IS IT FEASIBLE OR EVEN NECESSARY TO BAN GMOS FROM EUROPE?

The first EU regulatory framework concerning GMOs dates from the 1990’s and now encompasses rules on traceability and labelling, cultivation, and finally dissemination of GMOs and by-products. To cope with an emphatic demand from civil society for reforms, the Commission drafted proposals to be discussed this year by EU institutions. After nearly one year of debate on the feasibility of a GMOs ban at a national level, the reform seems to leave a sour taste in the mouth of most of the stakeholders.

The first EU regulatory framework concerning GMOs dates from the 1990’s and now encompasses rules on traceability and labelling, cultivation, and finally dissemination of GMOs and by-products. To cope with an emphatic demand from civil society for reforms, the Commission drafted proposals to be discussed this year by EU institutions. After nearly one year of debate on the feasibility of a GMOs ban at a national level, the reform seems to leave a sour taste in the mouth of most of the stakeholders.

A questionable innocuousness of GMOs?

Since the 90’s there has been growing concern about Genetically Modified Organisms. Many arguments justify the use of GMOs, ranging from nutritional to environmental benefits (eg. the reduction of pesticides/fertilisers use, preventing further soil erosion). Nonetheless, the endogenous production of pesticides by the plant, which GMOs can cause, could damage biodiversity, with notably useful species as potential targets, like bees. Furthermore, it could have a negative impact on human health and safety, especially given the difficult assessment of their long-term effects.

Within the European Union, every GMO is subject to a toxicity risk assessment, carried out by the European Food Safety Authority (EFSA) and leading to the issuance of a report upon which the Commission decides to grant authorisation for cultivation and/or import and sale. This risk assessment and authorisation process is highly controversial.

Firstly, it is impossible to dispel every doubt about a GMO innocuousness. As the EFSA told us, the assessment takes the form of a comparative analysis with products that have been, so far, considered safe, meaning that “the safety of a GMO is always relative…” Nevertheless, the Authority assured us that no GMO was ever found harmful, though due to lack of available data some opinions were declared inconclusive.

Further, EFSA’s findings sometimes contradict other surveys. For instance, discrepancies appeared with the French Comité de Recherche et d’Information Indépendantes sur le génie Génétiques (CRIIGEN) report on the MON863.

It is impossible to dispel every doubt about a GMO innocuousness. As the EFSA told us, the assessment takes the form of a comparative analysis with products that have been, so far, considered safe, meaning that “the safety of a GMO is always relative…”

Last but not least, even when the EFSA acknowledges a potentially toxic GMO, the Commission retains  ultimate say on its use. The disproportionate power to decide on the fate of GMOs imparted to the Commission is exemplified by the  Maize 1507 scandal, approved by the Commission albeit a negative opinion by the EFSA and the opposition of a majority in the EU Council.

On these grounds, ministers of the EU Council in 2008 and the EU Parliament in 2014 called upon a review of the GMO risk assessment process, but without success.

To ban or not to ban, that is the question

Hitherto, States only had the opportunity to prevent GMOs’ cultivation by meeting the requirements of the so-called “safeguard clause” or by applying emergency measures, both intended to be temporary and requiring justification by new scientific data. Member States, responding to demands by civil society, tried for years to circumvent the stringency of EU legislation on the subject. Nine countries enacted GMO prohibitions under this legislation, but they were all declared scientifically unfounded by the EFSA.

In accordance with the subsidiarity principle and mindful of the wide condemnation of GMOs among Member States, the Commission has put reforms on the 2015 institutional agenda. In a nutshell, its core objective was to grant the possibility for Member States to ban GMOs from their territory by amending both cultivation and dissemination of GMO frameworks with “opting-out” clauses.

As for cultivation, a new directive enacted last spring has elicited harsh criticism from GMOs proponents as well as opponents. As a part of this directive, the applicant company is entitled to refuse a restriction decided on by a Member State. In such a case, measures taken by a State in application of a clause may be justified solely for serious reasons, such as agricultural or environmental objectives, spatial planning, land use, socio-economical impacts, coexistence (i.e. to avoid the presence of GMO in other products) or public policy.

A massive “jurisdictionalisation” of the conflicts is to be feared.

Before European jurisdictions, the burden of proof rests upon Member States, which can neither invoke public policy on their own nor for any reason conflicting with risk assessment findings, meaning their leeway is severely restricted.

According to MEP José Bové, there is little doubt that national measures will be challenged by GMO seed producers. They could therefore require international arbitration on the basis of international agreements, before the Investors-State Dispute Settlement under the up-coming TTIP, for example, or before the WTO dispute settlement, which refuses the vindication of a products’ ban based primarily on socio-economical arguments.

Moreover, the new directive does not prevent the free movement of GMOs within the EU and could trigger distortion of competition between European farmers depending on their location within the EU. The new purported “right to ban” would therefore be no more than a smokescreen. This very argument was also presented as a core reason for MEPs to reject the Commission proposal to extend the “right to ban” to the field of food and feed dissemination last October.

One may highlight the schizophrenia of the European Parliament, which endorsed the new directive on cultivation by a vast majority (480 pros, 159 cons) and now opposes a closely related proposal by an even broader majority (75 pros, 577 cons). Nonetheless, as the Rapporteur G. La Via (EPP) opined, the remaining ability of States to restrict sale or use of GMOs could lead to the reintroduction of border controls between pro and anti-GMO countries, jeopardizing the internal market.

La Via suggested that the decision on the feasibility of such a ban would be less detrimental if taken at the EU level instead of at the national one.  The question then arises whether a general ban at EU level would be opportune.

Towards a general prohibition?

According to Eurostat, 61% of EU citizens are against GMOs. Similarly, the vast majority of Member States (i.e. 17 countries and 4 regions) clearly expressed their will to ban GMOs from their territory through application of the new opt-out clause. In the political guidelines for the EU Commission (2014), J.C. Junker advocated for granting an equivalent political weight to both “the majority view of democratically elected governments” and “scientific advice”, “notably when it comes to the safety of the food we eat and the environment in which we live”. Well, numbers speak for themselves. In application of both democracy and precaution principles, one might consider that it is high time for the EU Commission to stop idle talk.

In application of both democracy and precaution principles, one might consider that it is high time for the EU Commission to stop idle talk.

Nonetheless, a general ban is unlikely to occur mostly for trade-related reasons, as the 2015 “à la carte” regime already faces opposition from biotech companies and EU trade partners. The former warned that the regime will strangle their industry, kill off investment, and could set a worrying precedent likely to spread. Beat Spath, director of the industry group Eurabio, told the Guardian that the EU stance “sends a negative signal for all innovative industries considering investing in Europe”. Already, the EU regime has discouraged a number of applicant companies, with 13 withdrawals of application the last 3 years, leaving only a single application for cultivation. Michael Froman, the American Trade representative, also exposed the lack of compatibility of such legislation with EU international commitments.

Nevertheless, the influence of global corporations shouldn’t endanger the democratic governance and the right and responsibility of decisions-makers to legislate with primary regard for the public interest.

Hélène Decottigny is student in Environmental and Energy Law at the University of Malta