On 23 July 2014, the 28 Environment Ministers adopted the Council position concerning the restriction or prohibition of the cultivation of GMOs in the territory of the Member States.
In practice, they were seeking to amend Directive 2001/18/EC on the deliberate release into the environment of GMOs, adding a new article widening the powers of the Member States to justify legally a national or regional ban on GMO cultivation. This amendment would also apply to the cultivation of GMOs authorised under Regulation (EC) No 1829/2003 covering food and feed containing or produced from GMOs.
The provisions of these two legislative texts establish a strict legal framework, authorising the marketing of GMOs only after approval based on a scientific assessment of the risks to human and animal health and to the environment.
It must be specified that the text under discussion concerns only the cultivation of GMOs for harvesting or on-farm research. In other words, GMO imports intended mainly for livestock are not covered by this legislation.
The compromise adopted by the Member States has entered into effect three years after the Parliament vote at first reading on 5 July 2011.
While such progress is welcomed by all, the underlying situation has become increasingly sensitive:
1. The European groundswell of opposition to GMOs is particularly pronounced with regard to their presence in food intended for human consumption, as reflected in the special Eurobarometer survey (no 354) of December 2010 regarding food-related risks, revealing that only 21% of Europeans concurred with the proposition that ‘GMO foods are safe for future generations’ (as opposed to 58% against).
An updated survey would be particularly welcome. It would very probably indicate that a large majority is still opposed to GMO cultivation in Europe.
2. In February 2014, the controversy surrounding TC1507 genetically modified maize, opposed by 19 governments out of 28, received intensive media coverage. Only five Member States (Spain, the United Kingdom, Estonia, Finland and Sweden) voted in favour of authorising this new GMO variety, leaving the Commission to take the final decision, which it has not yet done.
3. A backlog of applications has accumulated in the centralised EU authorisation system. In addition to the application for authorisation of TC 1507 maize, six other GMO authorisation procedures (five for maize and one for soya) are pending, a favourable opinion having been issued by the EFSA. Given the strong opposition of most of the Member States, the Commission is hesitating to put it to the vote.
4. It was against this background that the new Commission President Jean-Claude Juncker, outlining Commission policy to the MEPs on 15 July 2014, set out his intentions: ‘I also intend to review the current legislation authorising the use of genetically modified organisms. I consider it unacceptable that, under current rules, the Commission is legally obliged to authorise the import and processing of new GMOs, even in cases where a clear majority of Member States are opposed to their use’.
This was confirmed in the mission statement sent to the new European Commissioner responsible for health and food safety, who will be required to review, in the first six months of his term of office, the existing decision-making process applicable to GMOs.
The rapporteur must therefore take account of the new political climate in drawing up his draft recommendation.
In this, he has the joint backing of the European Parliament, most of the Member States and the new Commission President, who are anxious to ‘extricate’ the GMO issue from the morass of bureaucracy that is proving so exasperating to all concerned.
II. Objectives and limits of the Council common position
It should be remembered that the principal objective of the this modification to the legislative framework is to provide greater latitude and greater legal security to Member States wishing to prohibit in all or part of their territory the cultivation of GMOs authorised at European level. This is specified by the Council in the fifth recital.
While the Council has adopted a number of Parliament’s amendments thereby endorsing its objectives, it has at the same time introduced a procedure imposing fresh obligations on the national authorities.
A Member State is initially required to submit a specific request (paragraphs 1 and 2 of Article 26b (new) to an undertaking seeking to market GMOs in the EU (phase I) so as to ensure that the authorisation does not encompass its national territory.
It is only if this initial phase is unsuccessful and the request opposed by the undertaking that the single (phase II) procedure will be applied (paragraph 3 of Article 26b (new)), enabling a Member State to invoke legal justifications in a bid to prohibit GMO cultivation.
In other words, this involves two consecutive phases, the second conditioned by the first, instead of the procedure set out in the original Commission proposal as amended by the EP and which should remain at the core of the amended version of the 2001 Directive.
However, the Council’s version, which runs counter to the European Parliament objective in its vote of 5July 2011, gives the uncomfortable impression of putting the cart before the horse.
This was why the rapporteur tabled Amendment 24 to paragraph 3 of Article 26b, which is essential if recourse to the phase I procedure by a Member State is to be optional.
Another restriction of the rights of Member States is the strict two-year deadline for procedures to be initiated at national level to prohibit GMO cultivation once EU authorisation has been accorded.
The rapporteur fails to see the reasons for this and considers that ten years, the statutory duration of authorisation, would be an appropriate deadline. That is the reason behind Amendment 25 to paragraph 4 of Article 26b.
The compensatory procedure provided for in paragraph 5 of by Article 26b is therefore no longer needed and Amendment 26 accordingly seeks deletion thereof.
Furthermore, regarding the open-ended list of reasons which may be invoked to justify a ban on GMO cultivation, the rapporteur takes the view that the absence of specific examples weakens the legal framework and has accordingly tabled Amendment 24 closely resembling the text adopted by absolute majority at first reading, except that it includes five categories of justification:
• Environmental criteria in addition to those outlined by the EFSA at European level, relating to local or systemic aspects of GMO utilisation in a given agronomic context;
• Regional development criteria;
• Land-use criteria;
• Socio-economic criteria, for example the high cost of contamination for conventional and/or organic farmers;
• Criteria relating to agricultural policy objectives.
These criteria will give Member States the necessary flexibility to take suitable measures without altering or undermining current EU risk assessment procedures.
III. Other amendments by the rapporteur
At first reading, the European Parliament adopted 28 amendments in its modified proposal, most of which were uncontroversial or supported by an absolute majority. The rapporteur accordingly tabled a total of 33 amendments, including the principal amendments adopted at first reading and not included in the Council common position.
In view of this:
– It is necessary to reaffirm the legal basis chosen by the European Parliament relating to the environment (Amendment 1). This new legislation seeks to modify not only Directive 2001/18/EC but also Regulation (EC) No 1829/2003, where the request for authorisation from a company relates to cultivation and food or feed. While the legal basis relating to the internal market was selected for the 2001 directive, the, legislators selected no less than three, relating to agriculture, the internal market and public health, for the 2003 regulation.
The text also seeks to achieve a major objective: giving greater flexibility to Member States to prohibit GMO cultivation within their territory on a number of grounds, including environmental considerations, such as the protection of biodiversity, habitats and ecosystems.
– It is necessary to improve risk evaluation procedures. Amendment 3 seeks to ensure implementation of the conclusions adopted by the ‘Environment’ Council of 4 December 2008 calling for comprehensive and effective assessment methods, bearing in mind that insufficient account has been taken to date of the long-term impact of GMO cultivation.
The rapporteur notes with satisfaction that this matter is included in the provisions of the Council text, which nevertheless needs to be improved. Amendment 33 accordingly seeks to make EFSA guidelines binding.
– It is necessary specify compulsory measures to safeguard the coexistence of different types of cultivation.
That was the purpose of the amendment to Article 26a tabled in plenary in July 2011, which the rapporteur wishes to re-table with Amendment 21.
It is important to include in this legislation compulsory provisions requiring Member States to safeguard the coexistence of different types of cultivation and to prevent any cross-border dissemination, a requirement heartily endorsed by most European farmers.
Modifications have also been proposed to guarantee the transparency of the procedure to restrict or prohibit GMO cultivation and ensure that such major decisions are made public.
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