Austrian province loses test case for regional ban on GMOs

EU governments refusing to apply the EU legal regime governing genetically modified organisms (GMOs) suffered a further set back on 5 October 2005 when the European Court of First Instance (CFI) threw out the joint attempts of the Austrian government and an Austrian province to challenge the EU GMO regime on various procedural grounds and 'technicalities' as well as on the basis of the elusory concept known as 'the precautionary principle'.¹

It is the first case of its kind to come before the EU judiciary and it confirms the limits for national/regional restrictions on GMOs. This briefing looks at the reasoning of the CFI in this judgment and comments on EU-level initiatives to deal with issues arising in how GM farming can co-exist alongside both conventional and organic farming.

The Austrian draft ban

Back in 2003 Austria notified the European Commission of its intention to institute a three-year blanket ban on the deliberate release of GMOs into the environment in the Province of Upper Austria known as the Land Oberösterreich.² Austria referred to a scientific study—the Müller study—as a scientific basis for the ban; the study having been published after the entry into force of the 2001 directive on the deliberate release into the environment of genetically modified organisms of 17 October 2001³ ('the 2001 Directive').

This was the first attempt by a Member State to establish a GMO-free zone within its national territory. In 2003 the European Commission rejected the Austrian proposes measures.⁴ The Commission summarises the rationale and content of the measures as follows:

'The use of genetically modified organisms (GMOs) in agriculture and forestry, and in crop farming in particular, is not, according to current scientific knowledge, free from risk with respect to either the maintenance of GMO-free agricultural production (co-existence) or the conservation of the natural environment (biodiversity).

The aim of this Act is to safeguard organic farming as well as traditional agricultural crop and animal products from GMO contamination (hybridisation). In addition, natural biodiversity, particularly in sensitive ecological areas, as well as genetic resources in nature, including those of hunting and fishing, are to be protected from GMO contamination.'

While this all sounds quite plausible, the measures failed to fulfil the procedural and scientific requirements of the legal regime governing GMOs as well as the general EU law governing the introduction of national safeguard measures that affect trade in the Internal Market.

What room for national safeguard measures?

Under the 2001 Directive it is only possible to restrict GMOs on a case-by-case basis—see Article 23. Austria sought to institute a blanket ban and thus relied on the general Internal Market safeguard clause contained in the Treaties. Article 95(4) to (7) of the European Community Treaty allows certain national measures on the basis of major needs or relating to the protection of the environment based on new scientific evidence of a problem specific to that Member State arising after the adoption of the EU law question. However, such national measures are subject to a notification and authorisation procedure whereby the European Commission decides the legitimacy of the measures.

The contested EU law

Under this notification and authorisation procedure, the European Commission rejected Austria's draft ban as inadmissible because it could not be justified according to the explicit conditions set out in the Internal Market safeguard clause.

It was this Commission decision that Austria and the upper Austrian province were challenging. They argued that the procedure by which the European Commission assessed the scientific basis for the measures infringed the applicants' right to be heard, in particular because the applicants were not included the Commission's consultation of the European Food Safety Authority. They also argued that the Commission had failed to give sufficient reasons for its decision and that in any case the draft ban, contrary to the conclusions of the Commission, fulfilled the conditions required for Internal Market safeguard measures. Finally, the applicants attempted to invoke the precautionary principle referred to in Article 174(2) of the EC Treaty, which enables Member States to take preventive measures in the interests of protecting the environment.⁵

Limits to the right to be heard during safeguard and scientific assessment procedures

The CFI confirmed previous case law⁶ that the right to be heard does not apply to the notification and authorisation procedure for Internal Market safeguard measures. Such a procedure has to be speedily concluded, so opening it up to prolonged exchanges of information and observations would clash with that objective. The CFI saw no difference between draft measures or measures that have actually been adopted. It emphasised that the Member States cannot unilaterally adopt measures contrary to EU Internal Market laws, such as the 2001 Directive—and correctly so because to allow this would render the establishment and functioning of the Internal market ineffective. The CFI also made clear that the right to be heard does not apply to the procedure according to which the European Food Safety Authority (EFSA) is consulted by the European Commission.

The burden of proof lies with the applicant

As for the applicants' argument that the Commission has not stated its reasons, the court disagreed outright: 'In the present case, the Commission has set out its arguments in a detailed and comprehensive manner, enabling the addressee of the contested decision to be aware of its factual and legal grounds and the Court to review the lawfulness of the decision' (para. 55.). According to the CFI, the Commission had fulfilled its obligations by disproving the 'new' nature of the scientific evidence provided in the Müller study—the Commission pointed out that the vast majority of sources referred to in the study predated the 2001 Directive and also that the Müller study did not sufficiently differentiate the Austrian region from other regions of the EU. Thus, the Commission did not need to explore whether the 2001 Directive provided sufficient environmental protection.

