Notification according to Article 95(5) of the EC Treaty — Request for authorisation to introduce national provisions incompatible with a Community Harmonisation Measure (Text with EEA relevance)
Date: 2003-05-28
Institutions: European Commission
Subjects: Upper Austria, approximation of laws, derogation from EU law, environmental protection, genetically modified organism, national law, organic farming

C 126/4

EN

Official Journal of the European Union

28.5.2003

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

Request for authorisation to introduce national provisions incompatible with a Community
Harmonisation Measure

(2003/C 126/03)

(Text with EEA relevance)

(Notification No 2003/A/2780)

By letter of 13 March 2003 the Republic of Austria notified to
the Commission the regional provisions concerning the ‘Upper
Austrian Act on the prohibition of genetic engineering 2002’ it
deemed necessary to introduce by way of derogation from the
provisions of
the Council
the European Parliament and of
Directive 2001/18/EC on the deliberate release into the
genetically modified organisms (1). The
environment of
Commission received the Austrian notification on 13 March
2003.

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
the
it shall notify the
adoption of the harmonisation measure,
Commission of
the
grounds for introducing them’.

the envisaged provisions as well as

state arising after

‘the Commission shall, within six
According to Article 95(6),
months of
the national
the notification approve or reject
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’.

It

seeks

The draft Act (2) is primarily concerned with the protection of
nature and the environment, natural biodiversity and organic
production.
to ban the cultivation of GM seed
(including GM seed with Community authorisation) although
it accepts adventitious traces of GM seeds in conventional
stocks to a level of 0,1 %. It also seeks to ban the use of
transgenic animals for breeding and in particular their release
for hunting
for
compensatory mechanisms for monetary losses due to the
is
presence of GMOs in conventional products. The Act
deemed to be a temporary measure, applicable for three years.

and fishing.

Furthermore,

it provides

The Upper Austrian regional Government deems it necessary
to introduce measures intended to protect organic and tradi-
tional agricultural production as well as plant and animal

(1) OJ L 106, 17.4.2001, p. 1.
(2) Provincial Act, prohibiting the cultivation of genetically modified
seed and planting material and the use of transgenic animals for
breeding purposes as well as the release of
transgenic animals
especially for
the purposes of hunting and fishing (Upper
Austrian Act prohibiting genetic engineering 2002.

resources

genetic
from hybridisation with GMOs. These
measures are based on account of alleged special circumstances
in Upper Austria and on the fact that Upper Austria authorities
the issue of coexistence between GM and
consider
non-GM method of agricultural production is still
largely
unsettled. A study advocating a GMO ban for Upper Austria
until all potential risks related to these types of organisms are
clarified is joined to the notification (3).

that

The Commission reminds interested parties that possible obser-
vations 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,
to communicate to the
the Commission reserves the right
Republic of Austria any observations that may be submitted.

Further information regarding the notification can be obtained
from:

Bundesministerium für Wirtschaft und Arbeit
Abt. C2/1
Stubenring 1
A-1010 Wien
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

Amt der Oberösterreichischen Landesregierung
Klosterstraße 7
A-4021 Linz
Fax (43-1) 73 27 72 01 17 13

Contact point in the European Commission:

Hervé Martin
European Commission
Directorate-General for 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

(3) ‘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
security and
generations).

the Federal Ministry for

social