In our earlier LawNow, we provided a brief overview of the European Commission’s negotiated proposal to allow Member States to decide whether to cultivate GMOs on their territories. On 4 December 2014, the European Parliament and Council agreed further important changes to this proposal. The new agreement in principle brings the EU a step closer to ending the four year GMO deadlock. However, opponents on both sides of the GMO debate have been quick to criticise. In particular concerns have been voiced about concessions concerning the role of biotech companies in the decision-making process and the ability of Member States to ban groups of GMOs on non-scientific grounds. The Commission on the other hand, is heralding the agreement as a great democratic success and one which paves the way for GMO cultivation in the EU from as early as Spring 2015.
The proposed amendments will affect not only the Directive 2001/18/EC on the deliberate release of GMOs, which sets out the fundamental EU GMO authorisation procedure, but will also apply to Directive 1829/2003 concerning food and feed containing or produced from GMOs.
The text of the agreement has not been published, but it reportedly introduces a number of changes since the Commission’s negotiated draft in June 2014. Key aspects include:
- the removal of the mandatory GMO applicant negotiation phase - previous drafts included a central role for biotech applicants in the decision-making process, but in the current draft, Member States do not need to make any prior request of the applicant before introducing GMO restrictions or bans;
- a newly-introduced ability for Member States to restrict or ban not only the GMO subject to authorisation, but wider groups of GMOs by reference to a crop or trait – this provides significantly wider discretion to Member States than previously afforded but it is not clear how this will work in practice;
- the option for Member States to justify GMO restrictions or bans on the basis of wider environmental and non-scientific grounds – in the current text Member States have more flexibility in justifying their decision to restrict or ban GMOs, including for example, for reasons of land use, town and country planning, socio-economic and “other legitimate” factors;
- two year objection window scrapped – Member States will now be able to introduce bans at any point during the full 10 year GMO authorisation period, and are no longer limited to doing so within two years of authorisation of a GMO; and
- mandatory co-existence and implementation of buffer zones – under the agreed text, Member States are required to adopt rules which ensure that GMO crops to do not contaminate other products, paying particular attention to prevention of cross-border contamination.
The agreed amendments introduce considerably more flexibility to Member States in terms of justifying restrictions or bans on GMOs as well as time in which to do this. Additional safeguards such as the requirements concerning co-existence measures and the removal of mandatory industry involvement may also provide further comfort to those opposed to GMO cultivation. However, concerns have been raised that the amended agreement does not provide legally solid grounds to defend bans made on the basis of environmental and socioeconomic grounds and that Member States may be left open to challenges under trade rules, particularly in light of the anticipated tripartite Transatlantic Trade and Investment Partnership. Similarly, pro GMO campaigners have hit out at the agreement for granting what they see as permission to reject modern and potentially beneficial technologies without scientific justification.
It is expected that the European Parliament and Council will formally endorse the agreement in principle over the coming weeks and that the legislation will be voted in plenary in January 2015, with Member States being able to exercise their extended rights on GMO cultivation from Spring 2015.