effects or ethical reasons
might be used as a basis for restrictions or bans of GMO cultivation. It also needs to be
mentioned that so far the intrinsic value of an intact environment and biodiversity, as it is also
mentioned in the preamble of the Convention on Biological Diversity (UN CBD 1992) has not
been discussed in the context of possible justifications. However, none of these are mentioned
as possible justifications in Article 20 of the GATT, and therefore, though relevant in an EU
context, might not be sufficient at the WTO level.
Measures based on the necessity to protect public morals, are hard to justify and the link to
GMO cultivation is not straightforward. Cases at the WTO and the European Court of Justice
have shown the difficulties for countries to uphold these reasoning. 'Public morals' is a rather
vague term and subject to interpretation based on national and cultural circumstances. This
makes it difficult to find a common understanding, especially on effects of GMO cultivation on
public morals. According to the European Court of Justice public opinion can not be used to
justify a measure which contradicts EU legislation. However the Court admitted that ethical
arguments if well founded could be an issue. Given this situation and the lack of a precedent,
which would allow a clear interpretation of 'public morals' with regard to GMO cultivation, it
would afford a very thorough argumentation to justify a nation wide ban on GMO cultivation
with the protection of public morals.
Finally, the most appropriate reasoning would be the one based on scientific grounds related
to health or environmental effects taking into account the regional aspects. This would be in
line with the principle of decision making with regard to GMOs to be based on science, and
also be in line with the provision as laid down in Art. 23 of Directive 2001/18/EC. It also would
enable critical MS, like Austria, which have long term experience in GMO risk assessment to
keep their line of argumentation. Therefore, and considering the above outlined problems
with other possibilities of argumentation, it would be advisable to try to introduce a text in the
new Regulation, which allows - in line with Art. 23 of Directive 2001/18/EC - to take new
scientific evidence, including health and environmental effects, into account, when deciding on
measures like restrictions or prohibitions of GMO cultivation.
16
References
References
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Gambling and Betting Services, (WT/DS285/AB/R)
Appellate Body Report (2008): United States - Continued Suspension of Obligations in the ECHormones Dispute (WT/DS320/AB/R)
Appellate Body Report (2010): China - Measure Affecting Trading Rights and Distribution
Services for Certain Publications and Audiovisual Entertainment Products (WT/DS363/AB/R)
Commission Recommendation of 13 July 2010 on guidelines for the development of national
co-existence measures to avoid the unintended presence of GMOs in conventional and organic
crops. OJ C 200, 22.7.2010, p. 1–5
Consolidated version of the Treaty on the Functioning of the European Union. OJ C 115,
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Council Directive 2002/53/EC of 13 June 2002 on the common catalogue of varieties of
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Council Directive 2002/55/EC of 13 June 2002 on the marketing of vegetable seed. OJ L 193,
20.7.2002, p. 33–59
Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the
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Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down
a procedure for the provision of information in the field of technical standards and regulations.
OJ L 204, 21.7.1998, p. 37–48
European Commission, Proposal for a Regulation of the European Parliament and of the
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restrict or prohibit the cultivation of GMOs in their territory, Brussels, 16.07.2010
European Court of Justice (2009): Judgement of the Court (Second Chamber) of 16 July 2009
"Genetically modified organisms – Seed – Prohibition on placing on the market – Prohibition
on inclusion in the national catalogue of varieties – Directives 2001/18/EC and 2002/53/EC –
Reliance on ethical and religious grounds – Burden of proof", Case C 165/08, the European
Commission vs. Republic of Poland.
Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September
2003 on genetically modified food and feed. OJ L268, 18.10. 2003, p 1-23.
UN CBD. (1992). United Nations Convention on Biodiversity. Nairobi: United Nations
Environment Programme.
WTO (1986): General Agreement on Tariffs and Trade, Geneva
WTO (1995): Agreement on the Application of Sanitary and Phytosanitary Measures, Geneva
WTO (1995): Agreement on Technical Barriers to Trade
17
Im Juli 2010 hat die Europäische Kommission einen
Vorschlag für eine Verordnung vorgelegt, die vorsieht,
dass die Mitgliedsstaaten den Anbau von GVO auf
ihrem Territorium einschränken oder verbieten
können, dies aber begründen müssen. Diese
Begründung muss einerseits den Verträgen der
Europäischen Union und andererseits den Vorgaben
der internationalen Verträge, vor allem der WTO
Abkommen, entsprechen.
Das vorliegende Gutachten erörtert den status quo und
mögliche Lösungsansätze.
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