简体中文
Русский
Polski
Free Essays - Law Essays
Community Law Does Not Permit Local Authorities Such As Devon County Council to Declare Their Region a GMO Free Zone.
A critical discussion will be undertaken to analyse the prohibtions imposed by Community Law which prohibit Local Authorities declaring their region a GMO free zone. A careful analysis of the Commission’s decision on 2 Spetember 2003 will also be undertaken. Consideration will also be given to the relevant articles of the EC Treaty.
This study will take into account Articles 95(5) and 95(6) of the EC Treaty and the Commission’s decision on 2 Spetember 2003 regarding the Upper Austrian Act on the prohibition of genetic engineering 2002.
As previously stated, the first part of this study will state and detail the exisiting law as it stands today. Therefore, a detailed of analysis of the provisions of Articles 95(5) and 95(6) must now be undertaken and each Article shall be dealt with separately. Article 95(5) provides as follows:
Moreover, without prejudice to paragraph 4, if, after the adoption by the Council or by the Commission of a harmonisation measure, a Member State deems it necessary tointroduce national provisions based on new scientific evidence relating to the protectionof the environment or the working environment on grounds of a problem specific to thatMember State arising after the adoption of the harmonisation measure, it shall notify the Commission of the envisaged provisions as well as the grounds for introduicng them.
Article 95(5) provides that a Member State sees it as a necessity to introduce new law for the portection of the environment or the working environment on the grounds of a specific problem, that Member State must notify the Commission of its intention to introduce the new law. The new law or provisions must be based on scientific evidence. Once the Member State has notified the Commission of its intention to introduce the new law or provisions, the Commission will conduct a detailed assessment of the draft Act. The assessment of the draft Act must be conducted in line with the provisions of Article 95(5). It is important to note that all the conditions laid down in Article 95(5) must be satisfied if the national derogating provisions of the Member State concerned are to be accepted by the Commission.
The second Article that requires consideration is Article 95(6). Article 95(6) works alongside Article 95(5) and provides as follows:
“The Commission shall, within six months of the notifications as referred to inparagraphs 4 and 5, approve or reject the national provisions involved after havingverified whether or not they are a means of arbitrary discrmination or a disguisedrestriction on trade between Member States and whether or not they shall constitute anobstacle to the functioning of the internal market.
In the absence of a decision by the Commission within this period the national provisions referred to in paragraphs 4 and 5 shall be deemed to have approved.
When justified by the complexity of the matter and in the absence of danger for human health, the Commission may notify the Member State concerned that the period referred to in this paragraph may be extended for a further period of up to six months.”
Article 95(6) provides that the Commission shall have 6 months from the date on which the notifications were made to either approve or reject the national provisions. The Commission may only approve or reject the national provisions only after they have decided whether or not they are a form of arbitrary discrimination or whether they are a disguised restriction on trade between Member States and whether they will be an obstacle to the fuctioning of the internal market.
Should the Commission not reach a decision within the 6-month period, then the national provisions will be deemed to have been approved. If the matter is complex in nature and is not seen as a danger to human health the Commission may extend the period of time by a further 6 months. The Member State concerned must be notified of such an extension.
Now that the legal position and current law has been analysed, the second part of the study must now be commenced. There has, to date, been only one such Commission decision concerning national provisions aimed at declaring a region within a Member State a GMO free zone. The case concerned the Upper Austrian Act on the prohibition of genetic engineering 2002. The aim of these provisions was establish a temporary ban on the use of GMOs in Upper Austria.
The facts of this case are that Austria notified the Commission in compliance with the provisions of Article 95(5) of the draft provisions concerning the Upper Austrian Act on the prohibition of genetic engineering 2002. The measures were supported by a study that showed alleged new scientific evidence highlighting potential risks related to GMOs and which were specific to Upper Austria. Upper Austria considered that for the protection of the environment and agriculture all GMOs were to be banned.
The Upper Austrian regional Government had the view that the measures were necessary for the protection of “organic and traditional agricultural production as well as as plant and animal genetic rseources from hybridisation with GMOs”. They argued that a ban on genetically engineered seeds was necessary and was justified on the gorund of the issue of the “co-existence between GM and non-GM method of agricultural production is not fully resolved” .
These provisions would represent a prohibition which would derrogate away from relevant Community harminisation measures. In this case, Austria considered that its measures would constitute a derrogation and that it would be justified under the provisions of Article 95(5). The Commission accepted the notification and duly gave consideration to and duly assessed the provisions and measures in the Upper Austrian Act on the prohibition of genetic engineering 2002 as put forward by Austria.
The Commission carried out their assessment of the provisions of the draft Act in complete co-operation with the requirements of Article 95(5). As previously stated, it is vitally important that all the conditions of Article 95(5) be satisfied in order for the provisions to be accepted by the Commission.
The Commission had to consult with the European Food Safety Authority in order to gain scientific opinion so as to determine whether the study provided by the Austrian authorities could be said to valid evdience in relation to the protection of the environment and the working evironment so as to satisfy this requirement in Article 95(5). The European Food Safety Authority came to two conclusions in that firstly “the scientific information presented in the report provided no new data that would invalidate the provisions for the environmental risk assessment established under Directive 90/220/EEC or Directive 2001/18/EC”, and secondly that “the scientific information prersented in the report provided no new scientific evidence, in terms of risk to human health and the environment, that would justify a general prohibition of cultivation of genetically modified seeds and propogating material, the use of transgenic animals for breeding purposes under Directive 90/220/EEC or Directive 2001/18/EC in this region of Austria”.
It was on the basis of the above conclusions that the Commission took the decision to reject Austria’s request to introduce national measures banning the use of GMOs in the region of Upper Austria for a three-year period. On rejecting Austria’s request, the Environment Commissioner stated that:
“we have analysed the Austrian measures in great detail, and legally speaking, this seems a clear-cut case. The Treaty requirements allowing for a derogation from EU legislation are not met and, in its role of guardian of the Treaty, the Commission can only reject the Austrian request. I have, of course, full rsepect for the concerns of the Austrianauthorities for the protection of the environment and human health, and have no problem to recognise that co-existence is an important issue to be addressed. However,I would like to point out that these are common concerns, shared by many regionsacross, Europe, for which is it possible to find a viable response within the exisiting legal framework”.
After careful and thorough examination of Articles 95(5) and 95(6) of the EC Treaty and after careful and thorough examination of the present case law, it is quite apparent from this view point that to a certain extent that present EC Community Law does prohibit Local Authorities such as Devon County Council from declaring that their region is GMO free zone. The Commission in its judgement in the Upper Austria Act case has made it clear that even though the EC Treaty does allow for derogations from EU legislation this particular form of restriction is strictly prohibited because it clearly does not meet the requirements required for allowing derogation away from the present EU legislation. The Upper Austria Act case must treated as being a precedent case which must not be ignored by any authorities wishing to seek to impose such restrictions in their region or regions.
Find out how a custom written essay can help you
Click hereAll of the essays in this section were written by students and then submitted to us to publish and help others. Thanks to all of the students who have submitted their essays to us. You should not hand in our essays as your own. We do not condone plagiarism! If you need custom essays on your exact essay questions, then have a look at our essay writing service.
