The EFSA Journal (2009) 1152, 1-18

SCIENTIFIC OPINION
Request from the European Commission related to the safeguard clause
invoked by Austria on maize lines MON863 according to Article 23 of
Directive 2001/18/EC1
Scientific Opinion of the Panel on Genetically Modified Organisms
(Question No EFSA-Q-2008-742)

Adopted on 15 June 2009
PANEL MEMBERS∗
Hans Christer Andersson, Salvatore Arpaia, Detlef Bartsch, Josep Casacuberta, Howard
Davies, Patrick du Jardin, Lieve Herman, Niels Hendriksen, Sirpa Kärenlampi, Jozsef Kiss,
Gijs Kleter, Ilona Kryspin-Sørensen, Harry Kuiper, Ingolf Nes, Nickolas Panopoulos, Joe
Perry, Annette Pöting, Joachim Schiemann, Willem Seinen, Jeremy Sweet and Jean-Michel
Wal.
SUMMARY
On 16 July 2008, Austria invoked Article 23 of Directive 2001/18/EC (safeguard clause) to
provisionally prohibit the import of the MON863 maize lines on its territory. Austria provided
detailed reasons listed in supporting documents.
On 3 September 2008, the European Food Safety Authority (EFSA) has been requested by the
European Commission to provide a scientific opinion on the statement and documents
submitted by Austria in the context of the safeguard clause invoked under Article 23 of
Directive 2001/18/EC.
In the light of the information package provided by Austria in support of its safeguard clause
and, having considered all relevant scientific publications, the Scientific Panel on Genetically
Modified Organisms (GMO Panel) of EFSA concludes that, in terms of risk to human and
animal health and the environment, no new scientific evidence was presented that would
invalidate the previous risk assessment of maize MON863. The EFSA GMO Panel also
concludes that no new scientific data or information was provided in support of adverse
effects of maize MON863 on the environment and on human and animal health in Austria.
1

For citation purposes: Scientific Opinion of the Panel on Genetically Modified Organisms on a request from the European
Commission related to the safeguard clause invoked by Austria on maize lines MON863 according to Article 23 of
Directive 2001/18/EC. The EFSA Journal (2009) 1152, 1-18.
∗
(minority opinion) This opinion is not shared by x members of the Panel. / (conflict of interest) x members of the Panel did
not participate in (part of) the discussion on the subject referred to above because of possible conflicts of interest.

© European Food Safety Authority, 2009

Safeguard clause invoked by Austria on maize MON863 according to Directive
2001/18/EC

Therefore, no specific scientific evidence, in terms of risk to human and animal health and the
environment, were provided that would justify the invocation of a safeguard clause under
Article 23 of Directive 2001/18/EC.
Key words:

GMOs, maize (Zea mays L.), MON863, Austria, safeguard clause, human
health and animal health, environment, Directive 2001/18/EC

The EFSA Journal (2009) 1152, 2-18

Safeguard clause invoked by Austria on maize MON863 according to Directive
2001/18/EC

TABLE OF CONTENTS
Panel Members............................................................................................................................ 1
Summary ..................................................................................................................................... 1
Table of Contents ........................................................................................................................ 3
Background ................................................................................................................................. 4
Terms of reference as provided by the European Commission .................................................. 4
Acknowledgements ..................................................................................................................... 4
Assessment .................................................................................................................................. 5
1. Introduction ......................................................................................................................... 5
2. Assessment of documents provided by Austria .................................................................. 5
2.1.
Food and feed safety issues................................................................................................. 6
2.1.1.
Toxicological risk assessment ........................................................................................ 6
2.1.2.
Nutritional risk assessment
2.2.
Molecular characterisation issues ............................................................................... 8
2.3.
Environmental safety issues and post-market environmental monitoring8
2.3.1.
Environmental risk assessment .................................................................................... 11
2.3.2.
Post-market environmental monitoring plan .............................................................. 12
2.3.3.
Conclusion ...................................................................................................................... 13
Overall Conclusions and Recommendations............................................................................. 13
Documentation provided to EFSA ............................................................................................ 14
References ................................................................................................................................. 14

The EFSA Journal (2009) 1152, 3-18

Safeguard clause invoked by Austria on maize MON863 according to Directive
2001/18/EC

BACKGROUND
On 16 July 2008, Austria notified to the European Commission a national safeguard clause on
genetically modified (GM) maize MON863 under Article 23 of Directive 2001/18/EC. The
notification was accompanied by the scientific document entitled “Scientific arguments for an
import ban of genetically modified maize MON863 (Zea mays L., MON863) of Monsanto
notification C/DE/02/9”.
On 3 September 2008, the European Food Safety Authority (EFSA) has received a request
from the European Commission to provide a scientific opinion from its Scientific Panel on
Genetically Modified Organisms (EFSA GMO Panel) on the statement and documents
submitted by Austria in the context of its invoked safeguard clause.
TERMS OF REFERENCE AS PROVIDED BY THE EUROPEAN COMMISSION
EFSA was requested, under Article 29(1) and in accordance with Articles 22(2) and 22(5)(c)
of Regulation (EC) No 178/2002, to provide a scientific opinion as to “whether, in
accordance with Article 23 of Directive 2001/18/EC, the statement and documents submitted
by the Austrian authorities comprise new information affecting the environmental risk
assessment, such that detailed grounds exist to consider that the above authorised GMO, for
the uses laid down in the corresponding consent, constitute a risk to human health, animal
health or the environment”.
ACKNOWLEDGEMENTS
The European Food Safety Authority wishes to thank the members of the Working Groups on
Molecular Characterisation, Food/Feed and Environment, as well as the following members
of its staff: Jaime Aguilera, Yann Devos, Yi Liu and Sylvie Mestdagh for the preparation of
this opinion.

The EFSA Journal (2009) 1152, 4-18

Safeguard clause invoked by Austria on maize MON863 according to Directive
2001/18/EC

ASSESSMENT
1.

