The EU’s paralysis with respect to decision-making on genetically-modified crops was illustrated once again at last Friday’s (27 January 2017) meeting of the Standing Committee on Plants, Animals, Food and Feed when the committee failed to reach a qualified majority either for or against the renewal of the cultivation licence for the GM maize MON810 (currently the only GM crop licensed for cultivation in the EU) as well as on authorisations for cultivation of two other GM varieties ‘maize 1507’ and ‘Bt11’.
This is despite the fact that 19 Member States have excluded all or part of their territory from the cultivation of these three GMOs, pursuant to the provisions of Directive (EU) 2015/412 (the ‘cultivation opt-out’ directive).
The Commission’s expectation that allowing countries to ‘opt out’ of cultivation of an approved GM crop would soften their opposition to allowing other countries to proceed with cultivation if they so wished has only been partially fulfilled.
The case of maize 1507
To examine this issue, we look at the voting behaviour of Member States on the approval of maize 1507, which is by now the longest-running GM saga. Maize 1507 is genetically modified to express the Bt protein conferring resistance to corn borer and to tolerate the herbicide glufosinate-ammonium (not to be confused with glyphosate).
Approval for cultivation was initially sought by the applicant, Pioneer, in 2001. The European Food Safety Authority has been asked for its risk assessment on many occasions. Although its recommendations have become increasingly nuanced over time (see this history up to 2014 recounted by Weimer and Pisani), it has consistently restated the view of the original Panel in 2005 that maize 1507 will not have an adverse effect on human and animal health or the environment in the context of its proposed use.
Pioneer has successfully brought two cases at the European Court of Justice against the Commission for failing to follow the procedures laid down for approval of GM varieties, most recently in 2013. Following that Court decision, the Commission prepared a draft implementing act for approval which was voted on by Member States in February 2014, with the usual ‘no opinion’ result.
Subsequently, new papers on potential adverse environmental impacts of the cultivation of Bt-maize events were published. The Commission asked EFSA to evaluate the significance of these papers for its previous risk assessment conclusions and risk management recommendations for these crops, including maize 1507. In various resolutions, most recently in October 2016, the European Parliament has voted by large majorities urging the Commission not to proceed with approval.
EFSA published its latest opinions in July 2016 and September 2016. EFSA concluded that there were no data to indicate the necessity to revise its previous conclusions and that its previous recommendations remain valid and applicable.
On this basis, the Commission resubmitted the file for approval by Member States in the Standing Committee for Plants, Animals, Food and Feed last week.
Voting behaviour when deciding on maize 1507
The following table compares the voting behaviour of Member States on the last occasion when maize 1507 was up for approval in February 2014 and their voting behaviour last week. There has indeed been some movement following the adoption of the ‘cultivation opt-out’ directive in 2015.
Italy, Lithuania, Netherlands and Romania switched sides, voting against last time but in favour of approval last week. Croatia, Malta and Slovakia which were against last time abstained last week. Moving in the other direction, Sweden which voted in favour on the previous occasion voted against last week. This means that there were 8 countries in favour of approval last week and 13 against, compared to 5 countries in favour of approval and 19 against in 2014.
However, under the rules for qualified majority voting, there was neither a qualified majority in favour nor against on either occasion and on both occasions the result was ‘no opinion’. The file will now be submitted to the appeal committee also consisting of the Member States. Should that committee also fail to arrive at a definite opinion, the comitology rules require the Commission ultimately to follow the EFSA advice and to approve maize 1507 for cultivation.
The Juncker Commission and its commitments
It was precisely this obligation on the Commission to act as legislator in authorising GM varieties that Commission President Juncker made a commitment to review in setting out his political priorities for the new Commission.
I also intend to review the legislation applicable to the authorisation of Genetically Modified Organisms. To me, it is simply not right that under the current rules, the Commission is legally forced to authorise new organisms for import and processing even though a clear majority of Member States is against. The Commission should be in a position to give the majority view of democratically elected governments at least the same weight as scientific advice, notably when it comes to the safety of the food we eat and the environment in which we live.
