1 “After a game is before another game,” coined by the famous German football player and national team trainer Sepp Herberger.

2 See Proposal for a Regulation of the European Parliament and of the Council amending Directive 2001/18/EC as regards the possibility for the Member States to restrict or prohibit the cultivation of GMOs in their territory, COM (2010) 375 final from 13.7.2010. The proposal is currently awaiting the 1st reading in the European Parliament as part of the ordinary legislative procedure (former co-decision) according to Art. 294 TFEU.

3 Directive 2001/18/EC of the European Parliament and of the Council on the deliberate release into the environment of genetically modified organisms, OJ 2001 L 106/1.

4 See Commission Recommendation on guidelines for the development of national co-existence measures to avoid the unintended presence of GMOs in conventional and organic crops, OJ 2010 C 200/1.

5 See Commission proposal, supra note 2, pp. 3, 8, 11.

6 See Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, OJ 2007, C 306/1.

7 It will, therefore, not cover the new Commission Recommendation on co-existence, see supra note 4. On this and further aspects of the latest reform of the GMO framework see the other symposium contributions in this issue.

8 See for a more detailed historical overview the symposium contribution by Shane Morris and Charles Spillane in this issue.

9 Council Directive 90/220/EEC on the deliberate release into the environment of genetically modified organisms OJ 1990 L 117/15; this measure was complemented by Council Directive 90/219/EEC on the contained use of genetically modified mirco-organisms OJ 1990, L 117/1.

10 Regulation (EC) No 258/97 of the European Parliament and the Council concerning novel foods and novel food ingredients, OJ 1997, L 43/1.

11 Regulation (EC) 1829/2003 of the European Parliament and of the Council on genetically modified food and feed, OJ 2003, L 268/1.

12 In addition to the legislative instruments the Commission also adopted a soft instrument concerning the so-called “co-existence”, see Commission Recommendation on guidelines for the development of national strategies and best practices to ensure the coexistence of genetically modified crops with conventional and organic farming, OJ 2003, L 189/36. See on this the symposium contribution by Justo Corti Varela in this issue.

13 See the ‘Environment’ Council Conclusions on Genetically Modified Organisms from 5 December 2008, available on the Internet at <http://register.consilium.europa.eu/pdf/en/08/st16/st16882.en08.pdf> (last accessed on 25 September 2010).

14 COM (2010) 375 final.

15 See Commission proposal, supra note 2, pp. 3 and 6.

16 This might seem unusual seeing that the measure does not aim at approximating national provisions on GMO cultivation, but rather at granting more freedom to the Member States to opt out from a harmonised framework for EU authorisations on GMO cultivation. However, the choice of the legal basis of Art. 114 TFEU for the proposed amendment follows the original choice of the legal basis for the Deliberate Release Directive, which was the forerunner of Art. 114 TFEU, namely Art. 95 TEC.

17 Commission proposal, supra note 2, p. 11.

18 Commission proposal, supra note 2, pp. 8 and 11.

19 A further procedural requirement for the application of this “optout” clause would be the notification of the planned national measure to the other member states and the Commission one month prior to its adoption. In addition, the formulation “reasoned measures” in the last paragraph of the clause indicates a reason-giving requirement for the member state.

20 Note that this provision does not as such provide the freedom to regulate GMO cultivation at national rather than at EU level. The EU authorisation procedures as set out in the Deliberate Release Directive as regards cultivation of GM crops and in the Regulation 1829/2003 as regards cultivation of GMOs to be marketed in or as food are, at least formally, not affected by this amendment. Another implied condition for recourse to Article 26b, therefore, would be that the GMO in question has already been authorized at EU level in accordance with the Deliberate Release Directive or Regulation 1829/2003. Otherwise, of course, the free circulation of the GMO on the EU market would be unlawful as such due to the general prior-authorisation requirement for all GMOs to be marketed in the EU.

21 See the Commission report on socio-economic aspects of GMO cultivation expected in the end of 2010.

22 See the reference of the Commission to the experience with previous national bans on GMOs in its Communication on the freedom for Member States to decide on the cultivation of genetically modified crops, COM (2010) 380 final, p. 6 adopted together with the legislative proposal to amend the Deliberate Release Directive and the new co-existence recommendation.

