Growing National Bans on GMO Corn

• Author: Gabrielle H. Williamson
• Position: Managing Partner of the Brussels office of Heuking Kühn Lüer Wojtek, a German law firm
• Pages: 20-20

Page 20 ❧ THE ENVIRONMENTAL FORUM Copyright © 2009, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, July/August 2009

Bans by Member States

have also trig gered

concerns at the World

Trade Organization

Growing National

Bans on GMO Corn

The only genetically modif‌ied

crop allowed to be cultivated in

the European Union (EU) is maize

MON810, developed by a leading

U.S. biotechnology company. e

main advantage of this corn is that

it can resist the European corn borer,

which is widespread across southern

Europe.

e approval to cultivate MON810

was issued in 1998. However, a series

of national bans followed. EU Mem-

ber States may impose a ban on genet-

ically modif‌ied organisms — GMOs

— if the prohibition can be justif‌ied.

According to Article 23 of the Direc-

tive on Deliberate Release into the

Environment of Genetically Modi-

f‌ied Organisms, a Member State may

suspend the use and sale of a GMO

on its territory if it has been presented

with new evidence about ef‌fects on

the environment or human health.

e most recent ban was put in

place by Germany in April, putting

it alongside Luxembourg, France,

Austria, Hungary, and Greece. France

had presented new evidence about the

spread of genetically engineered pollen

over large distances and claimed that

there is a likelihood that MON810

pollen may adversely af‌fect natural

surroundings and adjacent farms.

Greece had explained that the ban is

a safeguard against possible adverse

impact on bee colonies and animal

feeding. Germany stated only that

there were some legitimate reasons to

believe MON810 poses “a danger to

the environment.”

However, none of these national

bans has been upheld in the follow-

on scientif‌ic assessments called for

in the Directive and other pieces of

EU food safety law. e EU top food

safety watchdog, the European Food

Safety Authority (EFSA), has tested

the safety of MON810 several times

and conf‌irmed it on each occasion.

Recently, the scientif‌ic GMO panel

of EFSA again came to the conclusion

that there is no new evidence to justify

a national ban on MON810.

As a result of EFSA f‌indings, the

European Commission has proposed

several draft decisions to the European

Council to repeal national bans on the

cultivation of MON810. However, to

date, each of these proposals was re-

jected by a majority of Member States

in the Council on the same grounds as

the prohibitions were imposed. In its

Decision, the Council

underlined that Mem-

ber States can take

case-specif‌ic manage-

ment or restriction

measures, including

prohibitions, in order

to ensure biodiversity

protection in fragile ecosystems and in

regions with specif‌ic agronomical and

environmental characteristics. As a

result, the Council provided clear po-

litical support to Members’ allegations

that current studies do not provide ad-

equate assurance that the GMO crop

does no harm to humans, animals or

the environment.

Green lobbies and consumer

groups welcomed the prohibitions,

citing surveys showing that more than

70 percent of European consumers

oppose the use of GMO crops for

food. In addition, environmentalists

claimed that genetically engineered

corn plants produce a toxin that not

only destroys the larvae of the corn

borer moth, but also some benef‌icial

insects that play an important role in

the ecosystem. e meat industry, on

the other hand, expressed its disap-

pointment with the prohibitions,

since due to high feed cost and grow-

ing global demand for meat, GMOs

have become an increasing necessity

for animal feed.

Another source of opposition

stems from the seed makers that

use the MON810 technology. ey

emphasize that fears are unfounded

and despite the fact that protein

contained in MON810 maize does

have selective toxicity, it is harmless

to humans, f‌ish, and wildlife. More-

over, the producer of MON810 has

already taken legal actions and chal-

lenged the national ban before a Ger-

man administrative court. During the

proceedings, it argued that the safety

of MON810 has been demonstrated

by the United States, Japan, Canada,

and even the EU. Despite its defeat,

the producer is already considering

an appeal to a higher German court

and expects that farmers will be al-

lowed to sow MON810 at least in

the current season.

It should be added

that widening Mem-

ber State bans on

GMO crops also trig-

gered concerns at the

international trade

level. In the past, the

World Trade Organization (WTO)

has stated that national bans were

ef‌fectively denying market access al-

lowed under trade rules to countries

using biotechnology in agriculture. In

2006, the WTO of‌f‌icially ruled that

the EU moratorium on new gene-

altered products lasting from 1998 to

2004 was illegal. e recent develop-

ments in European genetic technol-

ogy policy and national cultivation

bans may refresh the conf‌lict with the

EU’s main trade partners. Some of

them have already criticized the new-

est course of events, calling it a hidden

form of market protectionism.

A V   EU

Gabrielle H. Williamson i s M an ag in g P ar tn er of

th e B ru ss els of c e o f H eu ki ng K üh n L üe r W ojt ek ,

a G erman law rm. She also practic es in the

rm’s Düsseldor f ofce. She can be reached at

g.williamson@heuking.de.