Last week the Scottish government announced that it intended to ban GMOs in Scotland. This makes Scotland the first to indicate their intent to use this new Directive since its implementation in April 2015. In this post we will review the main legislative changes and point out some of the main implications that the new Directive could entail.
The new EU Directive on GMOs came about due to the protracted social controversy that agricultural biotechnologies have generated. For many years, several Member States (MS) have expressed antagonistic opinions on the use of GM crops in their national territories, despite their approval at the European level. For instance, Austria, Hungary, Greece, Luxemburg, Germany and France have all used a clause in the previous legislation to implement national bans against the cultivation and commercialization of GM crops (even though Germany authorized the commercialization of a GM potato for industrial uses, which was later withdrawn). At the same time, countries such as Spain (with by far the highest surface cultivated in GM crops in Europe), Czech Republic, Slovakia, Portugal, Romania and Poland, have all supported the use of these biotechnologies inside their national boundaries.
Considering the intense debate and polarization of MS on this matter, the change of legislation was motivated by the need to find a way through the legal stagnation in which approvals at a European level were continually being challenged and unsupported by several MS.
The main aspects of the new Directive and the changes entailed are:
- Firstly, it is important to note that the new legislation will only affect the cultivation of GM crops, not the import or the transboundary movements of GM crops inside the EU (although there is a draft of a similar new Directive on GM imports now circulating for discussion). This means that the new Directive will neither affect GM experimental fields nor the contained use of GMOs.
- The new Directive allows MS to ban or restrict an ‘event’ (namely the concrete genetic modification for which approval is being sought) on the basis of socio-economic types of criteria to protect non-GM products (e.g. because they conflict with a MS agrarian policies, environmental policies, land use planning etc). Note that these types of criteria were not possible to use as justification for a ban under the previous legislation.
- The Directive establishes a two-step procedure: first, a MS (or a region) can apply to the Commission to be excluded from the scope of the authorization. In the case that the organization applying for the permit for cultivation of the ‘event’ (e.g a biotechnology company) does not accept this exclusion, the MS will then have to justify its request based on the aforementioned criteria, and make its arguement in a “reasonable, proportional and non-discriminatory” way.
- The European Parliament also used the new Directive as an opportunity to try and establish binding co-existence measures between GM and non-GM crops for all the countries in which GM crops are cultivated. This proposal, however, was finally dismissed and the current Directive only mentions that certain coexistence measures – without saying which ones – should be established in bordering areas between a country authorizing GM crops and a country in which its cultivation is banned or restricted.
- This procedure can only be initiated once the event has been assessed positively according to the usual EU risk assessment process, which is narrowly restricted to questions of quantifiable ‘scientific’ risk. This approach excludes and ignores all aspects related to the social, political and ethical dimensions of GMOs from the formal evaluation of GMOs at the European level. Indeed, the new Directive arguably acknowledges and seeks to handle the face that it is exactly these dimensions and their exclusion from the formal risk assessment process that has generated the fierce disagreements and debate.
The main implication of this change in the European law may be a likely increase in the uptake and use of GMOs in Europe and a deepening of the polarization concerning their cultivation. While there are countries that might apply for exclusions or bans, it is likely that in many other countries, like Spain, the adoption procedures will accelerate. Thus, by dividing the decision-making mechanisms on the introduction of GM crops in Europe, any collective initiative to politically handle one of the main technoscientific controversies in this century beyond the realms of the nation-state, is deeply weakened.
Furthermore, the legal framework established by the Directive is not particularly robust and there are many unknowns related to the practical implications of its implementation: Will biotechnology companies be able to sue a MS (or region, as in the case of Scotland) aiming to ban GM crops, e.g. under the auspices of the WTO? What role would the courts of arbitration that are being negotiated in the Transatlantic Trade and Investment Partnership (TTIP) have, especially if there is no agreement between the country or region aiming to ban or restrict GMOs and a company that applies for an authorization for commercialization?
Finally, it is also not clear what kind of justifications – nor what type of knowledge or evidence – will be considered to be relevant, valid and sufficient to support a ban when there is limited empirical data on the social and economic consequences of GMOs, especially in the so-called Global North. In this sense, once again, it is significant to highlight the importance of what the Agri/Cultures project is seeking to do in generating and visualizing relevant empirical knowledge that can allow an assessment of the socio-economic and ethical aspects of GMOs. Such work can help to pave the way to evolve towards more robust, more inclusive, more responsible, more holistic and more democratic decision-making processes, which take into account the full range of socio-ecological concerns being expressed by civil society.