Introduction

Directive 2001/18/EC provides the possibility for Member States to invoke safeguards on
specific Genetically Modified Organisms (OGM) in the case where new or additional
information, made available since the date of the consent, would affect the risk assessment of
an authorised GMO. Provisions foreseen by Austria seek to provisionally prohibit the import
of maize lines MON863 into the Austrian territory.
The EFSA GMO Panel examined the set of supporting documents submitted by Austria. In
this respect, the EFSA GMO Panel assessed whether the submitted documents comprise new
scientific knowledge information that would change the outcome of previously performed risk
assessment, and if detailed grounds exist to consider that the authorised maize MON863, for
its intended uses, constitutes a risk to human and animal health or the environment.
The EFSA GMO Panel looked for evidence for GMO-specific risks – including long-term
effects (e.g., BEETLE report, 2009) – taking into consideration the EFSA GMO Panel
guidance for the risk assessment of genetically modified plants and derived food and feed
(EFSA, 2006a) as well as any related risk assessments carried out in the past. In addition, the
EFSA GMO Panel considered the relevance of raised concerns in the light of the most recent
scientific data and relevant peer-reviewed publications.
2.

Assessment of documents provided by Austria

A set of supporting documents, accompanying the mandate of the European Commission (see
Terms of Reference as provided by the European Commission), was forwarded to EFSA on
3 September 2008.
Austria provided the following set of documents in support of its safeguard clause:
-

Verbot des Inverkehrbringens von gentechnisch verändertem Mais der Linie
MON863;

-

Scientific arguments for an import ban of maize MON863.

Based on the supporting documents, several issues were identified and therefore considered
by the EFSA GMO Panel in the following areas: (1) the toxicological and nutritional risk
assessment, (2) the safety assessment of the antibiotic resistance marker (ARM) gene nptII,
and (3) the environmental risk assessment and post-market environmental monitoring plan
related to the accidental spillage of maize MON863.
In addition, the EFSA GMO Panel notes that it only gives its opinion on the scientific quality
of the post-market environmental monitoring plan proposed by the applicant, whilst the final
endorsement thereof is done by risk managers.
During its assessment, the EFSA GMO Panel identified issues raised by Austria that would
require further clarifications. To present and clarify the provided set of documents, an
informal meeting between the Austrian delegation, several experts of the EFSA GMO Panel

The EFSA Journal (2009) 1152, 5-18

Safeguard clause invoked by Austria on maize MON863 according to Directive
2001/18/EC

and EFSA staff was held on 23 April 2009. A representative of the European Commission
attended the meeting as observer.
2.1.

Food and feed safety issues

The Austrian Competent Authority has provided EFSA with a document entitled “Scientific
Arguments for an Import Ban of Genetically Modified Maize MON 863 (Zea mays L., line
MON 863) of Monsanto (Notification C/DE/02/9)”. This document focuses on a number of
details of toxicological and nutritional studies with maize MON863, which are cited by an
article by Hammond et al. (2006) describing the outcomes of the 90-day rat oral toxicity study
with maize MON863. The study by Hammond et al. (2006) refers to the same study for
which another technical report was previously provided to EFSA as part of the dossier that
was considered by the EFSA GMO Panel when formulating its opinion. In addition, various
other documents have been published by EFSA in response to issues previously raised on the
same 90-days study being part of the dossier (EFSA, 2004a; EFSA, 2004b; EFSA, 2007a;
EFSA, 2007b). None of the studies quoted by Austria provide new direct evidence of risks to
human and animal health associated with food and feed use of MON863, or its transgenic
components, which would have evolved after the publication of EFSA’s opinion on maize
MON863 in 2004. In addition, the EFSA GMO Panel notes that 90-day study is not strictly
required in the internationally harmonized approach of comparative safety assessment of a
GMO versus its control. If the outcomes of the comparison of extensively analyzed
compositional and other parameters indicate equivalence of a GMO to conventional food and
feed, this would not trigger the performance of a 90-days study.
2.1.1.

Toxicological risk assessment

The Austrian Competent Authority highlighted a number of details of the toxicological and
nutritional studies cited by Hammond et al. (2006) as what they consider as deficiencies in
experimental design and interpretation, which, as they assert, would impact on the
interpretability of the outcomes of these studies. With regard to toxicity, the Austrian
comments focus on the 90-days feeding study with diets containing kernels of MON863.
They highlight various perceived deficiencies in the original dossier report on the 90-days
study.
As the Austrian Competent Authority correctly notes, a report on the same 90-days oral rat
feeding study as described by Hammond et al. (2006) has been provided with the dossier on
MON863, albeit with more extensive coverage of experimental details.
With regard to the 90-days rat feeding study, the Austrian Competent Authority has made
detailed and extensive comments regarding the experimental design (no updated protocol,
inclusion of reference groups), diet formulation (Cry3Bb denaturation; contaminant analysis),
endpoints measured (not all organs/tissues checked for histopathology; various single
differences in performance and clinical chemistry). The same data of this study have already
been assessed in detail by the EFSA GMO Panel, including the various differences observed
(EFSA, 2004a; EFSA, 2004b; EFSA, 2007a; EFSA, 2007b)
Various general comments can be made, though, to the conclusions and assertions brought
forward in the Austrian document. The Austrian Competent Authority, for example, appears
to comment on the statistical analysis as performed by the applicant, including the asserted
disappearance of differences through an increase of the total number of animals used for the
The EFSA Journal (2009) 1152, 6-18

