National prohibitions on cultivation
In 2015 new provisions were introduced into the Directive enabling a Member State to demand, during the authorisation procedure of a given GMO or during the renewal of consent, that the geographical scope of the consent be adjusted so that all or part of the territory of that Member State is excluded from cultivation.[1] The notifier may then adjust or confirm the geographical scope of its initial notification. If that does not happen the adjustment shall be implemented in the written consent issued.
Also in cases where no such demand was made, a Member State may later adopt measures restricting or prohibiting the cultivation in all or part of its territory of a GMO once authorised in accordance with Part C of the Directive or with Regulation (EC) No 1829/2003 on genetically modified food and feed, provided that such measures are in conformity with EU law, are reasoned, proportional, and non-discriminatory, and, in addition, are based on compelling grounds. The Directive includes a non-exhaustive list of such grounds listing, inter alia, environmental policy objectives, town and country planning, socioeconomic impacts, avoidance of GMO presence in other products, and public policy. The Member
States are thus apparently provided with ample room for imposing restrictive measures on the cultivation of GMOs.
As from 3 April 2017, Member States in which GMOs are cultivated are required to take appropriate measures in border areas of their territory with the aim of avoiding possible cross-border contamination into neighbouring Member States in which the cultivation of those GMOs is prohibited. (Arts 26a and 26b.)
The Commission has also proposed an amendment to Regulation (EC) No 1829/2003 which would allow Member States to restrict or prohibit the use of GMOs and GM food and feed covered by the GMO legal framework, in part or all of their territory, thereby complementing the right to introduce national restrictions on cultivation.[2] [3] However, this proposal has met with much criticism, and at the time of writing it is uncertain what will come out of it.
Food and feed
In practice, many applications for authorisation of GMOs are made according to the procedure set out in Regulation 1829/2003 on genetically modified food and feed, since that applies to GMOs that may be used as food or feed or as a source material for the production of food or feed as well as to food and feed containing or consisting of GMOs and food and feed produced from GMOs. However, except for certain requirements that are specific to food and feed, the procedure for authorisation is similar and, as noted previously, the same possibility to prohibit cultivation applies as under Directive 2001/18/EC.w The environmental safety requirements of Directive 2001/18/EC also apply to the evaluation of GMOs for food use and to food containing or consisting of GMOs. However, in this case the European Food Safety Authority (EFSA) fulfils some of the functions that under Directive 2001/18/EC pertain to a competent authority of a Member State.
- [1] Directive (EU) 2015/412 of the European Parliament and of the Council amending Directive2001/18/EC as regards the possibility for the Member States to restrict or prohibit the cultivation ofgenetically modified organisms (GMOs) in their territory [2015] OJ L 68/1.
- [2] Proposal for a Regulation of the European Parliament and of the Council amending Regulation(EC) No 1829/2003 as regards the possibility for the Member States to restrict or prohibit the use ofgenetically modified food and feed on their territory (22 April 2015) COM(2015)177 final.
- [3] On the decision-making procedure see further ‘Reviewing the decision-making process ongenetically modified organisms’ (n 2).
