Notification according to Article 95(4) and (5) of the EC Treaty

Request for authorisation to introduce national provisions derogating from a Community harmonisation measure

(2003/C 278/02)

(Text with EEA relevance)

(Notification No 2003/A/9171)

1. By letter of 23 September 2003 the Republic of Austria notified to the Commission the regional provisions concerning the "Salzburg Act prohibiting genetic engineering" that it deems necessary to introduce by way of derogation from the provisions of the European Parliament and of the Council Directive 2001/18/EC on the deliberate release into the environment of genetically modified organisms(1). The Commission received the Austrian notification on 24 September 2003.

2. Article 95(4) provides that "if, after the adoption by the Council or by the Commission of a harmonisation measure, a Member State deems it necessary to maintain national provisions on ground of major needs referred to in Article 30, or relating to the protection of the environment or the working environment, it shall notify the Commission of these provisions as well as the grounds for maintaining them".

3. Article 95(5) provides that "if, after the adoption by the Council or by the Commission of a harmonisation measure, a Member State deems it necessary to introduce national provisions based on new scientific evidence relating to the protection of the environment or the working environment on grounds of a problem specific to that Member state arising after the adoption of the harmonisation measure, it shall notify the Commission of the envisaged provisions as well as the grounds for introducing them".

4. According to Article 95(6), "the Commission shall, within six months of the notification approve or reject the national provisions involved after having verified whether or not they are a means of arbitrary discrimination or a disguised restriction to trade between Member States and whether or not they shall constitute an obstacle to the functioning of the internal market".

5. The draft Act(2) is primarily concerned with the protection of nature and the environment, natural biodiversity and organic production. It seeks to ban the cultivation of GM seed (including GM seed with Community authorisation) and the use of transgenic animals for breeding and in particular their release for hunting and fishing. However, the draft Act permits such activities if they are performed in contained use facilities. Furthermore, it provides for compensatory mechanisms for monetary losses due to the presence of GMOs in conventional products. The Act is deemed to be a temporary measure, applicable for three years.

6. The Salzburg regional Government deems it necessary to introduce measures intended to protect organic and traditional agricultural production as well as plant and animal genetic resources from hybridisation with GMOs. These measures are based on the fact that Salzburg authorities consider that the issue of coexistence between GM and non-GM method of agricultural production is still largely unsettled. The draft Act relies on three studies, which allegedly advocate that a GMO ban for Salzburg is necessary since coexistence measures are practically impossible to be put in place and since there is a lack of thorough knowledge on all potential risks related to GMOs(3). Furthermore, the explanatory notes joined to the draft Act briefly describe the specificity of Salzburg region's ecosystem and agricultural practices, which are considered by the regional authorities as special circumstances justifying derogation to Directive 2001/18/EC.

7. The Commission reminds interested parties that possible observations on the Austrian notification will only be considered if received no later than one month after the publication of this notice in the Official Journal of the European Union. Furthermore, the Commission reserves the right to communicate to the Republic of Austria any observations that may be submitted.

8. Further information regarding the notification can be obtained from: Bundesministerium für Wirtschaft und Arbeit Abteilung C2/1 A - 1010 Wien, Stubenring 1 Tel. (43-1) 711 00 58 96 Fax (43-1) 715 96 51 or (43-1) 712 06 80 E-mail: post@tbt.bmwa.gv.at

Contact point in the European Commission: Hervé Martin European Commission Directorate General Environment

Unit C4

BU5 02/137 B - 1049 Brussels Tel. (32-2) 296 54 44 Fax (32-2) 299 10 67 E-mail: herve.martin@cec.eu.int

(1) OJ L 106, 17.4.2001, pp. 1-39.

(2) Draft Act prohibiting the cultivation of genetically modified seed and planting material, the use of transgenic animals for breeding purposes and the release of transgenic animals especially for the purposes of hunting and fishing (Salzburg Act prohibiting genetic engineering (German designation: GTVG)).

(3) The three studies are: "GM-free areas of farming: conception and analysis of scenarios and steps for realisation", Werner Müller, 28 April 2002 (carried out on behalf of the department for environment of the region of Upper Austria and of the Federal Ministry for social security and generations); "Scenario of coexistence of genetically modified, conventional and organic crops in European agriculture", Joint Research Centre, May 2002; "Report from the Working Group on the co-existence of genetically modified crops with conventional and organic crops", Danish Institute of Agricultural Science, 10 January 2003.