Growing GM crops 'could pose a threat to public order'
Jennifer Rankin
European Voice, 3 February 2011
http://www.europeanvoice.com/article/imported/growing-gm-crops-could-pose-a-threat-to-public-order-/70111.aspx

Public morals, public order and "historical heritage" might be under threat from genetically modified crops, according to the European Commission, which has proposed that these issues could be cited by member state governments as grounds for imposing a national ban on cultivation.

National experts and the Commission will discuss the full list next week (11 February), as part of the process of changing the rules of the European Union's system for approving GM crops for cultivation. Since the draft directive on GM cultivation was published last June, talks between the EU institutions have become entangled in legal issues, and several member states doubt the robustness of the Commission's proposal.

The plan, presented by John Dalli, the European commissioner for health and consumer policy, is to give governments greater leeway to ban GM crop cultivation, as long as they do not base their decision on health or environmental grounds.
Legal challenges

Some countries that have reservations over GM technology fear that this get-out clause is too limited, and could expose them to legal challenges from outside the EU or from biotechnology companies. These concerns were reinforced when a recent opinion from the legal service of the Council of Ministers damned the proposal as contrary to World Trade Organization (WTO) rules and the EU's own single market.

In response, Dalli agreed in December to compile a list of acceptable reasons for a ban. A draft seen by European Voice gives seven reasons for GM bans: public morals; ensuring consumers can buy GM-free products; public order; town and country planning; preservation of farming diversity; cultural and historical heritage; and vaguely-defined "social policy objectives".

Thijs Etty, assistant professor of EU law at the Vrije Universiteit Amsterdam, suggested that the legal validity of the list was doubtful, especially if it was simply a recommendation and not enshrined in EU law.

He added that exemptions to internal-market rules often failed to provide solid legal defences. "The real difficulty will not be in finding suitable grounds, but proving that the measures are not discriminatory or disproportionate."

"Even if member states find perfectly acceptable grounds in the treaty, usually the court will strike it down on the basis of disproportionality and that is what will happen in this case."

Public morals might withstand a challenge in the WTO, although even that presented difficulties, he said. "The rest of the list is very unlikely to hold up in a WTO context."

Mute Schimpf at Friends of the Earth predicted that governments would ask the Commission to think again: "Until this list is changed we don't think that the Commission offers any legal certainty for member states."