3 Febraury 2011

(Reuters) - European Union governments could ban the cultivation of genetically modified (GM) crops to maintain public order in the face of popular opposition to the technology, the bloc's executive said in a draft document.

Bans could also be justified on public morality grounds, such as religious or philosophical concerns over GM technology, according to a list drawn up by the European Commission as part of plans to let states decide whether to grow or ban GM crops.

The list was drafted after EU countries asked the Commission to spell out the grounds on which they could justify proposed GM crop bans. While it is not yet final, it gives a clear indication of the Commission's likely recommendations.

"Such reasons ... could be invoked, alone or where relevant in combination, by a member state to restrict or prohibit GMO cultivation in all or part of its territory," said the document drafted by the Commission's consumer affairs department and seen by Reuters.

Other possible reasons on the "open list" include safeguarding the choice of producers and consumers to grow and buy non-GM products, town and country planning decisions, and preserving natural areas or traditional farming practices.

When using any of the listed reasons as the basis for a ban, EU states must ensure restrictions are "justified, proportionate and non-discriminatory," the document added.

The Commission drew up the list after several EU governments voiced concerns that without solid legal arguments, national cultivation bans could leave them open to legal challenges in the World Trade Organization (WTO).

By telling governments what arguments they might use to ban GM crops, the Commission hopes to soften strong opposition from several large EU states to its plan to devolve to national level any decisions on allowing genetically modified organisms (GMOs).

NO LEGAL CERTAINTY

The list is set to be discussed by EU government experts in Brussels on February 11.

A Commission spokesman said the EU executive would wait to gauge the reaction from governments, but there were currently no plans to amend the GM cultivation proposals and add the list to the draft legislation.

One EU legal expert said that although the reasons on the list were drawn from existing EU legislation and European court rulings, the only way to make them legally secure would be to add them to the draft legislation.

"Without that, the legal validity of this list is quite questionable, and would not protect EU countries against legal action by biotech companies, farmers or WTO trade partners," said Thijs Etty, assistant professor of EU law at VU University Amsterdam.

Even if the list was added to the legislation, most of the reasons given are not valid under existing WTO regulations, and countries will struggle to prove that national GM crop bans based on such reasons are proportionate and non-discriminatory, Etty added.

The Commission proposed giving governments the power to decide on bans in July, in a bid to break a long-standing deadlock in EU GM crop approvals which has seen just two varieties approved for cultivation in more than 12 years.