14 Use of genetically modified food and
feed
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; further information awaited; drawn to the attention of the Environmental Audit, Environment, Food and Rural Affairs and Science and Technology Committees
|
| Document details | (a) Commission Communication reviewing the decision-making process on genetically modified organisms (GMOs)
(b) Proposal for a Regulation amending Regulation (EC) No. 1829/2003 as regards the possibility for Member States to restrict or prohibit the use of genetically modified food and feed on their territory
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| Legal base | Article 114 TFEU; ordinary legislative procedure; QMV
|
| Department | Environment, Food and Rural Affairs
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| Document numbers | (a) (36814), 8344/15, COM(15) 176
(b) (36817), 8356/15, COM(15) 177
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Summary and Committee's conclusions
14.1 EU legislation provides for the cultivation and use of genetically
modified organisms (GMOs), and of food and feed products containing
them, to be authorised on the basis of an assessment by the European
Food Safety Authority (EFSA) of any risks to human and animal
health and the environment. Authorisations are granted by the
Commission, but any such proposals are subject to a vote by Member
States, and, because of deep divisions among them, this has invariably
resulted in "no opinion" being issued, with the Commission
then being free to adopt the measures on its own initiative, if
it so decides.
14.2 This led to suggestions that Member States should
have the freedom to decide whether GMOs should be cultivated on
their territory, and the Commission brought forward in July 2010
a draft Regulation which would provide a greater measure of national
discretion as regards the cultivation of GMOs, whilst retaining
an EU authorisation system based on a scientific risk assessment.
In particular, it proposed that the relevant legislation 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 grounds
other than health and the environment, so long as this conformed
both to the wider provisions in the Treaties, and to the EU's
international obligations.
14.3 Our predecessors considered the proposal on
a number of occasions, commenting that it was somewhat unusual,
in that it sought to return to Member States certain powers in
relation to the cultivation of GM crops which were currently exercised
by the EU, and, to that extent was to be welcomed in principle.
However, they also noted that the UK in particular had consistently
placed considerable emphasis on the need for decisions of this
kind to be taken with strict regard to scientific assessment,
and that, if that approach was not to be undermined and thus set
an unfortunate precedent for other areas, it would be important
to be quite clear on what basis Member States would in this instance
be free to take their own decisions. They also drew attention
to these and other practical and legal issues in the light of
further information provided by the Government, and the documents
were debated in European Committee A on 14 June 2011.
14.4 The proposal was eventually adopted as Directive
(EU) No. 2015/42, which the UK supported, despite a number of
continuing misgivings over the prospect of national restrictions
being imposed on non-scientific grounds. However, as this applies
only to the cultivation of GMOs, the Commission undertook in 2014
to review the decision-making process for authorising their use
in food and feed, and it has now produced a Communication, which
is accompanied by a draft Regulation amending Regulation (EC)
No. 1829/2003 so as to allow Member States to restrict or prohibit
the use of genetically modified food and feed which has been authorised,
subject to certain conditions similar to those now applicable
to its cultivation.
14.5 The Government is currently considering the
implications of this proposal, but says that, as a general rule,
it would in principle welcome Member States being given more national
discretion in relation to EU decisions. However, its initial analysis
has identified a number of significant questions, including the
consistency of the proposal with the single market ethos, and
the principle of science-based decision-making; its potential
impact on trade in GM products into and within the single market;
and the setting of a general precedent for the grounds on which
products might be banned. It says that it will provide a supplementary
explanatory memorandum when it has completed its initial deliberations.
14.6 We have considered whether the proposed Regulation
complies with the subsidiarity principle, particularly in the
light of the two reasoned opinions submitted by the Spanish and
Dutch parliaments. However, we are satisfied that the proposed
restoration of some powers to Member States currently exercised
by the EU respects subsidiarity and should result in more decisions
being taken "as closely as possible" to the EU citizen.
We note, in any event, that the official deadline for the House
to submit a reasoned opinion expired on 23 June, before this Committee
was formed.
14.7 We consider that the proposal gives rise
to other issues, similar to those identified in relation to the
earlier proposal and which the Government intends to address.
We share these concerns, although we note that, in the event,
they did not prevent the UK from supporting the adoption of Directive
(EU) No. 2015/42. We will therefore await with interest the outcome
of the Government's deliberations on this latest proposal, and
we retain these documents under scrutiny. In the meantime think
it right to draw these documents to the attention of the Environmental
Audit, Environment, Food and Rural Affairs and Science and Technology
committees as well as the wider House.
