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Brussels, Belgium
September 2, 2003
The European Commission has
decided to reject a request from Austria to introduce national
measures banning the use of GMOs in the region of Upper Austria
for a three-year period. The request was notified in March 2003,
under Article 95(5) of the EC Treaty. This Article allows Member
States to derogate from European Union harmonisation measures,
under certain strict conditions. These include the emergence of
new scientific evidence as well as the existence of particular
country-specific conditions. After thorough examination of the
Austrian request, the Commission concluded today that these
conditions were not met in this specific case.
The Austrian measure
The measures envisaged by the
Upper Austrian regional Government are presented as a mean to
protect organic and traditional agricultural production as well
as plant and animal genetic resources from hybridisation with
GMOs. The Upper Austria authorities consider that a general ban
on genetically engineered seeds is justified given that the
issue of coexistence between GM and non-GM method of
agricultural production is not fully resolved.
The Commission's decision
Before taking its decision the
Commission consulted the scientific committee of the European
Food Safety Authority (EFSA). In the ligth of EFSA's assessment,
the Commission has concluded that the information provided by
the Austrian authorities does not constitute new scientific
evidence relating to the protection of the environment or the
working environment. Furthermore, Austria has not proven the
existence of a problem specific to the Region of Upper Austria
and which would have arisen after adoption of the harmonisation
measure(1). On this basis, the Commission has come to
the conclusion that the draft Act does not meet the requirements
of Article 95(5) of the Treaty and consequently a derogation to
EU legislation is not founded.
Environment Commissioner Margot
Wallström said: “We have analysed the Austrian measures in great
detail, and, legally speaking, this seems a clear-cut case. The
Treaty requirements allowing for a derogation from EU
legislation are not met and, in its role of guardian of the
Treaty, the Commission can only reject the Austrian request. I
have, of course, full respect for the concerns of the Austrian
authorities for the protection of the environment and human
health, and have no problem to recognise that co-existence is an
important issue to be addressed. However, I would like to point
out that these are common concerns, shared by many regions
across Europe, for which is it possible to find a viable
response within the existing legal framework”.
Background
On 13 March 2003 the Republic of
Austria notified, in compliance with Article 95(5) of the EC
Treaty, draft regional provisions concerning the 'Upper Austrian
Act on the prohibition of genetic engineering 2002'. The
measures are supported by a study that showed alleged new
scientific evidence highlighting potential risks related to GMOs
and specific to Upper Austria. Upper Austria therefore considers
that a general ban on all GMOs (approved or not) is required in
order to protect the environment and agriculture.
Such a prohibition derogates from
the relevant Community harmonisation measure, in this case
Directive 2001/18/EC, which foresees case by case assessment of
GMOs, and enables Member States to invoke safeguard clauses only
relative to specific GMOs that have already been approved in the
EU. Upper Austria considers that such derogation is justified on
the basis of Article 95(5) of the Treaty.
Article 95(5) of the EC Treaty
provides that 'if, after the adoption by the Council or by
the Commission of a harmonisation measure, a Member State deems
it necessary to introduce national provisions based on new
scientific evidence relating to the protection of the
environment or the working environment on grounds of a problem
specific to that Member state arising after the adoption of the
harmonisation measure, it shall notify the Commission of the
envisaged provisions as well as the grounds for introducing
them'.
Furthermore, according to Article
95(6) of the Treaty, 'the Commission shall, within six months
of the notification approve or reject the national provisions
involved after having verified whether or not they are a means
of arbitrary discrimination or a disguised restriction to trade
between Member States and whether or not they shall constitute
an obstacle to the functioning of the internal market'.
The Commission services conducted
assessment of the draft Act in line with the requirements of
Article 95(5). All the conditions in this article must be
satisfied if the national derogating provisions are to be
accepted by the Commission.
The European Food Safety
Authority was consulted for scientific opinion as to whether the
information provided by the Austrian authorities for the draft
Act constituted new scientific evidence relating to the
protection of the environment or the working environment as
required by Article 95(5). Its opinion(2), issued on
11 July 2003, concluded that;
- The scientific information
presented in the report provided no new data that would
invalidate the provisions for the environmental risk
assessment established under Directive 90/220/EEC or Directive
2001/18/EC;
- The scientific information
presented in the report provided no new scientific evidence,
in terms of risk to human health and the environment, that
would justify a general prohibition of cultivation of
genetically modified seeds and propagating material, the use
of transgenic animals for breeding purposes and the release of
transgenic animals, authorised for these purposes under
Directive 90/220/EEC or Directive 2001/18/EC in this region of
Austria.
Co-existence
The issue of co-existence of GM
crops with conventional and organic farming was addressed by the
Commission in a Recommendation on 23 July 2003. On GM-free
zones, the Recommendation states that priority should be given
to management measures applicable on farm level and in close
co-operation with neighbouring farms depending on crop and
product type (e.g. seed versus crop production). Measures of a
regional dimension could be considered if they are proportioned
and if sufficient levels of purity cannot be achieved by other
means.
A clause on co-existence will be
included into Directive 2001/18 saying that Member states may
take appropriate measures to avoid the unintended presence of
GMOs in other products.
(1)The 'harmonisation
measure' is in this case Directive 2001/18/EC on the deliberate
release into the environment of genetically modified organisms
(OJ L 106, 17.4.2001, p. 1-39)
(2)Opinion of the
Scientific Panel on Genetically Modified Organisms on a question
from the Commission related to the Austrian notification of
national legislation governing GMOs under Article 95(5) of the
Treaty, The EFSA Journal (2003) 1, 1-5 |