23 On co-existence, see the symposium contribution by Justo Corti Varela in this issue.

24 For different remarks on the impact of the Commission proposal on the scope of the EU competence, see Sara Poli's contribution to this issue.

25 An invitation to stronger engage in public debate on GMOs at national level seems to be implied by the following statement in the explanatory memorandum of the Commission proposal, supra note 2, p. 6: “Given the more national or regional approach towards GMO cultivation, it is also expected that the level of public involvement in the national and regional decision making will increase and Member States will allocate more resources and time to involve their public with regard to their decisions.”

26 Relevant grounds for potential national “opt-outs” on GMOs could especially be the grounds of public morality and public policy. See Case C-121/85 Conegate Limited v. HM Customs & Excise (1986) ECR-1007; see also the ECJ case-law on the mandatory requirements developed under former Article 30 TEC, one of such requirements being consumer protection. See Case C-120/78 Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein (1979) ECR-649; Case C-178/84 Commission v. Germany (1987) ECR-1227.

27 Which would decide in preliminary rulings after being asked by a national court, or in an infringement procedure by the commission.

28 See the recent Case C-165/08 Commission v. Poland (2009) ECR I-6843.

29 See Commission proposal, supra note 2, p. 4.

30 See Euractive, “EU governments slam Brussels’ GM crops plan”, 3 October 2010, available on the Internet at <http://www.euractiv.com/en/cap/eu-governments-slam-brussels-gm-crops-plannews-498188> (last accessed on 26 October 2010).

31 See Euractiv, “First ‘Citizens’ Initiative’ to call for GM crop freeze” from 6 October 2010, available on the Internet at <http://www.euractiv.com/en/cap/first-citizens-initiative-call-gm-crop-freezenews-498524> (last accessed on 26 October 2010).

32 Note that EU authorisations for cultivation of GMOs can be granted under both the Deliberate Release Directive and Regulation 1829/2003, and that, consequently, the draft “opt-out” clause shall also apply to GMOs authorised under of one these legal instruments.

33 Comitology committees are composed of representatives of the Member State administrations, and fulfill the function of assisting the Commission whenever the latter exercises the function of implementing EU law.

34 See Art. 18 (1) and 30 (2) of Directive 2001/18 and Art. 7 (1) and 35 (2) of Regulation 1829/2003 referring to Council Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ 1999, L 184/23.

35 COM (2010) 83 final. The proposal is currently undergoing the ordinary legislative procedure (former co-decision).

36 See Hofmann, Herwig, “Legislation, Delegation, and Implementation Under the Treaty of Lisbon: Typology Meets Reality,” 15(4) European Law Journal (2009), pp. 482 et sqq.CrossRefGoogle Scholar

37 See Commission Proposal, supra note 36, p. 3 and Art. 4 on p. 10.

38 See Commission Proposal, supra note 36, p. 3 and Art. 5 on p. 10.

39 See supra note 35.

40 Establishing the regulatory procedure with scrutiny.

41 See Commission Proposal, supra note 36, p. 5 and Art. 10 on p. 13.

42 See Commission Proposal, supra note 36, Art. 2 (2) on p. 9.

43 See Commission Proposal supra note 36, p. 4.

44 Such obligation under the current Comitology rules in the past provoked judicial procedures because of failure to act against the Commission initiated by Biotech companies at the General Court, see Case T-139/07, Pioneer Hi-Bred International v. Commission, Order published in OJ 2009 C-267/64; and Case T-293/08, BASF Plant Science and Others v. Commission, Order published in OJ 2010 C 221/43; both cases were not adjudicated because they became devoid of purpose in the course of proceedings; see comment on both cases in Weimer, Maria, “Applying Precaution in EU Authorisation of Genetically Modified Products – Challenges and Suggestions for Reform”, 16(5) European Law Journal (2010), pp. 624 et sqq., at p. 647.CrossRefGoogle Scholar