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Ploughing Their Own Furrow: Subnational Regions and the Regulation of GM Crop Cultivation
Published online by Cambridge University Press: 27 October 2017
Abstract
This chapter provides a case study in regulatory multi-level governance within the European Union, with a substantive focus on the regime in place for the authorisation of cultivation of genetically modified crops. Whilst presenting a detailed account of the supranational level regime, it seeks explicitly to write in the subnational, regional dimension to our accounts of policy evolution in this highly controversial area. The chapter considers regions’ ‘upstream’ engagement in the policy processes at EU level, through judicial challenge to EU measures as well as attempts to influence supranational level legislative reform, which is currently ongoing. In this regard, it looks both at the role of regions within this process, and within the terms of the resultant legislation. In addition, the chapter considers regions’ ‘downstream’ engagement, in their implementation and application of the existing rules. As a number of regions have sought to declare themselves GM-free zones, this chapter explores the legality of such local and regional GM crop cultivation bans, as a matter of EU law. In short, the chapter contributes further to our understandings of the place held by regions within the EU system of governance demonstrating how regions may themselves be both legal and political actors of significance within the EU order, whose interests are not always congruent with that of their Member State.
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- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2011
References
1 Recent book length contributions on the regional dimension of EU governance include Weatherill, S and Bernitz, U (eds), The Role of Regions and Sub-National Actors in Europe (Oxford, Hart Publishing, 2005)Google Scholar; Panara, C and de Becker, A (eds), The Role of the Regions in EU Governance (Heidelberg, Springer, 2010)Google Scholar; Scully, R and Jones, R Wynn, Europe, Regions and European Regionalism (Basingstoke, Palgrave, 2010)CrossRefGoogle Scholar.
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10 Commission Decision 2010/135/EU [2010] OJ L53/11.
11 Extensive academic attention has been given to the issue of the role of law in mediating between these different claims. For an excellent starting point to the debate, see Lee, M, EU Regulation of GMOs: Law and Decision Making for a New Technology (Cheltenham, Edward Elgar, 2008)CrossRefGoogle Scholar.
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14 Though in the latter case, procedurally, a ‘one door-one key’ process is established, requiring the operator to make only one application under the later Reg, which will cover both cultivation and use as food and feed.
15 Conducted under part C of the Directive. Requests for authorisation for any other purpose than placing on the market, eg experimental planting alone, are conducted under pt B of the Directive.
16 Records must be made publicly available, see Case C-552/07 Commune de Sausheim v Pierre Azelvandre [2009] ECR I-987.
17 Depending on the division of competences within the State, there may in fact be more than one Competent Authority, as with the case of the UK, which has one in each of the home nations.
18 Art 15 Deliberate Release Dir.
19 Art 22 Deliberate Release Dir.
20 In the case of applications under the ‘one door, one key’ approach for both cultivation and food and feed use, the operator may chose to commence the process may start at this point.
21 Annex II, point A, Deliberate Release Dir.
22 Art 30 Deliberate Release Dir, which refers to Art 5 of Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, [2009] OJ L184/23.
23 Art 5(6) Comitology Decision 1999/468/EC.
24 Comitology Regulation, Reg 182/2011, [2011] OJ L55/13.
25 Comitology Reg, Art 6, ibid.
26 With the approval under the former regulatory regime’s Novel Food Reg 258/97, [1997] OJ L43/1 of a genetically modified maize, Syngenta Bt11, Commission Decision 2004/657/EC, [2004] OJ L300/48.
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30 T-293/08 BASF v Commission, Order of 9 June 2010, setting aside the action as devoid of purpose.
31 Commission Decision 2010/135/EU, [2010] OJ L53/11.
32 See further BASF’s 2010 Monitoring Report on Amflora Cultivation, available at ec.europa.eu/food/food/biotechnology/docs/post_market_monitoring_report_en.pdf.
33 Case T-240/10 Republic of Hungary v European Commission [2010] OJ C209/70. Four other states, Austria, Luxembourg, France and Poland subsequently sought to join the action.
34 The particular focus here is on the provisions under the Deliberate Release Dir regime, whilst scope also exists under the Food and Feed Reg regime, it is these provisions which are most commonly invoked.
35 These are in addition to the possibility of an EU-wide decision setting overturning a previous authorisation on the basis of new information under Art 20 Deliberate Release Dir.
36 Environment Council Minutes, 2 March 2009, 7042/1/09 REV 1, Spain, Finland, the Netherlands and UK voted in support of the lifting of the ban.
37 See for discussion Lee, M, ‘The Governance of Coexistence between GMOs and other Forms of Agriculture: A Purely Economic Issue?’ (2008) 20 Journal of Environmental Law 193 CrossRefGoogle Scholar.
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39 Commission Recommendation on Coexistence 2003/556/EC, [2003] OJ L189/36. This Recommendation was replaced in 2010, the new Recommendation being issued at the same time as the proposals for legislative reform. These will be considered together below.
40 Ibid 2.1.4.
41 Ibid 2.1.8.
42 Reg 1829/2003, Art 12.
43 Further assistance in the setting of coexistence measures is offered through the COEXNET Network Group and the European Coexistence Bureau.
44 Coexistence Recommendation, 2003, above n 39, 1.4, emphasis added.
45 These component units include the Länder of Germany and Austria, the Autonomous Communities of Spain, the Regions of Belgium and Italy, Åland in Finland, Madeira and the Azores in Portugal, and, within the UK, Scotland, Wales, and Northern Ireland.
46 S Weatherill, ‘The Challenge of the Regional Dimension in the European Union’, in Weatherill and Bernitz, above n 1.
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49 See now Art 16(2) TEU.
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56 Art 263(3) TFEU.
