Posts Tagged Seal Pups
The Council has published its first-reading position on a draft directive granting member states more flexibility to decide whether or not they wish to cultivate genetically modified organisms(GMOs) on their territory – I had flagged it here before I had an opportunity chance to look at the text. My initial reaction is confirmed however.
Under the text, the possibility would be provided for a Member State to request the Commission to present to the notifier/applicant its demand to adjust the geographical scope of its notification/application to the effect that all or part of the territory of that Member State be excluded from cultivation. The Commission shall facilitate the procedure by presenting the request of the Member State to the notifier/applicant without delay and the notifier/applicant should respond to that request within an established time-limit. In the event of refusal, the Member State may block cultivation on its territory for reasons other than the scientific assessment which will have been carried out by the relevant authorities. (And note that the EC may after refusal also proceed to adjusting geographically the request for authorisation for scientific reasons).
The list of ‘compelling reasons’ which may lead a Member State to refuse cultivation, is non-exhaustively listed as
(a) environmental policy objectives distinct from the elements assessed according to the Directive and to Regulation 1829/2003; (since those environmental objectives will have been considered in the scientific assessment);
(b) town and country planning;
(c) land use;
(d) socio-economic impacts;
(e) cross-contamination with other products;
(f) agricultural policy objectives; and
(g) public policy.
Those grounds may be invoked individually or in combination, with the exception of the public policy exception (which awkwardly needs to be coupled with one of the other grounds). An authorisation procedure will apply (with no need to apply the transparency Directive, 98/34, concurrently).
An important point to note is that the Directive only applies to growing (‘cultivation’) of GMOs in situ: not to the import, marketing etc. of GMO containing products, food, feed etc. I would not be surprised that in practice this will mean a continuation of industry practice to leave the EU altogether for growing GMOs, focusing its efforts instead on securing authorisation to market. (This regime does not feature the much wider leeway for non-science driven objections).
Today is the Saint’s Day of Saint Ignatius Loyola, founder of the Jesuits. A suitable day to ponder a proposal heavy with risk analysis, regulatory theory, and trade law implications.
Directive 2001/18, Domestic regulatory autonomy, Ethics, EU, European union, Genetically modified organisms, GMO, Internal market, Market Authorisation, Precaution, Precautionary principle, Public Morals, Public policy, Risk, Risk assessment, Risk communication, Risk management, Seal Pups, Trade, Voluntary Export Restraints, VRA, World Trade Organisation, WTO
The compromise (official minutes of the Meeting concerned reveal very little detail; more is available here) between the EU Member States on the market authorisation for GMOs has been condemned by opponents and proponents of the technology alike. Market authorisation for GMOs has a long and troublesome history in the EU, with most recently the spat over Pioneer 1507.
I would love to get my hands on any kind of legal formulation for the apparent deal which as been struck. As is common knowledge, some Member States object categorically to GMOs on a mix of scientific (precautionary), moral, sustainability grounds. The EU have for some time been trying to find a way to accommodate moral objections in particular. (Where there are serious indications of scientific uncertainty vis-a-vis a particular application, these are picked up by EFSA and authorisation will be refused for the EU as a whole: this is not problematic per se – lest of course per the US arguments at the WTO in EC Biotech, one does not accept that there is scientific uncertainty). The suggested way out is now, apparently, for the Member States concerned to request the applicant companies, via the European Commission, to exclude their territory from the application.
This raises all sorts of questions. (Including exam questions). It near-effectively outsources regulatory autonomy to the applicant companies. The suggested regime reminds me of the Voluntary Export Restraints which were popular(ish) in the 1980s – and highly controversial under GATT. Under the WTO, they are all but blacklisted. Especially after SEAL pups I believe it would be much better for the EU regime itself to allow opt-out, even of individual Member States, on moral or ethical grounds (again, the scientific debate is different) and to take any WTO fight into open field.
Should anyone out there have the actual text which is being tabled (in the UK English sense of the word) – and the liberty to share it, I would love to hear from you. (Postscript 31 July 2014: see later post with link to text).
Directive 2001/18, Domestic regulatory autonomy, Ethics, EU, European union, Genetically modified organisms, GMO, Market Authorisation, Precaution, Precautionary principle, Public Morals, Risk, Risk assessment, Risk communication, Risk management, Seal Pups, Trade, Voluntary Export Restraints, VRA, World Trade Organisation, WTO
EU Seal product ban upheld by the ECJ – (unsubstantiated) Inuit and traders’ arguments fall on deaf ears
Postscript: the ECJ equally dismissed, on 3 October 2013, the Inuit’s action against the basic Regulation: see case C-583/11P.
