1 Concerning the history of the EU GM crop regulatory framework see S. Morris and C. Spillane in this issue.

2 Marie-Angèle Hermitte, S. Anvar, M. Bonin et al., “Legal Issues – An Overview on Coexistence Policies: Technological Pluralism, Confidence Economy, Transnational Supply Chains”, in Y. Bertheau et al. (eds), GM and non-GM Supply Chains: Their Coexistence and Traceability (Blackwell/Wiley, forthcoming).

3 A recent economic paper confirms this approach: “The difference in incremental benefits and cost between GM and non-Gem farmers provide incentives for regional agglomeration of either GM or non-GM farms”, Volker Beckmann, Claudio Soregaroli and Justus Wesseler, “Ex-Ante Regulation and Ex-Post Liability under Uncertainty and Irreversibility: Governing the Coexistence of GM Crops”, Economics Ejournal Discussion Paper 2009-53, 4 December 2009, at p. 25, available on the Internet at <http://www.economics-ejournal.org/economics/journalarticles/2010-9> (last accessed on 28 October 2010).

4 Some coexistence regimes were so strict that, in practice, they prevented the cultivation of GMO and therefore violated Art. 22 of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC – OJ L 106, 17.4.2001. In this connection, please see the observations made by the European Commission on 26 July 2004 about the strict liability regime for GM cultivation imposed in Germany: “In general, the proposed liability regime is likely to lead to a high and unpredictable economic risk for GMO farmers. The Commission would therefore only agree to the draft on the conditions that these provisions do not actually prevent the cultivation of GMOs in Germany.” (Communication SG(2004) D/51510 – TRIS Ref. 2004/0133/D, in the Directive 98/34/CE framework). However, the European Commission has not initiated judicial proceedings through the ECJ. In this connection please see also Herdegen, Matthias, “The Coexistence of Genetically Modified Crops with Other Forms of Farming. The Regulation by EU Member States in the Light of EC Law”, 2 Journal of International Biotechnology Law (2005), pp. 89 et sqq., at p. 92.CrossRefGoogle Scholar

5 Commission Recommendation of 13 July 2010 on guidelines for the development of national co-existence measures to avoid the unintended presence of GMOs in conventional and organic crops, 2010/C 200/01, OJ 2010 C, 22/07/2010.

6 Conf. Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions on the freedom for Member States to decide on the cultivation of genetically modified crops, COM(2010) 380 final, at p. 5.

7 The European Commission recommendation did not mention harmonization among its aims. However, like any guideline document that “should provide a list of general principles and elements for the development of national strategies” (Recital 2), it clearly aims to avoid excessive divergences.

8 The proposed introduction of 26b in the Directive 2001/18 (supra note 4)could allow Member States to prohibit GMO cultivation on grounds other than those related to the assessment of the adverse effect on health and the environment. As Sara Poli and Maria Weimer explain in their articles, this opt-out clause should be specified. Although both the opt-out clause and the new recommendation on coexistence are part of the new strategy of the European Commission to give more freedom to Member States to decide on the cultivation of GMO, mainly on socioeconomic grounds, we think that they have different natures. From our point of view, the opt-out clause is not related to the guarantee of diversity in production (the coexistence aim) but, on the contrary, it is a new safeguard clause of the single authorisation procedure based on “other legitimate factors”, i.e., not scientific factors. This interpretation could be supported by the explanations of the European Commission in its Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions on the freedom for Member States to decide on the cultivation of genetically modified crops, COM(2010) 380 final, at p. 7: “[The opt-out clause] is thus a further option for Member States to adopt measures in relation to authorised GMOs, in addition to the measures that they are already entitled to take by application of Article 26a of Directive 2001/18/EC to avoid the unintended presence of GMOs in other crops”. See also the Explanatory Memorandum of the Proposal for a Regulation of the European Parliament and of the Council amending Directive 2001/18/EC as regards the possibility for the Member States to restrict or prohibit the cultivation of GMOs in their territory, COM (2010) 375 final – 2010/0208 (COD), at p. 3: “the scope of the new [Coexistence] recommendation, which mirrors Article 26a of Directive 2001/18/EC, can only refer to measures aimed at avoiding the unintended presence of GMOs in other crops, with offer fewer margins for Member States to decide than under a comprehensive legal amendment [like the opt-out clause]”.