57 See further the discussion in Hunt, above n 48.
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61 Presentation by Z Mikosa, Parliamentary Secretary, Ministry of Environment, ‘GM Free Zones in Latvia’ September 2010, available at www.gmo-free-regions.org/fileadmin/files/gmofree-regions/GMO-Free_Europe_2010/Presentations/Latvia.pdf.
62 Commission, Report on the implementation of national measures on the coexistence of GM crops with conventional and organic farming, COM (2006) 104 final, and Second Report, COM (2009) 153 final.
63 Discussed in detail below.
64 Communication from Wales Government, October 2010, on file with author. Compare the position of the UK Government, presented to the House of Commons European Committee A, HC Deb 4 June 2011 col 3.
67 Emphasis added.
68 Extensive resources are available on the GMO-Free Europe site, including conference reports, a regularly updated list of GM-free areas at a range of levels, www.gmo-free-regions. org.
70 Levidow and Boschert, above n 38, 174.
71 Commission, SEC (2006) 313, Staff Working Document, Annex to COM (2006) 104 final, 8.
72 Former 94(5) EC Treaty.
73 Seifert reports that losing the case before the CFI was the immediate impetus for Upper Austria to take the lead in the establishment of the European GMO-Free Regions Network, Seifert, F, ‘Regional GM Opposition as Multilevel Challenge? The Case of Upper Austria’ (2006/7) 2 Tailoring Technologies 11, 22.Google Scholar
74 Lenaerts and Cambien, above n 55 at 615.
75 Joined Cases T-366/03 and T-235/05, Land Oberösterreich and Republic of Austria v Commission [2005] ECR II-4005, para 28.
76 Joined Cases C-439/05 P and C-454/05 P Land Oberösterreich and Austria v Commission [2007] ECR I-7141.
77 Carinthia Genetic Engineering Precautionary Measures Act, 2005. See for detail, Commission Staff Working Document, above n 71; for discussion, see Seifert, n 73; and Levidow and Boschert, n 70.
78 Notification pursuant to Art 95(5) EC, [2009] OJ C139/03.
79 EFSA Scientific Opinion; (2010) EFSA Journal; 8(2) 1500.
80 Additionally, some scope may exist for cultivation restrictions in areas of particular environmental sensitivity, such as designated Special Areas of Conservation (under the Habitats Dir 92/43) and Special Protection Areas (under the Birds Dir 2009/147), where specific threats to biodiversity may arise. More properly it appears these should be raised at the time that authorisation decisions are being made, using Art 19(c)(3) Deliberate Release Dir.
81 Though not for technical specification notifications under Dir 98/34, [1998] OJ L204/37 under which national and regional coexistence regimes are to be notified to the Commission.
82 The draft law was notified under to the Commission under technical specifications Reg 2003/200/A, and ultimately approved for implementation. For detail see the Commission’s Staff Working Document, SEC (2006) 313.
83 Press Release, 2 October 2008, available at www.gmo-free-regions.org/fileadmin/_temp_/wallonie_reseaux_sans_ogm_oct_2008.pdf.
85 ‘Décret relatif à la coexistence des cultures génétiquement modifies avec les cultures conventionnelles et les cultures biologiques’, Moniteur Belge 8 August 2008, 41481.
86 Welsh Assembly Government, Consultation on Proposals for Managing the Coexistence of GM, Conventional and Organic Crops in Wales, 2009, 29.
87 Ibid, 41.
88 Dir 2004/35/EC, [2004] OJ L143/56.
89 The Environmental Damage (Prevention and Remediation) (Wales) Regs 2009 SI 2009/995 (W 81).
90 Above n 86, foreword.
91 In this respect, the EFSA’s guidelines for environmental risk assessment are being updated, and will then require the endorsement of the Member States.
92 Council Conclusions on GMOs, 2912th Environment Council Meeting, 4 December 2008.
93 Declaration submitted to Agriculture and Environment Councils, 23 March 2009; Council Note 7581/09.
94 Austria’s submission in June 2009 was supported by 12 other States, Council Note 11226/2/09 REV 2.
95 Commission, Communication on the Freedom for Member States to decide on the Cultivation of Genetically Modified Crops, COM (2010) 380 final, 7.
96 COM (2010) 4822 final.
97 Proposal for a Reg amending Dir 2001/18/EC, COM (2010) 375 final.
98 Explanatory Memorandum to the Proposal, ibid, 8.
99 Ibid, 6.
100 Annex to the Coexistence Recommendation, above n 96, 5.
101 Coexistence Recommendation, pt 2.4.
102 Explanatory Memorandum, 6 (emphasis added).
103 Press release available at www.gmofree-euregions.net:8080/docs/ajax/ogm/.Upper%20Austria%20PRESS.pdf.
104 See eg, Opinion of the European Economic and Social Committee, 9 December 2010, NAT/480. The difficulties with a reliance on ‘ethical’ grounds as a basis to justify restrictions on the release of GMOs is clearly demonstrated in Case C-165/08 Commission v Poland [2009] ECR I-6843.
105 Council Legal Service Opinion, 2010/0208 (COD), 15696/10.
106 The proposal cannot be seen as improving the functioning of the internal market, as is required under Art 114, ibid, paras 13–27.
107 Ibid, paras 37–43.
108 Commission Staff Working Document SEC (2010) 1454 final.
109 Council Ad Hoc Working Party Progress Report, 2010/0208, 17443/10, 5.
110 Revision under 114 TFEU uses the ‘ordinary’ legislative procedure, codecision, set out in Art 294 TFEU. An optional request for the Committee’s opinion may be made by the Commission.
111 Committee of the Regions Opinion on ‘Freedom for Member States to Decide on the Cultivation of Crops in their Territory’, [2011] OJ C104/13 at para 18.
112 See further the discussion in Lenaerts and Cambien, above n 55.
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