Postscript 2, 19 March 2015: Kokott AG suggests the appeal against the judgment in the posting below, be equally dismissed.
The European Court of Justice has dismissed an application by Inuit community group, Inuit Tapiriit Kanatami (ITK), and the Fur Institute of Canada, for the Commission’s Implementing legislation of the EU’s ‘Seal Pups Regulation‘ [seal products Regulation somehow has not made it into mainstream language] to be held illegal. The Regulation effectively bans all seal products from being placed on the EU market, with limited exceptions, and it does so on the basis of animal welfare considerations:
Article 3 - Conditions for placing on the market 1. The placing on the market of seal products shall be allowed only where the seal products result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence. These conditions shall apply at the time or point of import for imported products. 2. By way of derogation from paragraph 1: (a) the import of seal products shall also be allowed where it is of an occasional nature and consists exclusively of goods for the personal use of travellers or their families. The nature and quantity of such goods shall not be such as to indicate that they are being imported for commercial reasons; (b) the placing on the market of seal products shall also be allowed where the seal products result from by-products of hunting that is regulated by national law and conducted for the sole purpose of the sustainable management of marine resources. Such placing on the market shall be allowed only on a non-profit basis. The nature and quantity of the seal products shall not be such as to indicate that they are being placed on the market for commercial reasons. The application of this paragraph shall not undermine the achievement of the objective of this Regulation. (...)'
Further detail for the application of the exceptions was provided by the Commission in follow-up regulation . It is the follow-up (implementing) Regulation which was the subject of current action. The applicants in this case argued as follows:
1. The basic Regulation lacks legal basis (i.e. Heads of power), for it was adopted on the basis of the Internal Market article of the EU Treaties, while in fact it was animal welfare considerations which led to the initiative. The Court disagreed: Member States had differing regulations in place with respect to seal products, or were planning them. This threatened a clear EU view on the matter and hence disruption of that internal market, whence justifying Article 114 TFEU (at the time: Article 95 EC). Watertight conclusion under EU law – even if paradoxically in order to safeguard the Internal Market, the EU effectively resorted to scrapping that very market.
2. Failing argument 1, the Regulation at any rate is disproportionate and incompatible with the principle of subsidiarity. The latter was dismissed on similar grounds as the review of the legal basis, referred to above. The former seems to have not been helped by the vagueness of the claims of applicants. In particular, they had put forward the view that the Inuit exemption is dead letter, for the communities concerned have to rely on commercial outlets to market their products, not having any such outlets themselves. The Court rejected this argument as too vague and unsubstantiated. It also rejected labelling (testifying to the killing having been done ‘humanely’) as an alternative, for the feasibility of such an option was examined and rejected in the run-up to the legislation.
3. Human rights. Right to property arguments were rejected by the Court, for viz the Inuit, they could still trade in the products concerned and the Court had already established that the ‘dead letter’ argument was unsubstantiated. Viz the applicants which are commercial operations, the Court referred to its earlier case-law the guarantees accorded by the right to property cannot be extended to protect mere commercial interests or opportunities, the uncertainties of which are part of the very essence of economic activity.
4. Ultra vires. The arguments that the Commission implementing Regulation exceeded what the Commission was entitled to regulate, in particular, that its enforcement measures were such as to make trade in Inuit seal products effectively impossible, even if it was instructed to lay down rules leading to a viable Inuit trade, were swiftly rejected by the Court. Again, it referred to a complete lack of data in the file substantiating the claim that all such trade would effectively be impossible.
The actions at the ECJ cannot of course be seen completely detached from the ongoing litigation against the EU over at the World Trade Organisation, on which Robert Howse has posted near-complete records of the hearings which this week finished in Geneva: that Panel report is one to look forward to (although judging by the sounds coming out of Geneva, the Panel would not exactly seem on top of things).
Animal Welfare, C-583/11P, Canada, Case T-526/10, CJEU, Domestic regulatory autonomy, ECJ, Ethics, European Court of Justice, European union, Extraterritoriality, Inuit, Legal basis, Locus standi, non-product-related production processes and -methods, nPr-PPMs, PPMs, production processes and -methods, Seal products, Seal Pups, Standing, World Trade Organisation, WTO
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