Safeguard clause invoked by Austria on maize MON863 according to Directive
2001/18/EC

experiment, most of which comprise animals in reference groups fed diets containing
commercial maize. The EFSA GMO Panel, though, has considered the direct comparison
between the groups fed GM maize MON863 and the respective control groups. Any
difference thus identified can then be further compared with the background ranges provided
by the animals fed the reference diets. For example, the difference in reticulocytes that the
Austrian authorities point at, was also noted by the EFSA GMO Panel, as summarized in
section 4.2 of its opinion of 2004 (EFSA, 2004a). This approach of direct comparison of a
GMO with its appropriate comparator is in line with the internationally harmonized
comparative safety assessment principles for GM foods as laid down in Codex alimentarius
guidelines (to which the Austrian authorities have also subscribed) and further elaborated in
EFSA guidance document (EFSA, 2006a). Concerning the comment with regard to the
percentage (60-80%) of the reference group in overall sample size, it should be noted that it is
not the percentage of the reference groups within the sample size that is a problem in itself,
but the replication of the GM and comparator. If this replication is too small because of the
restrictions placed by having 60-80% reference varieties, then this could be a valid criticism.
However, if the replication is sufficient, then there is no reason why reference groups should
not contribute 60-80% of the sample size. In addition, the guidelines that were recently
drafted by the Commission and discussed with EU Member States’ representatives at the
Standing Committee for the Food Chain and Animal Health recommend that compositional
field trials be done with at least 60% of the plots being allocated to commercial varieties
(reference groups).
Austria also refers to OECD guideline 408 (OECD, 1998) with regard to the number of doses
and other details, which would not have been strictly followed by the applicant. In the EFSA
GMO Panel’s opinion, it has to be taken into account, though, that OECD guideline 408 has
been developed for the testing of pure chemicals and that adjustments may be required for the
testing of whole foods. This issue has also been extensively highlighted in the EFSA GMO
Panel’s report on animal feeding trials (EFSA, 2008).
In addition, Austria notes that the Cry3Bb protein should have remained intact in the test diet
used in the 90-days rat feeding study, and therefore concludes that more details on the feed
manufacturing conditions and the presence and nature of the transgenic elements in the rat
diets should have been provided. Given the commonly low expression levels of transgenic
proteins in GM crops, the EFSA GMO Panel notes, though, that for testing the safety of
transgenic proteins, other models than whole-product feeding studies for testing purified
components would be recommendable, such as repeated-dose oral rodent studies with the
purified transgenic protein (see EFSA guidance document, EFSA, 2006a). Based on the data
provided in the dossier, Cry3Bb has been assessed by the EFSA GMO Panel for its safety.
The EFSA GMO Panel concludes that the data provided by the Austrian Competent Authority
do not indicate that there would be an additional need for further testing the safety of Cry3Bb.
The EFSA GMO Panel concurs with the Austrian notion that nutritional feeding studies in
food-producing animals cannot be considered toxicity studies. Again, the Austrian comments
pertain to conclusions made by other authors than the EFSA GMO Panel in its opinion on
MON863. The scientific opinions of the EFSA GMO Panel, including the one on MON863,
make a distinction between toxicity, allergenicity, nutrition, and other issues that may be of
relevance to food and feed safety.
In conclusion, no new data have been presented by the Austrian authorities that could be
considered evidence of potential toxic effects on maize MON863 and its transgenic
components on humans and animals. In the absence of such evidence, the EFSA GMO Panel
The EFSA Journal (2009) 1152, 7-18

Safeguard clause invoked by Austria on maize MON863 according to Directive
2001/18/EC

cannot follow the Austrian recommendation for requiring additional toxicity tests for subchronic, chronic, developmental, and reproductive toxicity of maize MON863.
2.1.2.

Nutritional risk assessment

The Austrian Competent Authority refers to various nutritional studies that have appeared in
scientific journals, in which the performance of various food-producing animals fed
MON863, including poultry, beef and dairy cattle, and swine, have been measured. The
article on the poultry feeding study with MON863 (Taylor et al., 2003) is based on the same
feeding trial of which a report has been provided with the dossier assessed by EFSA. In
addition, the quoted article on the dairy cattle study (Grant et al., 2003) has also been
considered in the EFSA opinion. The other articles describing studies on beef cattle and swine
were published after the publication of the opinion.
The Austrian comments pertain to perceived shortcomings of the abovementioned nutritional
studies, such as to the composition of the diets (e.g., origin of the maize; certain
micronutrients not being measured; levels of transgenic components in final product),
experimental design (e.g., inclusion of reference groups; choice of animals; background
variability), and statistical analysis (e.g. limited information based on p-values alone). None
of these comments indicate that the new data cited by Austria demonstrate a potentially
relevant adverse effect of maize MON863 on animal nutrition.
The EFSA GMO Panel concurs with the Austrian general comment that the first comparison
to be made is between the GMO and its appropriate comparator, after which further
comparison with the background range of reference values may be made, if applicable. The
Austrian Competent Authority assert that whilst the transgenic identity of test materials has
been verified, the levels of transgenic proteins and DNA in the final feed product, rather than
in raw products, should be established. In the EFSA GMO Panel’s opinion, these transgenic
components do not contribute to nutrition given their very low abundance.
Moreover, the Austrian comments and the cited studies do not provide evidence of potential
impacts of maize MON863 on nutrition that would lead the EFSA GMO Panel to deviate
from its previous opinion (EFSA, 2004a). It should be noted that this kind of studies is not
strictly required in the absence of indications of altered nutritional properties of a GMO based
on compositional analysis and other data (e.g. type of modification) according to EFSA
guidance. In the case of maize MON863, these data can therefore be regarded as
supplementary data.
2.2.

Molecular characterisation issues

2.2.1.

