This chapter has sought to examine the Member States’ original possibilities to restrict or prohibit cultivation of authorised GM crops in their respective territories. In doing so the
provisions in Article 23 of the Deliberate Release Directive and Article 34 of the FFR and Article 114.5 TFEU were examined. Additionally, coexistence measures, which are allowed for under Article 26a of the Deliberate Release Directive, were treated.
Regarding the first three of these original provisions it has been shown that they share common ground in that they are all concerned with safety, i.e. risks to either the environment or the health.255
As such the provisions are all founded on a science-based approach, as national measures are to be based on new256 scientific evidence regarding these risks. The provisions also share that their
respective substantive conditions have been interpreted strictly by the Commission, the EFSA and the EU Courts. This has been the case for the degree and existence of risk for Article 23 and Article 34, as well as for the requirements on “new” evidence and specificity in Article 114.5 TFEU. It appears that the mentioned institutions stringently control the use of these provisions, and that divergent stances with regards to scientific uncertainty and varying views on existing data between Member States and the central institutions have been hard to accommodate. The Commission also relies heavily on the opinions of the EFSA in its decision-making.
Indisputably, a significant evidential burden lies upon Member States that want to invoke measures under these articles. In the context of authorised GM crops, thus far, not a single Member State has successfully provided new scientific evidence showing risk to environment or human health under Article 23 or Article 34. The same goes for Article 114.5 TFEU in the very limited number of cases it has been invoked to restrict GMO cultivation, as the cumulative substantive conditions have been interpreted so stringently.
However, in spite of the strict understandings of the substantive conditions and almost continual opposition from the Commission, several Member States have not hesitated to adopt restrictions on GM cultivation. With regards to the only commercially cultivated GM crop, the MON810, six Member States currently have safeguard and emergency measures257 in place. Notwithstanding the
Commission’s and EFSA’s constant opinions that Member States have not met the substantive
254 Varela 2010, p. 358.
255 However, the scope of their respective protected interests differ somewhat. Notably safeguard and emergency
measures under the GMO legislation are broader in their scope than Article 114.5, as the former two also cover protection of human health and in the case of Article 34 FFR, animal health.
256 It was shown that “newness” regarding the presented evidence is treated somewhat differently between for example
Article 23 of the Deliberate Release Directive and Article 114.5 TFEU, as the former explicitly allows for reassessment of existing information, though with the restriction that this is to be done on the “basis of new or additional scientific knowledge”. This essentially entails that Member States that rely on these provisions must put forward evidence for a new element to the original risk assessment regarding the risk.
257 Reminder: Austria, Hungary and Greece under Article 23 Deliberate Release Directive. Italy, Luxemburg and France
requirements in Article 23 and Article 34, the decision-making structure that accompany these provisions has permitted the same states to maintain them. The Commission has held that these measures, since they are not based on new or additional scientific information are not justified from a legal point of view.258Alternatively the Commission has not acted upon the notifications on the
measures. Or as is the case for coexistence measures the Commission has deemed the measures to be too small to actually conflict with trade. As will be shown in chapter 4.3 such an approach to ceoxistence measures is questionable in light of the CJEU’s case law on the free movement.
Thus, it can be concluded that in theory, the theoretical scope for Member States to derogate under these provisions is narrow. However, procedural rules and a lax approach from the Commission in some cases has allowed for Member States to keep many restrictions although being legally
questionable through not fulfilling the substantive conditions. This means that to a certain degree, the scope of the opt out possibilities is widened in practice, much against their intended use. The restrictions to the areas of environmental or human health protection mean that other concerns raised by GM cultivation are excluded under the safety provisions. As such, the legal possibilities to accommodate other national concerns post-authorisation under them are basically non-existent if they are deemed to be concerns regarding health or the environment. This was evidenced by Land
Oberösterreich where concerns about coexistence of organic agriculture and GM cultivation was
deemed to be concerns of a socioeconomic character, thus falling outside the scope of Article 114.5. One could of course hold that the this is only valid with regards to the substantive requirements, as for instance the Comitology rules in practice allow for other (or any) considerations to uphold restrictions.
Here coexistence measures under Article 26a has had and will have a role to play in terms of
substance of the concerns, albeit also coming with limitations to their scope. As such they allow for socioeconomic concerns to be used as reason that potentially restrict GM cultivation. The specific economical logic behind them and the fact that they are not intended to exclude GM cultivation, but rather facilitate harmonious coexistence between the three types of agriculture are important limitations. Furthermore, the general requirements on proportionality in the context of GM-free areas are also of great importance as will be shown further in 4.3. It is not certain that the Commission’s lax approach in this regard would be shared by the CJEU if a Member State’s extensive use of coexistence measures were challenged.
Overall, the narrowness of the scope of these provisions and the fact that national derogation measures could be kept thanks to procedural rules instead of what was allowed on substantial grounds were two of the reasons why the Commission came to propose the new Article 26b in 2010. We now turn to this new article to looks into the scope of it and see how it changes Member States’ overall scope to opt out of GM cultivation.