A la carte approach to EU law on GM crops will come back to bite

Following a fraught meeting of EU ministers on Tuesday, the European Commission looks set to push through the approval of a new genetically modified (GM) maize. It will do so in the face of stiff opposition and with a fundamentally compromised legal basis.

An unprecedented number of countries (19) oppose the Commission’s motion to approve the pesticide-producing crop by US agrochemical company Pioneer DuPont, although they fall short of a weighted qualified majority to block it. Even though only five countries are in favour (just one of these, Spain, can actually grow the GM maize) and despite a cross-party two-thirds majority of members of the European Parliament calling on the Commission to withdraw its proposal, it is now expected to formally approve the GM crop in the coming months.

This considerable political opposition is reflected in public opinion: 61 per cent of Europeans are deeply concerned about genetic engineering. Even the European Food Safety Authority (EFSA) – often criticised for its pro-GM stance – has highlighted the toxic impact of the GM maize, known as 1507, on insects like butterflies and moths, while underlining that a lack of proper research could be hiding other dangerous effects.

But beyond the fundamental scientific and political arguments against the approval, the undoing of a Commission authorisation of the GM maize will be its disregard for EU legal process. To explain why, it is necessary to take a small step back. So make yourself comfortable and read on. 

Case 1

In March 2010, twelve years after the authorisation of Monsanto’s GM maize MON810, the then EU health commissioner John Dalli approved the cultivation of only the second-ever GM crop in the EU: an antibiotic-resistant GM potato produced by German chemical company BASF and known as Amflora. Barely a week into the job, Dalli unleashed a wave of public outrage against the Commission’s decision. In only a few months, a petition by Greenpeace and Avaaz collected well over one million signatures from across Europe.

The Commission didn’t budge on the GM potato, but froze any new approvals. As it turned out, Amflora was a commercial flop: BASF struggled to find any farmers prepared to grow and sell the GM crop. The GM potato was pulled from the market in 2012. But the real surprise came late last year. 

In a ruling in December 2013, the European Court of Justice found that the Commission was guilty of breaching EU rules and forcing through the approval of Amflora without the required consultation. The ruling was the result of a legal challenge by the governments of Hungary, Austria, Luxembourg and Poland.

In 2005, the Commission released its original proposal in favour of the authorisation of the GM potato. In accordance with EU law, this proposal was then first submitted to a committee of experts from all EU countries and then to EU ministers. However, in 2009, after these consultations, the Commission called on EFSA to provide a new consolidated scientific opinion. The Commission then proceeded with the authorisation of Amflora instead of providing the committee of experts with the new EFSA opinion and allowing it to vote again on the proposed authorisation. Under EU law, any substantial alteration of the Commission’s proposal requires it to be submitted to the expert committee before it goes to EU ministers.

The Court found that the mere existence of a new scientific opinion by EFSA should be considered as a “substantial” alteration of the Commission’s original proposal as it changed the scientific basis of the decision. It concluded that the Commission had acted illegally by not consulting again with the expert committee and it overturned the authorisation of Amflora.

So what bearing does all this have on the 1507 GM maize? Well, quite simply: Oops! The Commission has done it again!

Case 2

Its original proposal calling on EU governments to approve 1507 dates back to 2009. The authorisation was then stalled mid-process, following the GM potato debacle. In a separate ruling, the Court of Justice said this interruption was illegal, which then prompted the Commission to revive the file. The trouble is that since the Commission’s original proposal in 2009, EFSA released three new opinions on 1507, significantly altering the scientific evidence available to the Commission. In them EFSA stresses the GM maize’s impacts on butterflies and moths. As a result, the Commission decided to substantially amend its original proposal, as it did with the GM potato. In its ruling on Amflora, the Court confirmed that any alteration to a Commission proposal and its scientific basis must be resubmitted to the expert committee. However, in its blind rush to get the GM maize approved, the Commission fast-tracked its amended proposal on 1507 straight through to EU ministers, once again bypassing consultation with the national expert committee, despite EFSA's new opinions.

So here we are again. The Commission says that the Court of Justice obliges it to take the authorisation of 1507 forward and that EU law obliges it to approve the GM maize despite massive opposition from 19 EU governments and elsewhere. It notes that without a qualified majority against its proposal, EU law forces it to approve. But the Commission is once again blatantly guilty of an à la carte approach to EU law to defend a proposal it never should have submitted in the first place. Its eagerness to show the United States government and the agrochemical industry that it is prepared to push through GM crops against political and public opposition has once again led it to play fast and loose with EU rules that – as imperfect as they are – help ensure food safety in Europe. 

Andrea Carta, Greenpeace EU legal counsel

Marco Contiero, Greenpeace EU Agriculture and GMO policy director