Abstract
Directive (EU) 2015/412 allows Member States to restrict the cultivation of genetically modified seed or propagating material, although their placing on the market has been authorized. This so-called opt-out is meant to resolve the current Member States’ conflict about gene technology by facilitating differences of states concerning cultivation regulations. The concept has at the same time the potential to pioneer a general reorientation of European and even global principles of free trade. Where as trade restrictions on grounds of health and environmental protection could thus far only be justified on a strict scientific basis, a variety of risk perceptions and evaluations are now made acceptable. The article explores what grounds may justify cultivation restrictions beyond those identified in a concrete environmental risk assessment. Two categories are suggested: general environmental concerns weighing systemic effects and uncertainty, and trans-environmental concerns such as the use-value of genetically modified plants, the avoidance of costs resulting from policies of coexistence with conventional plants, the halting of agricultural industrialisation, and ethical considerations. It is further examined if cultivation restrictions based on such grounds are compatible with the EU rules of free movement of goods and relevant WTO agreements. The pertinent report of a WTO-Panel on genetically modified plants is scrutinized for this purpose and a dissenting interpretation developed.
Highlights
Directive (EU) 2015/4121 allows Member States to restrict the cultivation of genetically modified seed or propagating material, their placing on the market has been authorized
Whereas trade restrictions on grounds of health and environmental protection could far only be justified on a strict scientific basis, a variety of risk perceptions and evaluations are made acceptable
Compromises were sought for the development of a generally binding framework; in a second phase, when it became obvious that differences were irreconcilable, compromises were sought enabling the coexistence of genetic engineering and conventional or organic agriculture respectively.[2]
Summary
Genetic engineering has triggered significant controversy, which became manifest in society, economy, academia and politics alike. This reliance on science has largely hemmed courts, both European and international, to acknowledge cultural differences in the perception and evaluation of risks.[21] Cultural traditions affect concerns about the environment and human health, in particular insofar as adverse effects escape scientific proof.[22] cultural traditions induce attitudes beyond the health and environmental realm They influence visions about life styles (“do we want meat from cloned pigs?”), agricultural practices (“do we want lifeless villages and dreary landscapes?”), technological progress (“do we want dequalifying high-tech?”), etc. We will see how the two can be defined and stand the test of court review in terms of the constitutionalised principles of free trade
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