9 Art. 1 of Wallon Décret relatif à la coexistence des cultures génétiquement modifiées avec les cultures conventionnelles et les cultures biologiques du 19 juin 2008, published in the Moniteur Belge on 8 August 2008. Explanatory Statements of the German Act reorganising legislation concerning genetic engineering (Gesetz zur Neuordnung des Gentechnikrechts – GenTG), published in the Bundesgesetzblatt on 3 February 2005. Explanatory Statements of the Portuguese Decreto Lei Nº 160/2005 of 21 September 2005, published in the Diário da República on 21 September 2005. Art. L. 531-1 of the French Code de l’Environnement (in accordance with the version established by the French Loi n° 2008-595 du 25 juin 2008 relative aux organismes génétiquement modifiés, published in the Journal Officiel de la République Française on 26 June 2008).

10 Recommendation 2010/C 200/01, supra note 5, recital (3).

11 Recommendation 2010/C 200/01, supra note 5, point 1.1.

12 Art. 19(3)(c) and Annex II of Directive 2001/18/EC (supra note 4) and Art. 6 and 18 of Regulation (EC) n° 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed (Text with EEA relevance), OJ L 268, 18.10.2003, pp. 1–23.

13 Recommendation 2010/C 200/01, supra note 5, point 2.1.4.

14 In practice very strict and costly isolation measures consolidate a region as non GM farming; and likewise the risk of crosspollination causes the expulsion of organic farmers from a region with a high number of GM farms.

15 See “Charter of the Regions and local Authorities of Europe on the Subject of Coexistence of genetically modified Crops with traditional and organic Farming”, Florence, 4 February 2005, available on the Internet at <http://www.gmofree-euregions.net:8080/docs/ajax/ogm/Charter_en.pdf> (last accessed on 28 October 2010).

16 It merely quotes recital 10 of Regulation 834/2007 that says that the aim is to have the lowest possible presence of GMOs in organic products. See Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91, OJ L 189/1, 20.7.2007, pp. 1–23.

17 Francis Jacobs, “Recent Development in the Principle of Proportionality in European Community Law” and Tridimas, Takis, “Proportionality in Community Law: Searching for the Appropriate Standard of Scrutiny”, in Ellis E., Evelyn (ed.), The Principle of Proportionality in the Laws of Europe (Oxford: Hart Publishing 1999), pp. 1–22 and 65–84.Google Scholar

18 For example, Case C-189/95, Criminal proceedings against Harry Franzén [1997] ECR I-05909, at para. 76; Case C-317/92, Commission of the European Communities v. Federal Republic of Germany, 1994 ECR I-02039, at para. 16.

19 There is important case law on this issue, particularly on Art. 36 TFEU. Among others see Case C-131/93, Commission of the European Communities v. Federal Republic of Germany, [1994] ECR I-03303, at para. 18; Case C-473/98, Kemikalieinspektionen v. Toolex Alpha AB, [2000] ECR I-05681, at para. 40; Case C-217/99, Commission of the European Communities v. Kingdom of Belgium, [2000] ECR I-10251, at para. 28; Case C-170/04, Klas Rosengren and Others v. Riksåklagaren, [2007] ECR I-04071, at para. 43.

20 This is the most controversial control. See, for example, Case 302/86, Commission of the European Communities v. Kingdom of Denmark, [1988] ECR 04607, paras. 20–21; and the Opinion of the Advocate General Sir Gordon Slynn in the same case.

21 Recommendation 2010/C 200/01, supra note 5, point 2.2.

22 Recommendation 2010/C 200/01, supra note 5, point 2.4.

23 Recommendation 2010/C 200/01, supra note 5, point 2.5.

24 See the contribution by Maria Weimer in this issue.

25 See the contribution by Sara Poli in this issue.

26 Marta Czarnak-Kłos and Emilio Rodríguez-Cerezo, “Best Practice Documents for Coexistence of genetically modified Crops with conventional and organic Farming: 1. Maize Crop Production”, European Coexistence Bureau (ECoB) and Joint Research Centre (JRC), September 2010, available on the Internet at <http://ecob.jrc.ec.europa.eu/documents/Maize.pdf> (last accessed on 29 October 2010).

27 On the contrary, see Sara Poli in this issue.

28 It is true that the SPS agreement is focused on sanitary and phytosanitary risks while the coexistence policy focuses on socioeconomic risks. However, taking into account that SPS measures could include measures to prevent economic damages produced by the presence of GMO whenever they are unwelcome (EC-Biotechnological Products, Panel Report, WTO Docs WT/DS291/R, WT/DS292/R and WT/DS293/R, 29 September 2006, at para. 7.2576), there are some possible connections between them.