Yesterday (January 13), the European Parliament passed a legislative resolution regarding the “possibility for the Member States to restrict or prohibit the cultivation of genetically modified organisms (GMOs) in their territory.” The gist of this legislation is that the EU member states may ban GMOs for non-scientific (such as cultural and moral) reasons, with or without the existence of risk assessment (scientific justification). Here are some noteworthy provisions (underlining added).
- That risk assessment provides scientific advice to inform the decision making process and is followed by a risk management decision that also takes into account other legitimate factors relevant to the matter.
- The precautionary principle should always be taken into account in the framework of this Directive and its subsequent implementation.
- There should be the possibility for a Member State to act as risk manager and adopt reasoned measures restricting or prohibiting the cultivation of a GMO (…) once authorised in all or part of its territory, on the basis of grounds relating to the public interest, which are in conformity with Union law.
- Member States should be allowed to base measures restricting or prohibiting the cultivation of a GMO (… ) also on other grounds that may include land use, town and country planning, or other legitimate factors including those relating to cultural traditions.
Some legal experts reputedly said that the legislative resolution might not be consistent with the EU law and/or the WTO norms. (See Joe Kirwin, EU Law Allowing GM Non-Scientific Crop Ban Passes Final Hurdle, Bloomberg (Jan.14, 2015)). On the other hand, however, the new law might find supporters among trade law scholars. (See Robert Howse & Joanna Langille, Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Accept Trade Restrictions Justified by Noninstrumental Moral Values, 37 Yale J. Int’l L. 367 (2012)).
Also, some of provisions in this law remind me of one of findings by the Appellate Body in Hormones II (“By summarily dismissing the evidence on the misuse or abuse in the administration of the hormones and the consequent conclusions in the SCVPH Opinions in the manner that it did, the Panel incorrectly applied Article 5.1 and the definition of "risk assessment" in Annex A of the SPS Agreement, as interpreted by the Appellate Body” (para. 551), underlining added).
