Until 3 October 2015 EU Member States had the opportunity under new transitional procedures to ban the cultivation of GMOs which had already been authorised in the EU or which were pending authorisation. Nineteen Member States [1] formally requested such bans in all, or part, of their territories.

Under these transitional procedures, the request for a ban had to be put to the legal person who applied for, or who holds, the GMO authorisation (usually multinational agri-tech companies). This request could be made without providing any justification. If the GMO applicant/holder did not (or does not) respond to the application, then the scope of its GMO authorisation is (or will be) deemed to be restricted in line with the Member State’s request – effectively the ban is upheld.  But, the GMO applicant/holder can refuse to change the scope of its authorisation - i.e. refuse to agree the ban.

For those States who did not request a ban (at all or in time) or where the request for the ban was not or is not agreed by the GMO applicant/holder, these authorised or pending GMO varieties can under EU law be cultivated in these Member States. In such cases, if a Member States wishes to subsequently ban cultivation of these (authorised) GMOs, it will need to make a request under different provisions and provide “compelling reasons” to justify the ban.

Under new rules for all new applications for GMO authorisations, Member States will have to go through a similar two-stage procedure.

There is a concern amongst commentators that these new sets of rules will result in a complex legal patchwork across Member States, and that the cultivation bans may be open to challenge on the grounds of for example (a lack of) proportionality.

So far it appears that the GMO holders have not objected to the ban requests. However, it will be interesting to see whether this approach of agreement or acquiescence will last. Some Member States appear to have simply put in their requests as holding responses until the (GMO) issue is considered more fully. GMO holders may well therefore start to hold out, at least in respect of new applications, and force States to say what are their compelling reasons and fully justify their requests.

New opt-out rules: two bites at the (GMO) cherry

In our earlier LawNow, we provided some commentary on new opportunities available to Member States to apply to opt-out of or “ban” cultivation in their territories of individual, or groups of, GMOs (these changes became law on 2 April 2015). There are transitional rules for authorised or pending GMO applications, but otherwise Member States must use the new two-stage approach: (1) pre-authorisation; and (2) post-authorisation. These procedures are set out briefly in the box below.

Foreseeable issues

Although these legal bans may give some certainty as to where GM crops currently can (and cannot) be grown, they may cause issues of cross-border contamination and liability. Also, given that each Member State can choose which variety or varieties to “ban” and to what extent, there may be additional complexities where there are bans in respect of different varieties of GM crops. Coupled with the much wider implications of proposed GM product importation bans (which are governed by a different legal regime and subject to on-going negotiation), a very complex picture may arise with differential standards between or within Member States.

There is potential that state-wide bans will be open to legal challenge, for example on the grounds of (lack of) proportionality: for example, Germany had originally proposed bans limited to particular German states but some commentators criticised this as “patchwork” and complex, and potentially open to challenge (as disproportionate). On 25 August 2015, Germany’s Agriculture Minister confirmed that unless there was any objection from any of its state authorities, Germany would also apply for a nation-wide ban.

UK

Taking the UK as another example, the authorities acting for Scotland, N. Ireland and Wales are publicly against GM cultivation (and have requested bans), whilst England remains in favour (and has not). Scotland and N. Ireland have openly stated that a reason for their respective requests is to maintain their “clean and green brand[s]”. Scotland in particular cited potential risks to it £14bn food and drink industry as rationale for the ban.

Other differences between these countries’ approaches to GMOs are enshrined in statute: for example, England and N. Ireland allow “state of the art” and permit defences in their environmental damage (liability) regimes where damage is caused by an activity involving GMOs, whereas Scotland and Wales do not.

A risk that some commentators cite of the position adopted in Scotland, is that Scotland may lose some of its valued biotech capabilities to other regions of the UK or other Member States. In a bid to allay these fears it has been reported that there will be no legislative move in Scotland to curtail research using GM technology (including into GM crops) via contained use procedures.

Wider consequences

Clearly the EU has not been able to determine an EU-wide position for or against GM cultivation. There again this is not the only issue upon which Member States can adopt differing positions. The lack of a positive EU-wide outcome is a disappointment to large pro GM commercial players in the EU, US and elsewhere. America’s chief trade negotiator in the on-going Transatlantic Trade and Investment Partnership (TTIP) talks expressed his “disappointment” with the (GMO pending importation) decision, and observed that “dividing the EU into 28 separate markets for the circulation of certain products seems at odds with the EU's goal of deepening the internal market”.

Click here to view table.