Mary Dobbs, Lecturer in Law, Queen’s University Belfast

Up until April 2015, the decision of whether or not to allow genetically modified (GM) crop cultivation rested with the European Union, not individual nations or regions. However, Directive 2015/412 shifts significant power back to EU Member States, enabling them (and potentially their regions) to decide if they want to restrict GM crops within their borders. Germany, for instance, is already in the midst of discussions on whether to institute a nationwide ban or allow individual states (Länder) to decide. While relevant to all Member States, this shift is especially pertinent to those with strong internal divisions regarding GM crops, such as the UK.

EU Background

Current EU law mandates prior authorization for all GM crops. Once authorized at the EU level, the crop is automatically approved in all Member States. Restrictions are permitted only when justified by EU law, for example, if new scientific findings reveal legitimate threats to human health or the environment. Despite the EU-wide authorization, there’s no consensus among Member States on the cultivation of GM crops. These crops are frequently a point of contention due to the scientific unknowns and their very nature of modifying DNA. This raises concerns about societal and cultural values, trade, consumer and producer choices, environmental safeguards, health, and food security, without a universally accepted approach to GM cultivation. The current decision-making process can even lead to crop authorization against the wishes of some, or even a majority, of Member States, as exemplified by the Novartis BT176 case. This has resulted in various national and regional bans within the EU and the formation of a GM-Free Network, the legality of which is debatable under EU law.

In response to these ongoing disputes, the Commission, in 2010, proposed incorporating an opt-out clause into the primary legislation (Directive 2001/18). This clause would allow Member States to prohibit GM crops within their borders. This proposal, a notable example of deregulation within the EU, was meant as a compromise. It aimed to give Member States more control while encouraging them to lift bans based on safeguard clauses, thereby streamlining the authorization process. After lengthy negotiations, a political agreement has been reached, resulting in Directive 2015/412, effective April 2015, with major implications for all EU Member States and their regions.

Opt-Out Provision

The new Article 26b permits Member States to request notifiers to include geographical restrictions in any (re-)authorization notification, effectively excluding their entire territory or parts of it from the scope of the notification. If the notifier agrees, the matter is settled – the (re-)authorization will reflect the restriction until the Member State decides otherwise. However, even if a request isn’t made within the designated timeframe, or if a notifier denies the request, a Member State can still opt out of cultivating a specific GM crop. To do so, they must demonstrate that the restriction is necessary to protect a legitimate objective. While not exhaustive, the provision lists potential objectives, such as agricultural policy, land use, and environmental policy goals. Notably, objections based on conflicts with the EU’s environmental risk assessment during the authorization process are excluded. While this applies to future (re-)authorizations, there’s a transition period for currently authorized crops, presenting an immediate decision for Member States.

A UK Approach?

The opt-out might appear insignificant for the UK, given its official pro-GM cultivation stance. The UK views this compromise as a potential catalyst for streamlining the authorization process and facilitating future GM cultivation nationally. However, this viewpoint, primarily reflective of England’s stance, doesn’t represent the entire UK. While Northern Ireland remains divided on the issue, Wales and Scotland have clearly expressed their opposition to GM crops, advocating for GM-Free zones, a sentiment echoed by several localities across the UK. These regions hold the necessary devolved powers to support their stance.

While opt-out requests can be made for specific regions within a Member State, the decision ultimately lies with the Member State, not individual regions, even those with legislative power. Therefore, the challenge for Wales, Scotland, and other UK regions is to persuade the UK to make requests on their behalf within the given timeframes for each instance. Given the devolved powers these regions possess on environmental and agricultural matters, it is hoped that the UK would cooperate and submit requests promptly. Failure to act initially would require these regions to convince the UK to opt out based on a justifiable objective. This carries the risk of the European Commission, and potentially the Court of Justice of the EU, deeming the opt-out unnecessary. It remains to be seen how these internal discussions will unfold, but given the transitional arrangements, it’s crucial for both the UK and its regions to determine their strategies swiftly.

This leads to the question: what course of action should the UK and its regions adopt? Do the benefits of GM crops (for individual regions, the UK, or society at large) outweigh the potential advantages of maintaining a GM-Free zone? The answer is far from simple. Significant environmental or health hazards are unlikely, as crops undergo rigorous risk assessments before authorization. However, as with any agricultural practice, they can impact the environment, food production, and security. A more pressing concern is the UK and its regions’ desire to preserve non-GM crops. Maintaining the harmonious coexistence of compatible GM and non-GM crops in close proximity is difficult. Neither Great Britain nor Ireland are geographically vast. Northern Ireland must also factor in Ireland’s approach and manage potential cross-border issues regarding cross-pollination (contamination). The UK and its regions in Great Britain must also consider the broader implications for Great Britain as a whole and the potential for cross-pollination. Should the UK agree to the regions’ requests and seek restrictions on their behalf, significant coordination and robust coexistence measures are essential to minimize cross-pollination between regions. This need for a unified approach is why German regional agricultural ministers have been advocating for a national ban.

Conclusion

This analysis, while focused on the UK, applies to all EU Member States, particularly those with decentralized regions already part of the GM-Free Network. The coming months are crucial. Regions and their Member States must decide what requests to make of notifiers, whether to pursue opt-outs, and how to ensure coordination within and between Member States with differing approaches. The situation becomes more complex if this amendment indirectly paves the way for further EU authorization of GM crops, as this increases the likelihood of cross-pollination.

*See also: my German Law Journal article on ‘Legalising General Prohibitions on Cultivation of Genetically Modified Organisms’

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