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Austria proposes to legalize the opting out from applying EU law

After a debate on possible environmental risks related to the cultivation of genetically modified organisms (GMOs) during the last environment Council meeting (25.06.2009) Austria has now called for an opt-out clause to be introduced into the EU legislation to allow individual member states to decide on cultivation in their own right.

As authorisation of GMOs still remains highly controversial, the Austrian delegation presented its idea of an opt-out clause to ministers as a new "way forward" on the issue.

It argued that "socio-economic aspects could form a basis for individual member states to prohibit or regulate the cultivation of GMOs on the whole territory, or certain defined areas, of individual member states". This view was officially supported by Bulgaria, Ireland, Greece, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland and Slovenia.

However, there is no existing methodology for defining, evaluating or measuring socio-economic criteria. The Austrian note stresses that the options should be developed which could allow member states to decide for themselves on cultivation "without changing the general authorisation procedure for placing GMOs and products on the market". "The legally soundest solution" could be a set of minor amendments to relevant EU legislation, introducing the right of an individual country to "restrict or prohibit indefinitely the cultivation of authorised GMOs on its territory," reads the note. Such amendments could be based on both the EU's subsidiarity principle and the principle of unanimity for decisions on land use. "Such an 'opt-out' clause could be formulated in quite straightforward legal terms and could easily be integrated into the existing legislation," concludes the note.

Last March, a declaration by the Dutch delegation similarly proposed to separate the market authorisation of GMOs from their cultivation and give member states total control over decisions on the latter.

“It is difficult to say what is most striking on this approach – the chuzpe with which the Austrian government advocates to legalize its own constant breaking of the existing EU legislation by such a general ‘opt-out clause’ – or the naivety of the statement that a little and simple amendment to the current EU legislative framework on GMOs would do the trick.” Garlich von Essen, Secretary General of the European Seed Association ESA commented on the proposal.

But the seed industry is most worried about the lukewarm reaction to the proposal from the European Commission. “It is understandable that the Commission is tired of being blamed for what is in fact a failure of Member States to apply their own legislation on GMOs. But the Commission is supposed to defend the single market and uphold the application of EU law. That’s the Commission’s role, not to be everybody’s darling.” von Essen calls upon the EU’s executive body to stand firm on the Union’s principles.