Safety assessment of the ARM gene aph(3’)-IIa

Therapeutic relevance of kanamycin and neomycin in human and veterinary medicine
The aph(3’)-IIa gene confers resistance to neomycin and kanamycin but not to other
aminoglycosides of clinical use. The aph(3’)-IIa gene confers slightly reduced susceptibility
to amikacin for E. coli. However, amikacin is a poor substrate for the APH(3’)-IIa enzyme
due to its hydroxyaminobutyryl side chain.
Antimicrobials are grouped into classes on the basis of chemical structure and mode of action.
Most antimicrobials used for the treatment of animals belong to classes that are also used in
The EFSA Journal (2009) 1152, 8-18

Safeguard clause invoked by Austria on maize MON863 according to Directive
2001/18/EC

human medicine. A list of antimicrobial classes was compiled by WHO in 2007 (the WHO
Expert Group on Critically Important Antimicrobials for Human Health) (WHO, 2007),
giving examples of substances used for the treatment of infections in humans. Antimicrobials
listed as ‘Critically Important’ in the WHO list are characterised as both: 1. ‘sole therapy or
one of few alternatives to treat serious human disease’, and 2. ‘antimicrobials used to treat
diseases caused by organisms that may be transmitted via non-human sources or diseases
caused by organisms that may acquire resistance genes from non-human sources’. With
respect to this classification, kanamycin and neomycin were downscaled from “critically
important” to “highly important” compared to the WHO report of 2005 (WHO, 2005),
because they no longer were considered to comply with criterion 1. Antimicrobials classified
as ‘Highly Important’ meet either criterion 1 or criterion 2. The World Animal Health
Organisation (OIE) has similarly developed and adopted a list ranking the importance of
different antimicrobials for animal health (OIE, 2007). Aminoglycosides, as a group, is a class
of antibiotics critically important for veterinary medicine and animal production (OIE, 2007).
Kanamycin is rarely used systemically today due to its severe side effects although this
antibiotic remains a recognised second line choice in conditions of infections with multiple
drug resistant (MDR) Mycobacterium tuberculosis (MTB). Aminoglycoside resistance in M.
tuberculosis results from a mutation causing alterations in the antibiotic target molecule
within the mycobacterial cell; thus chromosomal resistance, and not the transfer of antibiotic
resistance genes [such as aph(3’)-IIa], is the only identified mechanism resulting in resistance
to kanamycin (Goldstein et al., 2005 and references therein). Neomycin is poorly absorbed
from the gastrointestinal tract, and is nephrotoxic and ototoxic. The use of neomycin in
human medicine is limited to topical applications and gut irrigation/encephalopathy. By
killing bacteria in the intestinal tract, it keeps ammonia levels low and prevents hepatic
encephalopathy, especially prior to gastrointestinal surgery. In veterinary medicine
kanamycin and neomycin could be used for therapies of neonatal diarrhoea in piglets and
treatment of multi-resistant enteric gram-negative infections.
Transfer of ARM genes from GM plants to bacteria
Transfer of antibiotic resistance marker genes from GM plants to bacteria has not been
detected either under natural or laboratory conditions in the absence of pre-existing sequence
identity in the recipient organism. A number of studies have been published in which the
possible occurrence of bacterial transformants carrying GM plant-derived antibiotic resistance
marker genes in fields planted with GM plants were screened (Paget et al., 1998; Gebhard and
Smalla, 1999; Badosa et al., 2004; Demanèche et al., 2008, Kim et al., 2008). Nonetheless, in
none of these studies has transfer of antibiotic resistance marker genes from GM plant
material to bacteria been demonstrated. Nor could such transfer be detected from the existing
background.
In the cascade of events leading to clinical importance, the ARM genes present in GM plants
would need to be transferred to, stabilised and expressed in a bacterial cell. Absence of
sequence identity is known to be the major factor limiting the stable integration, by
homologous recombination, of DNA from a GM plant to a bacterial cell. Other factors
limiting the potential impact of the aph(3’)-IIa marker gene used in maize MON863 include
the lack of stability of the plant DNA in different environments and the limited competence of
many bacterial cells.

The EFSA Journal (2009) 1152, 9-18

Safeguard clause invoked by Austria on maize MON863 according to Directive
2001/18/EC

ARM genes transfer from plants to bacteria has never been observed. There are limitations
related to sampling and detection methods, as well as challenges in estimating exposure levels
and in the inability to assign transferable resistance genes to a defined source.
Notwithstanding these uncertainties, and taking into account all the peer-reviewed data, the
probability of the transfer of antibiotic resistance genes from GM plants to bacteria must be
considered as zero or below the limit of detection. It has to be stressed that the dissemination
of antibiotic resistance genes between bacteria is not comparable with the potential transfer of
these genes from plants to bacteria. Transfer of ARM genes from plants to bacteria would
occur, if at all, with a very low frequency compared to that between bacteria.
Resistance in natural environments
Concerning the prevalence of the aph(3’)-IIa gene and phenotypic kanamycin/neomycin
resistance, two basically different sets of data are available.
In different countries the resistance is monitored in indicator bacteria and pathogens. The
available data indicate that a pool of aph(3’)-IIa-carrying bacteria occur in and outside
hospital-associated environments. There are environmental fluctuations in the prevalence of
the aph(3’)-IIa gene and of the kanamycin/neomycin phenotypic resistance. During the
bilateral technical meeting between the GMO Panel and the Austrian delegation a mean
frequency of 0.74 % kanamycin resistant Salmonella has been reported in the Austrian
surveillance programme of human isolates from 1999-2008. A similar frequency has been
reported for neomycin resistant Campylobacter isolates from poultry from 2004-2007. This
should be considered as high frequency.
An additional and important source of information on the frequency and distribution of genes
conferring resistance to aminoglycoside antibiotics has been generated from metagenomic
analyses. These are based on the molecular detection of resistance determinants, and allow
the analysis of an extended bacterial population compared to conventional culturing methods.
The expanding metagenomic studies have revealed a high density of antibiotic resistance
genes in the environment (D’Costa et al., 2007). The resistance mechanisms identified include
inactivation of aminoglycoside antibiotics by phosphorylation and acetylation (Riesenfeld et
al., 2004). The results indicate that soil bacteria are a reservoir of antibiotic resistance genes
towards aminoglycosides with greater genetic diversity than previously accounted for. Even a
remote Alaskan soil, with no known exposure to antibiotics, harbours a great variety of
resistance determinants (Allen et al., 2009) and even before the clinical use of antibiotics,
antibiotic resistant bacteria were isolated (Wright, 2007). The ubiquitous distribution of the
wide variety of antibiotic resistance genes can be explained by the fact that many of these
genes are not just weapons against bacterial competitors but have other primary signalling
functions (e.g. detoxification of metabolic intermediates, virulence and signal trafficking)
(Martinez, 2008).
Selective antibiotic pressure in field environments
The EFSA GMO Panel agrees that selective antibiotic pressure can be present in several
environments. This selective pressure is the key factor in the selection of resistance from the
environmental reservoir and in the dissemination of antibiotic resistance between bacteria.
However, this does not increase the likelihood of transfer of ARM genes from GM plants to
bacteria. In the unlikely event that such a transfer to a bacterial cell occurs, it would not add

