Background

The provisions on the cultivation of genetically modified organisms (GMOs) set out in EU Directive 2001/18/EC were seen as highly dissatisfactory by many observers in Austria, where the GMO issue has long been a sensitive one. Under this directive, GMOs for cultivation purposes underwent individual risk assessments before the European Commission decided whether they were eligible for placement on the European single market. Once a GMO was authorised, individual member states had limited options to prohibit, restrict or impede its free circulation within their territory.

Member states' concern about relying on the European Commission's decisions regarding the authorisation of GMOs for cultivation in their territories did not go unnoticed. Consequently, EU Directive 2001/18/EC was amended by EU Directive 2015/41/EC in order to provide member states with the possibility of restricting and prohibiting the cultivation of GMOs in their territories.

New two-staged procedure

The amendment introduced the possibility of member states opting their territories out of the geographical scope of a GMO authorisation issued by the European Commission. In addition, member states can prohibit or restrict the cultivation of GMOs without recourse to safeguard clauses and emergency measures.

The recently implemented Austrian federal laws BGBl I 2015/92 and BGBl I 2015/93 implemented EU Directive 2015/412/EC by introducing a two-staged procedure. First, Austria's federal minister for health can now demand during the authorisation procedure before the European Commission that the territory of Austria be excluded from cultivation. The applicant may then either adjust or confirm the geographical scope of its application. In the absence of confirmation, Austria will be excluded in the authorisation issued by the European Commission. In other words, silence equals consent.

In the event that the applicant confirms the geographical scope, Austria can then – in the second stage – adopt measures to restrict or prohibit the cultivation in all or parts of its territory. Because the competence for such measures lies with the country's provincial authorities, Austria's federal legislature enacted a framework law on genetic engineering (Gentechnik-Anbauverbots-Rahmengesetz). Article 3 of this framework law – which can be considered its main provision – foresees provincial legislatures having to implement measures to prohibit GMOs in their individual territories. Since such provincial laws must be non-discriminatory, proportional and reasoned, this provision lists compelling grounds for prohibiting the cultivation of a certain GMO. In the event that one or more of these reasons apply across the country as a whole, the framework law on genetic engineering enables the federal minister for health to issue a country-wide regulation. Article 3 of the framework law on genetic engineering was implemented as an act of constitutional law (as it is against the otherwise applicable constitutional division of powers) and thus highlights the broad political consensus in favour of prohibiting the cultivation of GMOs in Austria.

For further information on this topic please contact Christian Schmelz or Christoph Cudlik at Schoenherr by telephone (+43 1 5343 70) or email (c.schmelz@schoenherr.eu or c.cudlik@schoenherr.eu). The Schoenherr website can be accessed at www.schoenherr.eu.

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