EU Policy on Genetically Modified (GM) Food Crops: Hard or Soft Law?
Thijs Etty LL.M.
Thijs Etty’s research at IVM focuses on EU environmental law and biotechnology governance. With a background in Dutch, EU and international (environmental) law, he has specialised in the legal and policy challenges raised by the introduction of genetically modified (GM) food and agricultural products.
He has published articles on these topics in various international legal journals and books, and is currently completing a PhD dissertation in law at IVM, on multilevel governance of agricultural-biotechnology, focusing in particular on the regulatory strategies to enable the ‘coexistence’ of the cultivation of GMO and non-GMO food crops. He is an Assistant Professor of EU law at the VU Law Faculty, department of Transnational Legal Studies. At IVM, he co-coordinates the Research Cluster on European Law and Policy for Sustainability (ELPS).
Recently, Thijs Etty made various media appearances to comment on a controversial change in the European Union’s policy on the cultivation of GM crops. Etty’s opinion editorial article in Dutch newspaper de Volkskrant citing leaked internal memos and policy drafts of the European Commission, generated a wealth of media attention by Dutch and international written and broadcast press. On the basis of confidential Commission documents obtained from Brussels’ sources weeks before the official announcement of the plans, Etty cast a critical and skeptical perspective on the EU executive’s latest policy shift on agricultural biotechnology. His analysis of the legislative amendments and regulatory policies proposed by the Commission, exposed problems of legal certainty and applicability.
The EU Commission’s proposals suggest a 'renationalisation' of decision-making, by allowing individual Member States to ban or restrict GM agriculture on their national territories. The policy shift is a bid to overcome the longstanding political stalemate, that has all but prevented GM crop releases in the EU for over a decade. The Member States are fiercely divided over agricultural biotechnology, resulting in deadlocked EU decision-making on GM crop authorisations. The proposed new compromise would leave the harmonised EU-level GM crop authorisation system in place, and would allow increased GM agriculture in favourable markets like the Netherlands, United Kingdom, Sweden, and the Czech Republic, but would also grant more reluctant countries like Austria, Italy, Greece, Luxembourg, and Hungary, the right to prohibit the cultivation of EU-approved GM crops. In return for this right to 'opt-out', those critical Member States are expected to end the current political deadlock and facilitate future authorisations of GM crops at EU-level.
However, according to biotechnology law expert Thijs Etty, this latest EU policy shift may in fact diminish rather than strengthen the legal position of GM-critical countries and autonomous regions in Europe. Based on his legal analysis of the details of the legislative proposals and supporting policy documents, Etty concludes that Member States will not be granted new substantive and enforceable legal rights to ban GM crop cultivation. In fact, the new rules may further restrict Member States’ existing prohibition grounds, based on environmental and health concerns or so-called ‘coexistence’ issues (i.e. measures to guarantee GM-free status of organic and conventional agriculture, in keeping with the EU’s mandatory labelling rules for GM trace-presence in food and animal feed). Etty explains that "national bans would need to be based on ethical or socio-economic grounds, like public opinion, which are difficult to quantify and to defend in a court of law or at the World Trade Organisation (WTO). Both EU law and WTO rules apply a very high burden of proof for the necessity of restrictions to the fundamental trade principle of free movement of goods, and all exceptions must have a firm basis in EU law. The current proposals offer no legal protection to GM-critical governments or organic farmers against such legal challenges by the biotech industry, GM farmers, world trade partners like the USA and Canada, or even the EU Commission itself."
According to Etty, the so-called 'renationalisation' of GM crop cultivation decision-making will therefore in practice actually entail a further transfer of power to Brussels. He points to indications that the EU Commission plans to unilaterally authorise a range of new GM crops for cultivation in the EU in the coming months, in the face of opposition by the vast majority of Europe’s citizens, and despite the continued lack of consensus among Member State governments. In March 2010, the Commission lifted the 12-year de facto moratorium on new GM crop releases by authorising the GM starch-potato Amflora, produced by German biotech giant BASF. Some 18 further GM crops are currently in the pipeline for EU authorisation, with the most advanced dossiers (four GM maize crops and one soybean) likely to receive the regulatory green light in the coming months. "The unique position of the EU as the world’s largest GMO-free zone is therefore about to come to an end", concludes Etty.
The introduction of commercial-scale cultivation of GM crops in Europe is expected to have a substantial impact on the viability of organic farming in particular, due to the strict purity regulations for organic foods. The EU’s mandatory labelling rules require that organic and other non-GM products must be labelled as ‘containing GMOs’ if they contain (trace amounts of) transgenic material. As a result of these GMO-labelling requirements, and due to the public scepticism and consumer reluctance towards GM foods that prevails throughout Europe, comingling or admixture with GM seeds, pollen or harvested produce will result in economic damages for non-GM farmers. In particular organic farmers may face the loss of premiums and even organic certification, due to the stringent organic purity requirements. However, it is now widely accepted that total isolation of transgenic material is practically impossible, and that some level of admixture or comingling will inevitably occur, certainly once GM crop cultivation is widespread in the EU. To address these and other novel complexities raised by the introduction of GM crops, there is a market demand and regulatory need for so-called ‘coexistence’ policies, entailing both agronomic-technical isolation measures to minimize unwanted admixtures, and legal/liability provisions to address their inevitable (socio-)economic impacts. At present, coexistence policy has not yet been harmonised at EU level, which according to Thijs Etty has resulted in a ‘regulatory gap at the heart of the EU’s regulatory regime for agricultural biotechnology’. He adds: ‘It is now broadly accepted that coexistence is not an issue that can simply be left to the market, but that it requires some form of organization, if not government regulation. Distinctly less consensual and straightforward, however, are the questions of who should regulate coexistence, and how.’ These questions form the backdrop for Thijs Etty’s policy analysis and legal research at IVM.
Contact information: Thijs Etty LL.M.
Etty, T.F.M. (Forthcoming December 2010). A Brave New World for GM Crops in the EU: Or Does the Emperor Have New Clothes?. 12(4) Environmental Law Review.
Etty, T.F.M. (2009). Governance of GMO and non-GMO Coexistence: Filling the Gap in the EU Regulatory Regime on Agricultural Biotechnology. Paper presented at the 2009 Amsterdam Conference on the Human Dimensions of Global Environmental Change: Earth System Governance: People, Places and the Planet, 2-4 December 2009. Available online at: http://www.earthsystemgovernance.org/ac2009/papers/AC2009-0138.pdf
Etty, T.F.M. (2009). Regulating Coexistence in the EU: Moving beyond ‘Subsidiarity vs. Harmonization’ toward Synergetic Governance. Paper presented at the 4th International Conference on Coexistence between Genetically Modified (GM) and Non-GM based Agricultural Supply Chains (GMCC’09). Melbourne (Australia), 9-13 November 2009. Available online at: http://www.gmcc-09.com/wp-content/uploads/27-etty-2.pdf