The EFSA Journal (2009) 1152, 10-18

Safeguard clause invoked by Austria on maize MON863 according to Directive
2001/18/EC

to the existing pool of naturally occurring resistance genotypes present in the microbial
resistome.
2.2.2. Conclusion
Kanamycin and neomycin are categorised by the WHO Expert Group on Critically Important
Antimicrobials for Human Health as ‘Highly Important’ antimicrobials. Kanamycin is used as
a second-line drug for the treatment of infections with multiple drug-resistant tuberculosis
(MTB). The increasing occurrence worldwide of “extensively drug-resistant” isolates of MTB
with resistance to second-line antibiotics such as kanamycin is a cause for global concern.
The aph(3’)-IIa gene has not been implicated in such resistance.
The transfer of ARM genes from GM plants to bacteria has never been shown to occur under
laboratory or natural conditions in the absence of sequence identity. If transfer of ARM genes
from GM plants to bacteria occurs at all, its frequency is below the limit of detection. The
process is therefore considered unlikely to impact on the occurrence of antibiotic resistance in
humans, animals and the environment.
The genetic determinants conferring resistance to kanamycin and neomycin are detected in
the environmental resistome and in all environments analysed by metagenomic analyses.
They are also widespread among bacteria in different environments. Data provided from
Austria indicate the spread of this resistance in human food-borne pathogens at a frequency of
about 1%. Taking into account the theoretical transfer frequencies of ARM genes from GM
plants to bacteria, in the unlikely event of the transfer of the aph(3’)-IIa gene from maize
MON863 to a bacterium, its contribution to the existing pool of kanamycin resistance in
bacteria would be negligible.
For further details concerning the safety assessment of the ARM gene aph(3’)-IIa, the EFSA
GMO Panel refers to the EFSA statement (EFSA, 2009).
2.3.

Environmental safety issues and post-market environmental monitoring

2.3.1.

Environmental risk assessment

The intended uses of maize MON863 specifically exclude cultivation, so the environmental
exposure is mainly limited to exposure through manure and faeces from the gastrointestinal
tracts mainly of animals fed maize MON863, as well as to accidental release into the
environment of MON863 grains during transportation and processing and subsequently to
potential occurrence of sporadic feral plants.
Maize is highly domesticated and generally unable to survive in the environment without
cultivation. Maize plants are not winter hardy in most regions of Europe: they have lost their
ability to release seeds from the cob and do not occur outside cultivated land or disturbed
habitats in agricultural landscapes of Europe, despite cultivation for many years. In addition,
there are no cross-compatible wild relatives in Europe, and gene flow via pollen is largely
restricted to neighbouring maize crops.
Maize MON863 has been developed to provide protection against certain coleopteran pests
such as corn rootworms (Diabrotica spp.) by the introduction of a variant Bacillus
thuringiensis cry3Bb1 gene. The insect resistance trait can only be regarded as providing a
selective advantage for the GM maize in cultivation under corn rootworm infestation
The EFSA Journal (2009) 1152, 11-18

Safeguard clause invoked by Austria on maize MON863 according to Directive
2001/18/EC

conditions. However, survival of maize outside of cultivation in Europe is mainly limited by a
combination of low competitiveness, absence of a dormancy phase, susceptibility to diseases
and to cold climate conditions. Since these general characteristics of maize MON863 are
unchanged, the inserted insect resistance trait is not likely to provide a selective advantage
outside of cultivation in Europe. Therefore, it is considered very unlikely that volunteers of
this GM maize, or its progeny, will differ from conventional maize varieties in their ability to
survive until subsequent seasons, or to establish feral populations under European
environmental conditions. Since studies in Europe and elsewhere with maize MON863 have
shown no altered survival, multiplication or dissemination characteristics except in the
presence of the specific target organisms, the EFSA GMO Panel is of the opinion that the
likelihood of unintended environmental effects as a consequence of spread of genes from this
maize due to accidental spillage will not differ from that of conventional maize varieties.
Considering the intended uses of maize MON863, the environmental risk assessment is
concerned with indirect exposure through manure and faeces from the gastrointestinal tracts
mainly of animals fed maize MON863. In its previous environmental risk assessment of
maize MON863 (EFSA, 2004a), the EFSA GMO Panel also considered the possibility that
gene products, particularly Cry proteins might enter the environment either from the intestinal
tracts of animals or through horizontal gene flow to bacteria. Data supplied by the applicant
and other data published in the scientific literature suggested that most proteins would be
degraded by enzymatic activity in the intestinal tract (Lutz et al., 2005; Wiedemann et al.,
2006), so that a small amount of Cry protein would remain intact to pass out in faeces.
Subsequently, there would be further degradation of proteins in the manure due to microbial
processes. Even though it has been observed that Cry proteins can bind to certain soil
particles (e.g., humic acids, clays) resulting in protection from degradation, a number of
studies revealed that there is no accumulation of Cry proteins from GM crops in soil (Herman
et al., 2001, 2002; Head et al., 2002; Baumgarte and Tebbe, 2005; Hopkins and Gregorich,
2005; Ahmad et al., 2005; Dubelman et al., 2005; Icoz and Stotzky, 2007; Krogh and
Griffiths, 2007; Lawhorn et al., 2009).
Having considered the different routes of exposure to the environment, the EFSA GMO Panel
reiterates its previous opinion that the likelihood of unintended environmental effects as a
consequence of spread of genes from this maize will not differ from that of conventional
maize varieties (EFSA, 2004a). The EFSA GMO Panel concludes that the Austrian
submission provided no new scientific data or information in support of an adverse effect of
maize MON863 on the environment and that would justify a national safeguard measure
concerning this product.
2.3.2.

