Recently, Scotland’s Rural Affairs Secretary announced that its government will use the new Article 26b Directive 2001/18 to ban the cultivation of Genetically Modified (GM) Crops on Scottish territory. However, the grounds invoked to support this decision show that the limitations imposed on the Member States’ new leeway might not have been completely taken into account: ‘Scotland is known around the world for our beautiful natural environment - and banning growing genetically modified crops will protect and further enhance our clean, green status’. Does the obligation to ‘not conflict’ with the EFSA’s environmental risk assessment preclude a national definition of what can be seen as ‘natural’, ‘clean’ or ‘green’? Does Article 26b provide for protection against reputational damages? Furthermore, the political ‘GMO divide’ between Scotland and Westminster highlights the potential challenges of a de-harmonisation in the matter. The opt-out reform intends to ease the decision-making on GMOs and relies on (more) consensus and better cooperation on GMOs within nations. However, it has the potential to accentuate the divergences and to create tensions, both within and between States. The Scottish position on GMOs is a perfect example of how complex the relationship between local authorities with broad devolved competences, central authorities and EU institutions can be. It raises fascinating questions regarding the relevance of EU law in internal debates related to the exercise of devolved competences, the prevention of (inter and intra state) contaminations and the allocation of liabilities when EU and/or International trade law is breached.
Our paper intends first to determine the limits of Scotland’s leeway, in order to shed light on the extent to which environmental related grounds are usable under the new Article 26b. Then, it aims at exploiting Scotland’s experience as a test case revealing the challenges faced by devolved authorities under the new GMO regime.
