GM proposal could face legal challenge
Parliament's lawyers concerned about plans, but Commission wants states to make own GM decisions
By Jennifer Rankin
European Voice
25.11.2010
http://www.europeanvoice.com/article/imported/gm-proposal-could-face-legal-challenge/69513.aspx

New doubts have emerged about European Commission plans to let member states make their own decisions about genetically modified crops, as European Parliament lawyers warn that the proposals could breach international trade law.

In a confidential opinion dated 17 November, the Parliament's legal service concludes that it is "not certain" that restrictions on planting GM crops based on grounds of public morals would stand up under international trade law. This follows an opinion from the Council of Ministers' legal service, leaked earlier this month, which concluded unambiguously that the proposal violated both trade rules and EU law.

The legal wrangling is a major headache for the Commission, which wants to end the stalemate over the approval of GM crops. Only two crops have been approved for planting in EU soils in 12 years. A paralysing division between anti-GM countries, such as Austria and Hungary, and pro-GM countries, such as the Netherlands and the UK, means that the EU has long been unable to find majorities for or against approving new crops for cultivation. As a result, contentious decisions have been pushed back to the Commission.

Ethical grounds

In an attempt to break the deadlock, John Dalli, the European commissioner for health, proposed that member states could ban or restrict GM cultivation as long as they did not base their decision on health or environmental reasons. Instead, Dalli suggested they could cite ethical or moral reasons.

Some governments have complained that this would offer inadequate legal protection if the law was challenged. The opinion from the Parliament's lawyers will reinforce these doubts: "The practical application of the proposal seems to be rather narrow," it concludes.

The Commission is currently shrugging off these concerns. A confidential briefing by the Commission's health department, drafted specifically to rebut the Council legal opinion, states that the outcome of a World Trade Organization challenge would be "very difficult to predict" and that Council trade fears are based on a "worst-case scenario" that is "far from certain".

Thijs Etty, a law professor at the VU University Amsterdam, is unimpressed by the Commission's defence. "These are hardly convincing arguments," he told European Voice. "If this were a legal impact assessment for an EU-level measure, rather than national bans, the Commission itself would not be satisfied with such vagaries."

Darren Abrahams, a partner at Steptoe and Johnson, a law firm, described the Commission's response as "a politically motivated document" that tries to "talk away [the fact] that the proposal is inconsistent with the treaties and the case law".

Both the biotechnology industry and anti-GM campaigners argue that the proposal fails to offer legal certainty for farmers who are seeking to grow the crops, or governments wishing to ban them.

The Commission says that it is ready to work with member states on a list of possible justifications for GM bans, such as public order, if they feared that growing the crops would provoke protesters to take direct action to destroy them.

Etty, who is also an adviser to the European Economic and Social Committee, which will publish an opinion on the GM proposal in December, said the Commission would be the winner if its proposal was implemented.

"The Commission is going to be more likely to adopt more GM proposals because it will have legitimacy [and] will feel less apprehensive to decide for member states," he said. He predicted that countries in favour of this technology would be able to grow more GM crops as a result.

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