Post-market environmental monitoring plan

Austria questioned the adequacy, relevance and completeness of the post-market
environmental monitoring (PMEM) plan provided by the applicant for maize MON863. The
EFSA GMO Panel notes that it gives its opinion on the scientific quality of the PMEM plans
proposed by applicants. The definitive and final endorsement of post-market environmental
monitoring is done by risk managers. In this context, the EFSA GMO Panel refers to the
section 5.2 of its scientific opinion on post-market environmental monitoring of GM plants
(EFSA, 2006b) stating that ‘Details of the specific plans and methods of monitoring in each
country should not be included in the original application. The GMO Panel advises that the
application should describe the general approaches and methods that the applicant would
apply in different commercialisation sites, including the type of dialogue that would be
The EFSA Journal (2009) 1152, 12-18

Safeguard clause invoked by Austria on maize MON863 according to Directive
2001/18/EC

established with risk managers in each Member State. The implementation of general
surveillance data collection at a regional and national scale will be dependent on the local
circumstances prevailing at the time the consent is given. Thus detailed local arrangements
will be developed by the applicant after the application has been accepted and will depend on
where the crop will be grown, the scale of commercialisation, the nature of the cultivation
systems and a range of other factors. Applicants are encouraged to establish contacts with
national competent authorities at an early stage in the commercialisation planning.’
In its initial scientific opinion for the placing on the market of insect protected GM maize
MON863 and MON863xMON810 (EFSA, 2004a), the EFSA GMO Panel concluded that the
scope of the monitoring plan provided by the applicant was in line with the intended uses for
the GMO since the environmental risk assessment did not cover cultivation. In addition, the
EFSA GMO Panel advised that appropriate management systems should be in place to
prevent seeds of the GM maize entering cultivation, as the latter requires specific approval
under Directive 2001/18/EC.
The association of European traders, importing cereals, oilseeds and feedstuffs (Coceral) as
well as the association of European port silos (Unistock) have recently joined with the
European Association of Bioindustries (EuropaBio) in developing monitoring systems for
GM maize grains imported through the main ports of entry and processing facilities in Europe
(e.g., Spain, Portugal, Italy, the Netherlands). These monitoring systems are based on Hazard
Analysis and Critical Control Points (HACCP) principles. Therefore, it is anticipated that risk
managers will opt for post-market environmental monitoring of imported maize MON863 in
accordance with these arrangements.
Subject to post-market environmental monitoring activities under the coordinating system
established by EuropaBio, the EFSA GMO Panel maintains its opinion that the scope of the
post-market environmental monitoring plan provided by the applicant complies with (1) the
intended uses of maize MON863, which exclude cultivation, (2) the requirements of the
EFSA GMO Panel guidance on GM plants (EFSA, 2006a), and (3) the EFSA GMO Panel
scientific opinion on post-market environmental monitoring (EFSA, 2006a,b).
2.3.3.

Conclusion

The EFSA GMO Panel confirms its opinion that the likelihood of unintended environmental
effects as a consequence of spread of (trans)genes from maize MON863 will not differ from
that of conventional maize varieties in the context of its intended uses. The EFSA GMO Panel
agrees with the monitoring plan submitted by the applicant, especially now that
comprehensive arrangements have been made by applicants and operators for monitoring at
major points of import and processing in European Union. However, the EFSA GMO Panel
continues to recommend that appropriate management systems should be in place to minimise
accidental loss and spillage of transgenic maize grains during transportation, storage and
handling in the environment, and processing into derived products.
OVERALL CONCLUSIONS AND RECOMMENDATIONS
The EFSA GMO Panel has investigated the claims and documents both submitted in support
of the Austrian safeguard clause and presented at the informal meeting between the Austrian
delegation, several experts of the EFSA GMO Panel and EFSA staff on 23 April 2009. In
The EFSA Journal (2009) 1152, 13-18

Safeguard clause invoked by Austria on maize MON863 according to Directive
2001/18/EC

these documents, the EFSA GMO Panel did not identify any new data subject to scientific
scrutiny or scientific information that would invalidate the previous risk assessment of maize
MON863. In addition, the Austrian submission did not supply scientific evidence, that the
environment or ecology of Austria was different from other regions of the EU, sufficient to
merit separate risk assessments from those conducted for other regions in the EU.
Having considered the overall information package submitted by Austria as well as relevant
scientific literature, the EFSA GMO Panel is of the opinion that there is no specific scientific
evidence, in terms of risk to human and animal health and the environment, that would justify
the invocation of a safeguard clause under Article 23 of Directive 2001/18/EC for the import
of maize MON863 for its intended uses in Austria. In conclusion, the EFSA GMO Panel finds
that the scientific evidence currently available does not sustain the arguments provided by
Austria, and therefore the EFSA GMO Panel reiterates its previous scientific opinions on
maize MON863.
DOCUMENTATION PROVIDED TO EFSA
1. Letter, dated 3 September 2008, with supporting documents from Jos Delbeke, Acting
Director-General Environment EC, to Catherine Geslain-Lanéelle, Executive Director
EFSA (ref ENV/B3/YK/lh ARES(2008) 24354) requesting for a scientific opinion on the
safeguard notification submitted by Austria under Article 23 of Directive 2001/18/EC for
maize lines MON863 and comprising the following supporting documents:
a. Verbot des Inverkehrbringens von gentechnisch verändertem Mais der Linie
MON863;
b. Scientific arguments for an import ban of maize MON863.
2. Letter, dated 15 October 2008, from Catherine Geslain-Lanéelle, Executive Director
EFSA, to Jos Delbeke, Acting Director-General Environment EC, acknowledging the
receipt of the mandate accompanied with the supporting documents.
REFERENCES
Ahmad, A., Wilde G.,E., Zhu K., Y., 2005. Detectability of Coleopteran-specific Cry 3Bb1
protein in soil and its effect on nontarget surface and below-ground arthropods.
Environmental Entomology, 34, 385-394.
Allen, J.K., Moe, L.A., Rodbummer, J., Gaarder, A. and Handelsman, J., 2009. Functional
metagenomics reveals diverse β-lactamases in a remote Alaskan soil. International
Society for Microbial Ecology, 3, 243-251.
Badosa, E., Moreno, C. and Montesinos, E., 2004. Lack of detection of ampicillin resistance
gene transfer from Bt176 transgenic corn to culturable bacteria under field conditions.
FEMS Microbioly Ecology, 48, 169-178.
Baumgarte, S., Tebbe, C.C., 2005. Field studies on the environmental fate of the Cry1AB Bt
toxin produced by transgenic maize (MON810) and its effect on bacterial communities in
the maize rhizosphere. Molecular Ecology, 14, 2539-2551.
BEETLE report, 2009. Long-term effects of genetically modified (GM) crops on health and
the environment (including biodiversity): prioritization of potential risks and delimitation
The EFSA Journal (2009) 1152, 14-18

