Excluding Coexistence of GMOs? The Impact of the EU Commission's 2010 Recommendation on Coexistence

• Date: 01 July 2011
• Published date: 01 July 2011
• Author: Mary Dobbs
• DOI: http://doi.org/10.1111/j.1467-9388.2011.00721.x

Excluding Coexistence of GMOs? The Impact of

the EU Commission’s 2010 Recommendation

on Coexistence

Mary Dobbs

In the midst of the European Union (EU) genetically

modified organisms (GMOs) regime, coexistence of GM

and non-GM crops alongside each other remains tech-

nically within the competence of the Member States.

Post EU authorization of a GM crop, Member States

may legally take appropriate measures to limit or

prevent the presence of GMOs within non-GM crops. In

July 2010, as part of a Cultivation Package, the Com-

mission created a new Coexistence Recommendation

that supports a flexible approach to more stringent

coexistence measures by the States, while attempting to

maintain control over the legitimate objectives justify-

ing the measures. This article analyzes the impact of the

2010 Recommendation upon coexistence in the context

of the existing practices and the previous 2003 Recom-

mendation, taking into account its status as a soft law

document and the ‘domino effect’. It is argued that the

2010 Recommendation may have greater practical and

legal ramifications for coexistence than might first be

thought. In attempting to create guidelines that allow a

more flexible and inclusive approach towards national

measures, the 2010 Recommendation may act as a

catalyst to eventually exclude GM cultivation within

Member States.

INTRODUCTION

The cultivation of genetically modified organisms

(GMOs) has proven a controversial issue within the

European Union over the decades, as crucial interests

are placed in conflict with each other in an area of

scientific uncertainty. The EU GMO legislation focuses

on three interests in particular and aims to balance the

free movement of GM products within the internal

market with a high level of environmental and human

health protection.1However, despite attempts by the

Commission to either take heavy-handed approaches2

or to cajole or compromise with Member States,3some

States continue to object to GM cultivation and even

impose national prohibitions.4Consequently, the

1See, e.g., 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, [2001] OJ L106/1, Recitals 5 and 47 and

Articles 1 and 4; and Regulation 1829/2003/EC of the European

Parliament and of the Council of 22 September 2003 on genetically

modified food and feed, [2003] OJ L268/1, Recitals 2, 3 and 9 and

Articles 1 and 4.

2For instance, the Commission has taken legal action against Poland

and Austria for national prohibitions before the European Court of

Justice (CJ) 13 September 2007, Joined Cases C-439/05 and

C-454/05 Land Oberösterreich and Austria v. Commission, [2007]

ECR I-07141; and CJ 16 July 2009, Case C-165/08 Commission v.

Poland, [2009] ECR I-6843. It has also attempted unsuccessfully to

lift national prohibitions on cultivation where based upon safeguard

clauses within the secondary legislation.

3For example, there have been attempts through the insertion of

Article 26a on coexistence into Directive 2001/18 by Regulation 1829/

2003, increasing protective elements within the legislation and most

recently in the creation of the Cultivation Package as discussed

below.

4See, e.g., those that are the subject of the following Commission

Proposals to compel States to remove safeguard measures as unjus-

tified: Proposal for a Council Decision concerning the provisional

prohibition of the use and sale in Austria of genetically modified maize

(Zea mays L. line T25) pursuant to Directive 2001/18/EC (26 April

2005), COM (2005)161; Proposal for a Council Decision concerning

the provisional prohibition of the use and sale in France of genetically

modified hybrid swede rape (Brassica napus L. ssp. oleifera

Metzg.MS1Bn x RF1Bn) pursuant to Directive 2001/18/EC (26 April

2005), COM(2005)162; Proposal for a Council Decision concerning

the provisional prohibition of the use and sale in Greece of genetically

modified spring swede rape (Brassica napus L. ssp. oleifera) derived

from transformation event Topas 19/2, pursuant to Directive 2001/

18/EC (26 April 2005), COM(2005)164; Proposal for a Council Deci-

sion concerning the provisional prohibition of the use and sale in

Luxembourg of genetically modified maize (Zea mays L. line Bt 176)

pursuant to Directive 2001/18/EC (26 April 2005), COM(2005)165;

Proposal for a Council Decision concerning the provisional prohibition

of the use and sale in France of genetically modified spring swede

rape (Brassica napus L. ssp. oleifera) derived from transformation

event Topas 19/2, pursuant to Directive 2001/18/EC (26 April 2005),

COM(2005)166; Proposal for a Council Decision concerning the pro-

visional restriction of the use and sale in Germany of genetically

modified maize (Zea mays L. line Bt 176) pursuant to Directive

2001/18/EC (26 April 2005), COM(2005)167; Proposal for a Council

Decision concerning the provisional prohibition of the use and sale in

Austria of genetically modified maize (Zea mays L. line MON 810)

pursuant to Directive 2001/18/EC (26 April 2005), COM(2005)168;

Proposal for a Council Decision concerning the provisional prohibition

of the use and sale in Austria of genetically modified maize (Zea mays

L. line Bt 176) pursuant to Directive 2001/18/EC (26 April 2005),

COM(2005)169; Proposal for a Council Decision concerning the pro-

visional prohibition of the use and sale in Austria of genetically modi-

fied maize (Zea mays L. line MON 810) pursuant to Directive 2001/

18/EC of the European Parliament and of the Council (9 October

Review of European Community & International Environmental Law

RECIEL 20 (2) 2011. ISSN 0962 8797

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