Full
details of the documents:
(a) Commission Communication: Reviewing the decision-making
process on genetically modified organisms (GMOs): (36814),
8344/15, COM(15)196; and (b) Draft Regulation amending Regulation
(EC) No. 1829/2003 as regards the possibility for Member States
to restrict or prohibit the use of genetically modified food or
feed on their territory: (36817), 8356/15, COM(15)177.
Background
14.8 The 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, with
Directive 2001/18/EC dealing with their environmental release
and Regulation (EC) No 1829/2003 with the marketing of related
products, whilst Regulation (EC) No 1830/2003 sets out rules on
traceability and marketing. Requests for approval are assessed
by the European Food Safety Authority (EFSA) and by the scientific
authorities in Member States for any risks to human and animal
health and the environment, and, where formal approval for a product
has been granted, the provisions apply throughout the EU. However,
Member States can 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 they may also take measures to avoid the unintended
presence of GMOs in other products.
14.9 Approvals are granted by the Commission (previously
by Decisions adopted under the former comitology procedure, but
latterly by means of implementing acts in accordance with Regulation
(EU) No. 182/2011). Proposals for such measures are subject to
a vote by Member States in a Standing Committee, but, because
of deep divisions among them, particularly as regards the cultivation
of GMOs, this process has invariably resulted in "no opinion"
(with neither a qualified majority for or against) being issued,
and the Commission is then free to adopt the measure, if it so
decides.
14.10 This has led to suggestions that Member States
should have the freedom to decide whether GMOs should be cultivated
on their territory, and the Commission brought forward in July
2010 three documents — a background Communication, guidelines
for the development of national co-existence measures to avoid
the unintended presence of GMOs in conventional and organic crops,
and (most importantly) a draft Regulation[ 153]
which would amend Directive 2001/18/EC to provide a greater measure
of national discretion as regards the cultivation of GMOs, whilst
retaining an EU authorisation system based on science. In particular,
it suggested that, although the existing system was based upon
a scientific risk assessment, it was possible in principle to
differentiate between regions, if this could be scientifically
justified and so long as the matter was addressed in the authorisation.
14.11 At the same time, the Commission noted that
there were a number of other reasons — for example, consumer
attitudes — why Member States might wish to impose a ban,
but that the legislative framework did not provide them with the
necessary freedom to take these into account. It therefore proposed
that the relevant EU legislation 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 grounds other than health
and the environment, so long as this conformed both to the wider
provisions in the Treaties, and to the EU's international obligations.
However, this dispensation 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 free circulation.
14.12 Our predecessors first considered the proposal
on 8 September 2010, when they commented that it was somewhat
unusual, in that it sought to return to Member States certain
powers in relation to the cultivation of GM crops which were currently
exercised by the EU, and, to that extent was to be welcomed in
principle. On the other hand, they noted that the UK in particular
had consistently placed considerable emphasis on the need for
decisions of this kind to be taken with strict regard to scientific
assessment, and, if that approach was not to be undermined and
thus set an unfortunate precedent for other areas, it would be
important to be quite clear on what basis Member States would
in this instance be free to take their own decisions. These and
other practical and legal issues (including the choice of Article
114 TFEU as the legal base, and the compatibility of the proposed
measures with the EU's commitments under the World Trade Organisation
(WTO)) were subsequently addressed in Reports produced by our
predecessors on 11 May 2011 and 22 June 2011 in the light of further
information provided by the Government, and the documents were
debated in European Committee A on 14 June 2011.
14.13 This was eventually followed by a letter from
the Government on 24 June 2014, indicating that political agreement
had been reached at the Environment Council, which had been supported
by all Member States, except Belgium and Luxembourg. It added
that the proposal was not ideal, as the UK still believed that
decisions should be grounded on a science-based safety assessment,
and did not like restrictions being implemented for non-safety
reasons. However, the key issue for the UK had been to see an
end to the dysfunctional operation of the EU decision-making process,
together with the belief that allowing for greater national discretion
would make it easier to reach EU decisions authorising GM crops.
