European Scrutiny Committee Contents

11 Cultivation of genetically modified crops




COM(10) 380

Commission Communication on the freedom for Member States to decide on the cultivation of genetically modified crops


C(10) 4822

Commission Recommendation on guidelines for the development of national co-existence measures to avoid the unintended presence of GMOs in conventional and organic crops


COM(10) 375

Draft Regulation amending Directive 2001/18/EC as regards the possibility for the Member States to restrict or prohibit the cultivation of GMOS in their territory

Legal baseArticle 144 TFEU; co-decision; QMV
Documents originated13 July 2010
Deposited in Parliament16 July 2010
DepartmentEnvironment, Food and Rural Affairs
Basis of considerationEM of 19 July 2010
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentPolitically import
Committee's decisionNot cleared; further information awaited


11.1 Authorisation of the cultivation and use of genetically modified organisms (GMOs), and of food and feed products containing them, is laid down in EU legislation. More specifically, Directive 2001/18/EC[48] deals with the environmental release of GMOs, whilst Regulation (EC) No 1829/2003[49] governs the marketing of related products, and Regulation (EC) No 1830/2003[50] sets out rules on their traceability and marketing. Requests for approval are assessed by the European Food Safety Authority (EFSA) and by the scientific authorities in Member States in order to consider any risks to human and animal health and the environment, and, where formal approval has been granted (following a legislative proposal from the Commission), the provisions apply throughout the EU. However, Directive 2001/18/EC does enable Member States to take safeguard measures to prohibit or restrict the cultivation of GMOs on their territory if they can produce new evidence to demonstrate that an approved product presents a risk, and a number have chosen to do so from time to time (though in each case the Commission has sought — unsuccessfully — to persuade the Council to repeal the measures on the grounds scientific assessment had shown that no evidence had been produced to support the course of action taken). Directive 2001/18/EC also enables a Member State to take measures to avoid the unintended presence of GMOs in other products.

The current documents

11.2 Despite this, concerns have been expressed by the Council over the way in which this legislation has been implemented, and some Member States subsequently called on the Commission to prepare proposals to give them freedom to decide whether GMOs should be cultivated on their territory, whilst retaining an EU system based on science. As a result, and in the light of the political guidelines issued by President Barroso in September 2009 on the application of the subsidiarity principle to this area, the Commission has now brought forward these three documents — (a) a background Communication, (b) guidelines for the development of national co-existence measures to avoid the unintended presence of GMOs in conventional and organic crops, and (c) a draft Regulation which would amend Directive 2001/18/EC to provide a greater measure of national discretion as regards the cultivation of GMOs.

11.3 In considering whether there should be greater flexibility in this area, the Commission says that it has always considered that measures to avoid the unintended presence of GMOs in conventional and organic crops should be developed and implemented by Member States, and that it published in 2003 a Recommendation (2003/556/EC)[51] providing guidelines for the development of national strategies to ensure co-existence between GM and other crops, so as to avoid the potential economic impact of admixture, particularly in the case of organic crops where an associated price premium could be put at risk. At the same time, it comments on the extent to which Member States have adopted different aims and approaches regarding the permitted level of unintended GMOs in other crops, and it says that it would be appropriate to replace its 2003 Recommendation with a new one (document (c)) reflecting the experience gained and incorporating greater flexibility. Among other things, this would address transparency, cross-border cooperation and stakeholder involvement; proportionality; the level of admixture to be attained through national co-existence measures; the establishment of larger "GM-free areas"; and liability rules.

11.4 The Commission then considers the case for providing Member States with greater freedom to regulate the cultivation of GM crops on their territory. It suggests that, although the existing EU-wide authorisation system is based upon a scientific risk assessment, it is possible in principle for such an assessment to differentiate between regions, and it says that, if it is then concluded that the cultivation of a GMO raises particular regional concerns, these must be addressed in the EU authorisation, including restrictions or prohibitions, if these can be scientifically justified. At the same time, it notes that there are a number of other diverse reasons why Member States impose a ban — varying from agronomic (and land use) justifications relating to difficulties of ensuring co-existence, to political or economic considerations (including consumer preference), and to national policies on biodiversity (or other broad nature conservation goals) — but that the current legislative framework does not provide them with the necessary freedom to take these into account.

11.5 It therefore believes that the relevant EU legislation on GMOs should be amended to provide an explicit legal base authorising Member States to restrict or prohibit the cultivation of all or particular authorised GMOs in part or all of their territories on the basis of their specific conditions (though it stresses that this would not apply to the movement within the EU of GM seed, of food and feed produced from GM crops, or of imported material, which would remain subject to EU-wide rules relating to their free circulation). It also stresses that, since the conditions which seek to protect human and animal health and the environment are based on the assessment made by the EU in granting an authorisation, these cannot be amended. Consequently, any discretion exercised by Member States as regards cultivation would have to rest on other grounds, and would also need to conform both to the provisions in the Treaties, notably as regards non-discrimination on national grounds and the free movement of goods, and to the EU's international obligations, such as those under the World Trade Organisation.

11.6 The Commission adds that, in addition to these measures, it is analysing how to reinforce post-market environmental monitoring of GM crops, and is addressing a request from the Council to provide a report on the socio-economic implications of GMOs (which it will seek to finalise by the end of 2010), whilst the EFSA is updating its guidelines on environmental risk assessment. The Commission has also launched two major evaluations of the EU legislative framework, covering respectively GM food and feed and the cultivation of GMOs, which will be finalised in the last quarter of 2010, and followed by an analysis of possible policy changes by mid-2012.

The Government's view

11.7 In his Explanatory Memorandum of 19 July 2010, the Parliamentary Under-Secretary at the Department for Environment, Food & Rural Affairs (Lord Henly) notes that the proposal is consistent with the subsidiarity principle, in that it seeks to enable Member States to make their own decision on the commercial cultivation of GM crops. He also says that his Department and the devolved administrations are considering the implications of this proposal, following which an assessment of its impact on business will provided in a supplementary Explanatory Memorandum.


11.8 This is an interesting proposal, and a somewhat unusual one, in that it seeks to return to Member States certain powers in relation to the cultivation of GM crops which are currently exercised by the EU. To that extent, it is of course consistent with the principles of subsidiarity, and thus to be welcomed in principle. On the other hand, the UK in particular has consistently placed considerable emphasis on the need for decisions of the kind involved here to be taken with strict regard to scientific assessment, and, if that approach is not to be undermined in a way which could set an unfortunate precedent for other areas, it will be important to be quite clear on what basis Member States would in this instance be free to take their own decisions. In our view, the Commission's proposal leaves some room for doubt on this point, and we would therefore be glad if the further material which the Minister has promised to provide could address this particular concern.

11.9 Pending receipt of this further information, we propose to hold these documents under scrutiny, but in the meantime, we are drawing them to the attention of the House.

48   OJ No. L.106, 14.4.02, p.1. Back

49   OJ No. L.268, 18.10.03, p.1. Back

50   OJ No. L.268, 18.10.03, p.24. Back

51   OJ No. L.189, 29.7.03, p.36. Back

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