5 May 2011: The European Commission has released a staff working paper addressing legal considerations on the cultivation of genetically modified organisms (GMOs), raised in legal opinions by the EU Council and EU Parliament.

The paper is part of an ongoing debate on an amendment to the EU Directive on GMO regulation, which would allow member States to restrict or prohibit the cultivation of GMOs that have been approved at EU level, based on a list of objectives such as public morale or preventing environmental harm. The legal services of the EU Council and the EU Parliament had raised concerns regarding the compatibility of possible national measures adopted by member States with international trade law under the World Trade Organization (WTO).

The staff working paper presents an analysis of possible complaints by other WTO members and how these would be treated by the WTO Apellate Body. It argues that the EU has different regulatory approaches to non-GMOs and GMOs, although such regulations provide for neutral treatment of imported and domestic products. This implies that a non-EU WTO member wanting to export GMO products to the EU cannot use the treatment of a non-GMO product as the basis for a claim of violation of the requirement that an imported product must be treated no less favorably than the domestic like product.

This argument holds as long as the list of objectives laid out in the regulation meets certain conditions, which are laid out in the paper. The paper further states that the list of potentially legitimate objectives is open and not limited to the matters expressly identified in the general exceptions set out in the General Agreement on Tariffs and Trade (GATT). [EU Commission Staff Working Paper]