Commission Proposal on GMOs endangers the Single Market

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On the 22nd of April the Commission adopted a proposal which will allow Member States (MS) to restrict or prohibit the use of genetically modified food and feed (GMOs) on their territory. The proposal is rather extraordinary since it allows the MS to restrict or ban the use of GMO as feed or for human consumption on the basis of nonscientific reasons. The scientific assessment of the safety for the humans, animals and the environment is undertaken by the European Food Safety Authority (EFSA) before the Commission can propose an authorisation for use in the EU. Consequently MS cannot invoke scientific reasons for an eventual ban. However MS will be allowed to ban the use of GMOs on purely political or arbitrary grounds. This is the first time the Commission has made a proposal, in an area where EU harmonised legislation already exists, which goes against the principles of the single market. Only scientific based concerns or the appearance of new scientific knowledge can be invoked to restrict intra-community trade. In the famous decision by the European Court of Justice, Cassis de Dijon, the principle was laid down; that a product that was marketed legally in one MS could not be prohibited to be marketed in another MS unless there were scientific reasons like human safety that could be invoked. The whole idea of creating a single market based on the White book from 1985 and the process of harmonisation of legislation carried out in the 90s has consequently been given a serious blow. Harmonisation has provided the legal certainty for trade inside the EU as well as for imports into to the EU; this proposal allows a MS to undermine legal certainty.

Commission justification

The Commission justifies the proposal on the grounds that the MS have consistently refused to take political responsibility for authorising GMOs through the normal regulatory procedure, by either rejecting or approving new GMOs. Consequently it has been left to the Commission to systematically approve new GMOs once EFSA gave its green light, thus forcing the Commission to take responsibility for political decisions that should, under normal circumstances, have been taken by the MS. Clearly an unsatisfactory state of affairs, given the controversy surrounding GMOs. In reality this has happened with the tacit collaboration of the MS opposing GMOs sending the responsibility conveniently to the Commission to take the unpopular decision. This has led to a change in the legislation on GMOs by which MS can ban the planting of GMOs on their territory (ban on free release into the environment). To some extent such a ban could be justified if, as an example, you were concerned about a significant organic production you wanted to protect, where cross pollination with GMOs might endanger the organic status. Enforcing safety margins (distance) between organic and non-organic producers should however be sufficient to prevent this from happening in any widespread manner. This piece of legislation, although in breach of the Single Market, should not have any serious intra-community trade consequences since it only inhibits the sale and trade of GMO seeds in some MS affecting a few multinational seed companies, like Monsanto.

Consequences of the Commission proposal

However, extending a ban on GMOs to food and feed could have far-reaching consequences. The EU production of meat and milk is highly dependent on the import of protein rich ingredients like soya beans and meal from big suppliers like USA, Brazil and Argentina where there is a widespread and growing use of GMOs in the production of soya beans. The EU imports, according to FEFAC (European compound Feed Manufactures), 75 % of its needs of soya beans and soya bean meal, accounting for 30-35 Mill tons annually. It is obvious that the EU could not sustain its big and economically very important production of meat and milk if a ban on GMO feed were to be widespread. A MS with a significant animal production would have to think twice about using such a faculty, even in light of public opinion pressure, since a ban would destroy its industry. But what about the MS which have already taken national measures to restrict the use of GMOs beyond the ban on planting? If such a MS were to ban use on their territory, what would happen to animals which have been fed GMOs, to their meat, milk and milk products if somebody wanted to export to such a MS with a ban? Would the MS ban the import with the consequent breakdown in trade and the single market? The Commission says in its proposal that the measures “would have to be compatible with the rules on the internal market, and in particular with article 34 TFEU, which prohibits measures that would have an effect equivalent to a quantitative restriction on the free movement of goods. MS making use of this proposal will therefore need to justify the measures introduced on grounds in accordance with article 36 TFEU and the case law of the court of justice on overriding reasons of public interest “. Article 36 talks, amongst other things, about “public morality “. In the footnote to this sentence there is also reference to the Cassis de Dijon judgement. In the legal text there is no answer to the question of what MS can or cannot do in terms of enforcing a ban on food and feed on their territory. It only says that the MS have to submit a justification and the draft measures to the Commission where the Commission will consult the other MS and where the MS has to wait three months before putting measures in place. This leaves it completely open as to whether MS can take measures to restrict intra-community trade or not, and how such a ban on food and feed would actually be enforced on their territory without this having consequences for the single market. By hiding behind elegant references to article 34 and 36, avoidance of disguised restriction on trade, proportionality and nondiscrimination, the Commission is sending the Black Peter to the MS wanting to introduce a ban.

Risk to the Single Market

Imagine a situation where a MS introduces a ban. Would such a MS interfere with the trade in meat and milk from animals which have been fed with GMOs, and what would be the consequences for the activity of food companies and supermarkets etc.? Would a MS have to introduce controls at the border with other MS, thus reintroducing border controls or would the controls take place at the level of the individual food company? What about products brought in from another MS by a citizen or from a person living in another member state with no ban? To enforce such a ban would require a considerable dedication of resources and manpower, which does not tally with the pressure on public budgets and the need for MS to make savings on public expenditure to respect the Growth and Stability Pact. The idea seems to be preposterous and uncontrollable. If, on the other hand, the Commission is acutely aware that a ban is neither legally nor practically enforceable, does this make the proposal an empty shell for the MS wanting to introduce a ban? The Commission’s Legal Service has apparently given its approval, obtaining formal cover with reference to the mentioned articles and provisons.

Real effect of the proposal

Maybe the whole idea is just to provide a basis/counterbalance for the approval of the 19 pending GMOs, which were approved the following day, and the other 30 or more GMOs in the pipeline, subject to EFSA scrutiny, which sooner or later will appear for approval.

No wonder the proposal has been met with such an outcry both from the NGOs against GMOs, Members of The European Parliament, European and national agricultural and food industry representatives, as well as our trading partners, like the USA, which says such a ban would breach our international commitments under the WTO. Having negotiated the SPS Agreement on behalf of the Commission under the WTO in the Uruguay Round I tend to agree.

The Environment Committee (COMENV), with the support of the Agricultural Committee (COMAGRI) in the European Parliament, is considering a motion to reject the proposal and asking for the Commission to withdraw it. The Commission would not be bound by such a motion, but given the divide amongst MS on the GMO issue and the position of the EP, passage of the proposal in the near future is not very likely.

Best outcome

Maybe the best outcome is a prolonged and protracted negotiation on the proposal, allowing a growing number of GMOs to be approved, which an efficient European agriculture will increasingly need in order to stay competitive and be sustainable. GMO seeds and crops are needed to obtain effective tools to cater for the growing problems with climate change, water shortages, environmental pressure and drop in biodiversity. GMOs will allow planting more draught resistant crops, allow for a reduction and more targeted use of pesticides and fertilisers, whilst maintaining or increasing yields.