The current document
14.14 The proposed measure was eventually adopted
by the Council and European Parliament as Directive (EU) No. 2015/42,
which, subject to certain provisos,[ 154]
permits a Member State to restrict or prohibit the cultivation
of a GMO on all or part of its territory if there are "compelling
grounds" related to such areas as environmental policy objectives,
town and country planning, land use, socioeconomic impacts, the
avoidance of GMOs in other products, agricultural policy objectives,
and public policy. However, as the Directive applies only to the
cultivation of GMOs, the Commission undertook in 2014 to review
the decision making process for authorising the use of GMOs in
food and feed, and it has now produced two further documents —
(a) a Communication reviewing the decision-making process in this
area, and (b) a draft Regulation amending Regulation (EC) No.
1829/2003 so as to allow Member States to restrict or prohibit
the use of genetically modified food and feed.
DOCUMENT (A)
14.15 The Communication reiterates that draft Commission
decisions authorising GMOs, whether for cultivation or for food
and feed, have always resulted in a "no opinion" from
Member States, and that, notwithstanding the Commission's ability
then to proceed on its own account, only three GMOs[ 155]
have been authorised for cultivation since 1990, with resistance
to this having increased in recent years. Likewise, the number
of GM food products is small, reflecting general consumer opposition,
but, on the other hand, the Commission says there is a substantial
market in the EU for GM feed, notably through imports of
soya from countries (such as Brazil, Argentina and the United
States) where its cultivation is dominated by GMOs.
14.16 However, it notes that this has not been reflected
in voting patterns, with draft authorisation Decisions systematically
resulting in a "no opinion", suggesting that —
unlike other areas where EU comitology procedures apply —
Member States do not feel that the process enables them to address
their individual concerns in areas going beyond the health and
environmental considerations considered by the EFSA (leaving the
Commission to take decisions without their support). It also makes
the point that, although the Commission can take into account
"legitimate factors" other than those addressed by the
EFSA's risk assessment, the current legislation does not allow
it to use these to impose an EU-wide ban on products considered
safe by the EFSA.
DOCUMENT (B)
14.17 Against this background, and the steps which
have now been taken in Directive (EU) 2015/412 to address the
corresponding issues in relation to GM cultivation, the Commission
has proposed that Regulation (EC) No. 1829/2003 should similarly
be amended to allow Member States, for compelling reasons other
than the health and the environmental considerations assessed
by the EFSA, to restrict or prohibit the use on all or part of
their territory of GM food authorised at EU level. Any such measures
adopted by Member States would have to be reasoned, proportionate,
non-discriminatory, and compatible with the rules of the internal
market (in particular Article 34 TFEU prohibiting restrictions
on the free movement of goods), and would also need to be justified
on the public interest grounds set out in Article 36 TFEU and
relevant the case law of the Court of Justice. In addition, a
Member State would also have to provide specific justification
for the case concerned, taking into account the GMO in question,
the type of measure envisaged, and the specific national or regional
circumstances constituting grounds for the opt-out, and it would
remain bound by its international obligations, including those
arising from WTO rules.
The Government's view
14.18 In his Explanatory Memorandum of 4 June 2015,
the Minister of State at the Department for Environment, Food
and Rural Affairs (George Eustice) says that
the Government is currently
considering the implications of this proposal, and has yet to
reach a definite view. As a general rule, it would welcome the
principle of giving Member States more national discretion in
relation to EU decisions, but, at the same time, its initial analysis
has identified that the proposal could raise a number of significant
questions, including:
· its
consistency with the single market ethos, and the principle of
science-based decision-making;
· its
potential impact on trade in GM products into and within the single
market, in particular in a context where the UK is dependent on
imported GM animal feed; and
· its
potential impact on wider trade, in terms of setting a general
precedent for the grounds on which the use of a product or products
might be banned.
14.19 The Minister says that a supplementary explanatory
memorandum will be provided in due course when the Government
has completed its initial deliberations.
Previous Committee Reports
None.
153 (31800), -; see First Report HC 428-i (2010-11),
chapter 11 (8 September 2010), Twenty-eighth Report HC 428-xxvi
(2010-11), chapter 2 (11 May 2011), Thirty-fourth Report HC 428-xxx,
chapter 13 (22 June 2011) and Fifth Report HC 219-v (2014-15),
chapter 11 (2 July 2014). Back
154 Notably that the measure conforms with EU law, and is reasoned,
proportionate and non-discriminatory. Back
155 Only one (maize) product is currently authorised, but represents
only 1.5% of the land devoted to maize production in the EU. Back
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