Appeal against Commission's decision condemning Austria's law banning use of GMOs - Case Filing C-492/03: Austria v Commission

January 28, 2004

Luxembourg, 24 January 2004

Action brought on 20 November 2003 (fax on 13 November 2003) by the Republic of Austria against the Commission of the European Communities

(Case C-492/03) Official Journal publication of the filing

An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 20 November 2003 (fax on 13 November 2003) by the Republic of Austria, represented by Dr Harald Dossi, with an address for service in Luxembourg.

The Republic of Austria claims that the Court should:

1. annul the Commission's decision of 2 September 2003 (C(2003) 3117 Final), rejecting the national provisions on banning the use of genetically modified organisms (GMOs) in Upper Austria notified by the Republic of Austria pursuant to Article 95(5) EC (1);

2. order the Commission to pay the costs.

Pleas in law and main arguments

- Infringement of essential procedural requirements

- Failure to observe the right to participate in the procedure and the right to a fair hearing

There was a failure to comply with the right to a fair hearing, as the Republic of Austria was not given the opportunity to submit observations on the content of or the conclusion reached in the Commission's decision before it was adopted. Matters relevant to a hearing in this case included not only any observations submitted by Member States, but also the only crucial evidence referred to in the procedure, namely the opinion of the European Food Safety Authority (EFSA) of 4 July 2003. Had it been possible to refute the opinion of the EFSA, a different result might have been reached. As this could not occur in the absence of prior notice of the opinion, the decision-making process did not comply with constitutional principles relating to proper procedure and there was accordingly a breach of essential procedural requirements.

- Failure to observe the obligation to state reasons

There are serious deficiencies in the reasoning contained in the decision. In it, the Commission referred to and described the content and aims of the Austrian draft Law (the Upper Austria GentechnischVerbotgesetz (Law prohibiting genetic engineering) 2002; `the Oö. GTVG 2002') in general terms only.

In particular, the Commission gave only peripheral consideration to the fact that the Law is to be applicable for only three years from its adoption. In view of the fact that the statement of reasons for a legal measure must deal with arguments and concerns of the Member States which are clearly particularly important to them, the Commission's approach constitutes a gross infringement of the duty to state reasons.

- Infringement of the Treaty or a requirement when implementing it

In the opinion of the Republic of Austria, the draft Oö. GTVG 2002 fulfils the requirements of Article 95(5) EC.

- Protection of the environment

The Oö. GTVG 2002 is a measure to protect and preserve the natural environment, which includes the field of biodiversity in its widest sense. The notified measure relates not only to the coexistence of conventional agricultural crop production and the farming of genetically modified crops, but also protects flora and fauna as a whole from impairment or elimination by GMOs. The Commission was under a duty to answer the question of whether the Oö. GTVG 2002 was necessary for the protection of the environment or the working environment. It failed to do so, as the issue of the compatibility (coexistence) of organic and conventional GMO-free crop production and naturally growing crops with GMO farming on a wide scale was left out of its assessement. The issue of coexistence was as a result impermissibly excluded from the Community law definition of the environment. This distinction constitutes an approach that cannot be understood, as the concept of the environment is neither materially nor geographically restricted by the EC Treaty.

In procedures under Directive 2001/18/EC (2), the notion of coexistence must plainly be taken into account in the context of the environmental assessment that is to be carried out. It is not possible to separate the concepts of `environment' and `coexistence', as the Commission does, and their separation is arbitrary. Contrary to the Commission's view, the concerns raised by the Republic of Austria regarding the question of coexistence of genetically modified and unmodified cultivation clearly relate to specific environmental protection problems for the purposes of Article 95(5) EC.

- New scientific evidence

In reliance on the opinion of the EFSA, the Commission formed the view that the Müller Report, on which the Oö. GTVG 2002 is based, contains data which were for a large part available before the adoption of Directive 2001/18/EC . The Republic of Austria does not share this view. The decisive point is the finding in the Müller Report that organic and conventional GMO-free crop production in practice cannot possibly coexist with GMO farming on a wide scale and therefore appropriate environmental protection cannot be achieved. The study, like any serious work, admittedly contains a grounded scientific assessment of data that were partly already available, but this has no effect on its own value.

The decisive point is that the study itself contains new scientific evidence and conclusions and clearly shows that a current risk of negative consequences for the environment, fauna and flora cannot be ruled out.

- Problem specific to the Member State concerned

The structure of the farming system in Upper Austria, demonstrably consisting of small farms, coupled with the constant increase in the proportion of organically managed areas and the number of organically run farming enterprises, means that the character of this region of the Community is unique.

In the opinion of the Republic of Austria, the additional requirement laid down by Article 95(5) EC, that the problem which is specific to the Member State should have arisen only after the harmonisation measure has been adopted, has been fulfilled. The fact that concerns had arisen earlier in that regard does not preclude this. The decisive point is that the full extent of the problem became apparent only after the adoption of the harmonisation measure. Only on publication of the Müller study on 28 April 2002 was it possible to confirm the actual scope of the problem.

- Proportionality

The Oö. GTVG 2002 should be seen as a national provision which is necessary for the protection of the environment and which, having regard to the fact that it is applicable for a limited period of three years, also falls to be classified as proportionate.

- The precautionary principle and the principle that preventive action should be taken

The Oö. GTVG 2002 is a precautionary and preventive measure within the meaning of Article 174(2) EC. This provision states that Community policy on the environment is to aim at a high level of protection taking into account the diversity of situations in the various regions of the Community and is to be based inter alia on the precautionary principle and the principle that preventive action should be taken. The distinction drawn by the Community legislature makes sense only if the terms `precaution' and `prevention' are each given a separate meaning. `Precaution' accordingly begins at a point in time at which a threat to the environment is not sufficiently precise for `preventive action' to be necessary in relation to it. The Oö. GTVG 2002 is clearly aimed at the avoidance of risks and is therefore justified by the precautionary principle.

(1) OJ L 230 of 16.9.2003, p. 34.
(2) OJ L 106 of 17.4.2001, p. 1.

Official Journal of the EC

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