He returned to this theme in his State of the Union address in September 2016.
We also have to take responsibility in recognising when some decisions are not for us to take. It is not right that when EU countries cannot decide among themselves whether or not to ban the use of glyphosate in herbicides, the Commission is forced by Parliament and Council to take a decision. So we will change those rules – because that is not democracy.
The Commission in its Work Programme for 2017 published in October 2016 then contained the following commitment.
The Commission will propose legislation to align existing acts with the Treaty provisions on delegated and implementing acts, thus phasing out the regulatory procedure with scrutiny. We will also assess the democratic legitimacy of existing procedures for the adoption of delegated and implementing acts and consider options for changing existing procedures for the adoption of certain secondary acts.
Potential impact of Brexit on GM voting majorities
Before considering further this promised Commission initiative, it is worth asking whether the UK’s Brexit might come to President Juncker’s assistance if the ultimate decision could be postponed to the Spring of 2019 when the UK is expected to leave the Union (while such a delay is not foreseen in the authorised procedures, procrastination has been a feature of this file to date). The UK has been a consistent supporter of the adoption of EFSA Opinions. It has therefore always voted in favour of approving a GM variety when this has been the EFSA recommendation.
With the UK out of the Union, might the balance of forces in the regulatory committee move sufficiently to allow a qualified majority against the proposal? If the Member States were at last able to make a definite decision, the Commission would no longer be put in the invidious position, as a non-elected body, of having the final word on an intensely politicised topic.
Unfortunately for the Commission, it seems the absence of the UK would not make any impact on the customary ‘no opinion’ outcomes in the regulatory committee. The following table recalculates the voting positions both in January 2017 and in February 2014 (when fewer Member States were in favour of approval) assuming the absence of the UK. The voting rules applying after 1 March 2017 under the Lisbon Treaty have been used. Under these rules, a proposal must receive the support of at least 55% of countries representing at least 65% of the EU population (the ‘double majority’). A proposal can be stopped with a blocking minority which must include at least four Council members representing more than 35% of the EU population.
In February 2014, no formal vote was taken so the voting positions represent ‘voting intentions’. Also, the voting on that occasion used the voting weights laid down in the Nice Treaty representing ‘weighted voting’. For comparison for 2014, I have shown both the actual voting outcome based on votes cast and the outcome using the population weights for each Member State prescribed under the ‘double majority’ procedure. I do not know whether the vote last week used the Nice voting weights or the ‘double majority’ weights, but as only the latter will be used after 1 March 2017, I have made the calculations on that basis. Voting outcomes are shown for the EU-28 (actual outcomes) and for the EU-27 assuming the absence of the United Kingdom.
In 2014, those opposing approval clearly met the country majority requirement (55%) but narrowly failed to meet the weighted voting majority (65%) as the votes of the countries voting against only summed to just less than 60%. The double majority voting weights would have reduced the voting share of the ‘Against’ countries (the introduction of this system gave somewhat higher weights to larger countries than the Nice system). If countries were to vote as they did in 2014, but this time without the UK, under the Lisbon double majority weights the ‘Against’ countries would still not muster the two-thirds population majority required to issue a negative opinion.
This conclusion holds even more strongly if we assume countries would vote as they did in January 2017 because the negative opinion was softer on the second occasion. Thus, at least for these GM decisions, it does not look as if Brexit would allow the regulatory committee to come to a more definitive opinion than it has been able to do to date.
The Commission intends to address this perceived ‘democratic deficit’ by changing the rules governing the comitology procedure. AGRAFACTS reports that the Commission College is set to adopt a Communication Comitology procedures – more democracy for the adoption of delegated & implementing acts, as well as a legislative proposal for the reform of comitology rules in February.
Various options to reduce the risk of ‘no opinion’ votes in the Appeal Committee will be canvassed. It remains to be seen if the Commission will risk the displeasure of the European Court of Justice again by delaying its approval of the three GM varieties under discussion last week until any changes to the comitology procedures come into effect.
This post was written by Alan Matthews
Photo credit: ARC2020