Safeguard clause invoked by Austria on maize MON863 according to Directive
2001/18/EC

of uncertainties. German Federal Office of Consumer Protection and Food Safety, BLaUUmweltstudien
and
Genius
GmbH,
http://ec.europa.eu/environment/biotechnology/pdf/beetle_report.pdf
D’Costa, V.M., Griffiths, E. and Wright, G.D., 2007. Expanding the soil antibiotic resistome:
exploring environmental diversity. Current Opinion in Microbiology, 10, 481-489.
Demanèche, S., Sanguin, H., Poté, J., Navarro, E., Bernillon, D., Mavingui, P., Wildi, W.,
Vogel, T.M. and Simonet, P., 2008. Antibiotic-resistant soil bacteria in transgenic plant
fields. Proceedings of the National Academy of Sciences USA, 105, 3957-3962.
Dubelman, S., Ayden, B., Bader, B., Brown, C., Jiang, C., Vlachos, D., 2005. Cry1Ab protein
does not persist in soil after 3 years of sustained Bt corn use. Environmental Entomology,
34, 915-921.
EC, 2001. Directive 2001/18/EC of the European Parliament and of the Council of 12 March
2001 on the deliberate release into the environment of genetically modified organisms and
repealing Council Directive 90/220/EEC. Official Journal of the European Communities,
L106, 1-39,
http://europa.eu.int/eur-lex/pri/en/oj/dat/2001/l_106/l_10620010417en00010038.pdf
EFSA, 2004a. Opinion of the Scientific Panel on Genetically Modified Organisms on a
request from the Commission related to the Notification (Reference C/DE/02/9) for the
placing on the market of insect protected genetically modified maize MON863 and
MON863xMON810, for import and processing, under Part C of Directive 2001/18/EC
from Monsanto. The EFSA Journal 49, 1-25.
http://www.efsa.europa.eu/EFSA/efsa_locale-1178620753812_1178620772339.htm
EFSA, 2004b. Statement on an Evaluation of the 13-week Rat Feeding Study on MON 863
Maize, submitted by the German Authorities to the European Commission by the
Scientific Panel on Genetically Modified Organisms (GMO). European Food Safety
Authority, Parma.
http://www.efsa.europa.eu/EFSA/efsa_locale-1178620753812_1178620775579.htm
EFSA, 2006a. Guidance document of the Scientific Panel on Genetically Modified Organisms
for the risk assessment of genetically modified plants and derived food and feed. The
EFSA Journal, 99, 1-100, [including draft document updated in 2008.
http://www.efsa.europa.eu/EFSA/efsa_locale-1178620753812_1211902010430.htm],
http://www.efsa.europa.eu/EFSA/efsa_locale-1178620753812_1178620775747.htm
EFSA, 2006b. Opinion of the Scientific Panel on Genetically Modified Organisms on the Post
Market Environmental Monitoring (PMEM) of genetically modified plants. The EFSA
Journal, 319, 1-27.
http://www.efsa.europa.eu/EFSA/efsa_locale-1178620753812_1178620769727.htm
EFSA, 2007a. Statement on the Analysis of Data from a 90-Day Rat Feeding Study with
MON 863 Maize by the Scientific Panel on Genetically Modified Organisms (GMO).
European Food Safety Authority, Parma.
http://www.efsa.europa.eu/EFSA/efsa_locale-1178620753812_1178621169104.htm

The EFSA Journal (2009) 1152, 15-18

Safeguard clause invoked by Austria on maize MON863 according to Directive
2001/18/EC