It is harder to introduce safeguard measures once a directive exists

It was not surprising therefore that the CFI also agreed with the Commission that the Internal Market safeguard measures were not justified by the applicants. In any application for Internal Market safeguard measures an important distinction has to be made between those national measures that already existed before the 2001 Directive and those introduced after the 2001 Directive. National measures that predate a directive can be taken into account in the drafting of the directive, while national measures that are introduced after the adoption of a directive jeopardise the functioning of the EU law.

For this reason the scope for introducing national measures is dependent on the existence of new scientific evidence and on the need to deal with a problem that is specific to that Member State. The applicants did not establish that the Land Oberöstereich had any scientific evidence for unusual or unique ecosystems that distinguished the Austrian region from Austria as a whole or other similar areas in Europe. The information put forward by Austria did not rebut the EFSA's findings and what information was submitted was too general to affect the concrete findings of the European Commission.

No need to discuss the precautionary principle

As for the precautionary principle, the Court considered that the Commission Decision was not incorrect. The plea that the precautionary principle has been breached was found to be 'irrelevant'. The applicants were contesting the Commission Decision on the basis of safeguard measures in the context of the Internal Market and the Commission had no choice but to reject the Austrian draft ban under the relevant information and authorisation procedures.

What next?

Austria now has two months to appeal to the European Court of Justice against the CFI ruling. This case however, concerned a blanket ban rather than specific instances of problems or contamination arising in organic production for example. It is still possible that regions in different Member States will declare themselves GMO free zones. Certainly for such safeguards to be accepted, new and justifiable scientific information will have to be available. But even where new scientific evidence does come to light, safeguard measures, whether justifiable or not, cannot be used as a means of arbitrary discrimination or a disguised restriction on trade between EU Member States. Any restrictions must be proportionate to the aim sought.

The other national safeguards

There is also the matter of the national safeguard measures based upon the 2001 Directive itself⁷, reported on in Wragge & Co 'news&views' in June. These were put in place by Austria, France, Germany, Greece and Luxembourg and predate the 2001 Directive. They ban or restrict the marketing and cultivation or processing of specific Genetically Modified (GM) products which would otherwise be authorized under the EU regime set out in the 2001 Directive. In June 2005, a majority of the Member States effectively sanctioned these safeguards contrary to the Commission's proposal to have them lifted.

These national safeguard measures all remain in place despite the fact that they contradict the scientific risks assessment of the products and contrary to all attempts by the European Commission to have them lifted. According to the 2001 Directive such measures should not last for more than sixty days. Moreover, the Commission has followed all the procedural requirements and obtained the scientific risk assessment of the EFSA before clearing the products concerned.

Thus, the crisis in application of the existing EU GMO regime continues. However, it is now clear that CFI stands behind the European Commission's attempts to prevent the Member States from instituting legally unjustified national restrictions on GM crops and products. After all, the EU regime was adopted by the Member States after arduous negotiation and overhauled previous laws so as to better protect against risks for human health and the environment.

The network on co-existence (COEX-NET) forum

In the meantime, in June 2005 the European Commission established a network group for the exchange and coordination of information concerning co-existence of GM, conventional and organic crops.⁸ The forum will be known as COEX-NET. This comes amid growing demand by regional Ministers and Members of the European Parliament to have a greater say in the commercial cultivation of GM crops. COEX-NET is a forum for the exchange between Member States of information on results of scientific studies as well as on best practices developed within national strategies for coexistence. Currently the Member States are able to develop and implement their own management measures for coexistence of GM, conventional and organic crops. The parameters for national strategies are set out in a 2003 Commission Recommendation to this end.⁹ But the Commission is concerned that confusion over what is legally acceptable might lead to restrictions on GM products that cannot be justified under the EU regime. Further guidance can be expected on precisely what types of measures will be compatible with EU law

Notes:

1. Judgment of the Court of First Instance of 5 October 2005 in Joined Cases T-366/03 and T-235/04, Land Oberösterreich and Republic of Austria v. Commission of the European Communities, not yet reported.
2. Letter dated 13 March 2003 from the Austrian Permanent Representation to the European Union to the Commission of the Oberösterreichisches Gentechnik- Verbotsgesetz 2002, draft law banning genetic engineering.
3. Directive of the European Parliament and the European Council on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220, OJ 2001 l 106/1, as amended.
4. See Commission Decision 2003/635 relating to national provisions on banning the use of genetically modified organisms in the region of Upper Austria notified by the Republic of Austria pursuant to Article 95(5) of the EC Treaty, OJ 2003 L 230/34.
5. This subparagraph reads; 'Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a Community inspection procedure.'
6. See Judgment of the European Court of Justice in Denmark v. Commission [2003] ECR I-2643 at para. 50.
7. See Art. 23 of the 2001 Directive, op. cit. n. 3.
8. See Commission Decision 2005/463, OJ 2005 L 164/50.
9. See Commission Recommendation 2003/556 on guidelines for the development of national strategies and best practices to ensure the co-existence of genetically modified crops with conventional and organic agriculture, OJ 2003 L 189/36.