EFSA, 2007b. EFSA Review of Statistical Analyses conducted for the Assessment of the
MON 863 90-Day Rat Feeding Study. European Food Safety Authority, Parma.
http://www.efsa.europa.eu/EFSA/efsa_locale-1178620753812_1178621342614.htm
EFSA, 2008. Safety and nutritional assessment of GM plants and derived food and feed: The
role of animal feeding trails. Reports of the EFSA GMO Panel working group on animal
feeding trials. Food and Chemical Toxicology, 46, S2-S70.
EFSA, 2009. Statement of EFSA on the consolidated presentation of the joint Scientific
Opinion of the GMO and BIOHAZ Panels on the “Use of Antibiotic Resistance Genes as
Marker Genes in Genetically Modified Plants” and the Scientific Opinion of the GMO
Panel on “Consequences of the Opinion on the Use of Antibiotic Resistance Genes as
Marker Genes in Genetically Modified Plants on Previous EFSA Assessments of
Individual
GM
Plants”.
The
EFSA
Journal,
1108:
1-8,
http://www.efsa.europa.eu/EFSA/ScientificPanels/GMO/efsa_locale1178620753812_Statements456.htm
Gebhard, F. and Smalla, K., 1999. Monitoring field releases of genetically modified sugar
beets for persistence of transgenic plant DNA and horizontal gene transfer. FEMS
Microbiology Ecology, 28, 261-272.
Goldstein, D.A., Tinland, B., Gilbertson, L.A., Staub, J.M., Bannon, G.A., Goodman, R.E.,
McCoy, R.L. and Silvanovich, A., 2005. Human safety and genetically modified plants: a
review of antibiotic resistance markers and future transformation selection technologies.
Journal of Applied Microbiology, 99, 7-23.
Grant, R.J., Fanning, K.C., Kleinschmit, D., Stanisiewski, E.P., Hartnell, G.F., 2003.
Influence of glyphosate-tolerant (event nk603) and corn rootworm protected (event
MON863) corn silage and grain on feed consumption and milk production in Holstein
cattle. Journal of Dairy Science, 86, 1707-15.
Hammond, B., Lemen, J., Dudek, R., Ward, D., Jiang, C., Nemeth, M., Burns, J., 2006.
Results of a 90-day safety assurance study with rats fed grain from corn rootwormprotected corn. Food and Chemical Toxicology, 44, 147-160.
Head, G., Surber, J.B., Watson, J.A., Martin, J.W., Duan, J.J., 2002. No detection of Cry1Ac
protein in soil after multiple years of transgenic Bt cotton (Bollguard) use. Environmental
Entomology, 31, 30-36.
Herman, R.A., S.L. Evans, D.M. Shanahan, C.A. Mihaliak, G.A. Bormett, D.L. Yound, and J.
Buehrer, 2001. Rapid degradation of Cry1F delta-endotoxin in soil. Environmental
Entomology, 30, 642-644.
Herman, R.A., Wolt, J.D., Halliday, W.R., 2002. Rapid degradation of the Cry1F insecticidal
crystal protein in soil. Journal of Agricultural and Food Chemistry, 50, 7076-7078.
Hopkins, D.W., Gregorich, E.G., 2005. Decomposition of residues and loss of the δ-endotoxin
from transgenic (Bt) corn (Zea mays L.) in soil. Canadian Journal of Soil Science, 85, 1926.
Icoz, I., Stotzky, G., 2007. Fate and effects of insect-resistant Bt crops in soil ecosystems. Soil
Biology and Biochemistry, 40, 559-586.
The EFSA Journal (2009) 1152, 16-18

Safeguard clause invoked by Austria on maize MON863 according to Directive
2001/18/EC

Kim, M.C., Ahn, J.H., Shin, H.C., Kim, T., Ryu, T.H., Kim, D.H., Song, H.G., Lee, G.H. and
Ka, J.O., 2008. Molecular analysis of bacterial community structures in paddy soils for
environmental risk assessment with two varieties of genetically modified rice, Iksan 483
and Milyang 204. Journal of Microbioly and Biotechnology, 18, 207-218.
Krogh, H., Griffiths B., 2007. ECOGEN – Soil ecological and economic evaluation of
genetically modified crops. Pedobiologia, 51, 171-173.
Lawhorn, C.N., Neher, D.A., Dively, G.P., 2009. Impact of coleopteran targeting toxin
(Cry3Bb1) of Bt corn on microbially mediated decomposition. Applied Soil Ecology, preprint published online, DOI:10.1016/j.apsoil.2008.12.003.
Lutz, B., Wiedemann, S., Einspanier, R., Mayer, J., Albrecht, C., 2005. Degradation of
Cry1Ab Protein from Genetically Modified Maize in the Bovine Gastrointestinal Tract.
Journal of Agricultural and Food Chemistry, 53, 1453-1456.
Martinez, J.L., 2008. Antibiotics and antibiotic resistance genes in natural environments.
Science, 321, 365-367.
OECD, 1998. OECD Guidelines for the Testing of Chemicals / Section 4: Health Effects, Test
No. 408: Repeated Dose 90-Day Oral Toxicity Study in Rodents. Organization for
Economic Cooperation and Development, Paris.
OIE, 2007. List of Antimicrobials of Veterinary importance. OIE International Committee.
75th general session, May 2007. Resolution no. XXVIII.
Paget, E., Lebrun, M., Freyssinet, G. and Simonet, P., 1998. Fate of recombinant DNA in soil.
European Journal of Soil Biology, 34, 81-88.
Riesenfeld, C.S., Goodman, R.M. and Handelsman, J., 2004. Uncultured soil bacteria are a
reservoir of new antibiotic resistance genes. Environmental Microbiology, 6, 981-989.
Taylor, M.L., Hyun, Y., Hartnell, G.F., Riordan, S.G., Nemeth, M.A., Karunanandaa, K.,
George, B., Astwood, J.D., 2003. Comparison of broiler performance when fed diets
containing grain from YieldGard Rootworm (MON863), YieldGard Plus (MON810 x
MON863), nontransgenic control, or commercial reference corn hybrids. Poultry Science,
82, 1948-1956.
WHO, 2007. Critically important antimicrobials for human medicine: Categorization for the
development of risk management strategies to contain antimicrobial resistance due to nonhuman antimicrobial use. Report of the second WHO expert meeting, Copenhagen, 29-31
May 2007.
WHO, 2005. Critically Important Antibacterial Agents for Human Medicine for Risk
Management Strategies of Non-Human Use. Report of a WHO working group
consultation, Canberra, 15-18 February 2005.
Wiedemann, S., Lutz, B., Kurtz, H., Schwarz, F. J., Albrecht, C., 2006. In situ studies on the
time-dependent degradation of recombinant corn DNA and protein in the bovine rumen.
Journal of Animal Science, 84, 135-144.

The EFSA Journal (2009) 1152, 17-18

Safeguard clause invoked by Austria on maize MON863 according to Directive
2001/18/EC

Wright, J.D., 2007. The antibiotic resistome: the nexus of chemical and genetic diversity.
Nature Reviews Microbiology, 5, 175-186.

The EFSA Journal (2009) 1152, 18-18