b'While this first may look like a national measure only, adirectly or indirectly (e.g. through use of respective varieties regulatory self-mutilation only applicable to certain productsunder the breeders exemption in breeding programmes by other in France, it obviously would have a much wider impact. Whatcompanies) from this technique.about seeds of varieties authorised in another EU Member State,It is also arbitrary and, as a consequence, legally flawed, to consequently listed on the EU Common Catalogue and thus freelyrestrict the consequent de-listing of varieties obtained by such marketable throughout the EU? Would such seed still be mar- breeding methods to only those that show a specific trait, i.e. her-ketable in France? Would French farmers be allowed to use it?bicide tolerance.What about the resulting food and feedstuffs? And what aboutAs there are no biological differences between products such food and feed products originating from third countries? resulting from different forms of (in vitro) mutagenesis, the It is obvious that such national changes may indeed have awider consequences of the draft cannot be complied with, hence much wider impact than on the country alone. There are reper- it risks being unenforceable. This would cause great legal uncer-cussions on EU and international level and on a wide range oftainty for market operators in Europe and worldwide.regulations, policies and international obligations of the entireThe French draft decree would create a distortion of the Union. Hence, the obligation to notify such measures and theEU single market and establish barriers to the EU seed trade. detailed TRIS procedure these are then subject to. A national narrowing of the exemption from the GMO Directive shakes up the entire EU internal market for seeds as well as CUI BONO? THE NATIONAL POLITICAL AGENDAresulting products. It is incomprehensible how Member States ON HERBICIDE TOLERANCE are supposed to defend a common market for seed on the one The decree and the respective orders in practice clearly focushand but have fundamentally different legal interpretations of on (Clearfield) herbicide tolerant oilseed rape varieties and onwhat breeding techniques and resulting products are: a regu-seed-production and cultivation in France; though, as stated ear- lated GMO, an exempted GMO, or no GMO at all. Common rules, lier, the consequences would extend way beyond France. Butmutual recognition and consequent free movement and compe-foremost, it must be underlined that there is neither a technical/ tition cannot be sustained if definitions and interpretations of biological, nor scientific, nor legal justification for this specificscope of legislation deteriorate.focus. The justification is entirely national and political.The discussion on the use and usefulness of herbicide toler-ant crops in French agriculture has been around for many years. While at first linked to classical transgenic GMOs, the discussionNo country in the world became wider and wider over the years, not least since no herbi-cide-tolerant transgenic GMOs were grown in France anyway forclassifies and regulates almost 10 years; and even when they were still grown, the totalproducts resulting from acreage was negligible. Still, herbicide tolerance has remained quite high on the national French political agenda. random mutagenesisIt is, of course, a significant trait in variety development.(in vitro or otherwise)Many, many crops grown today possess some degree of herbicide tolerance. Without it, chemical herbicide crop protection couldas regulated GMOs.result in total crop failure. These crops generally have resulted from a wide range of breeding methods, depending mainly on the biology of the species and how to best integrate the trait. So, from a scientific point of view, the link between herbicide tolerance, a specific plant breeding method, and the regulatoryFinally, the French proposal risks to create technical bar-question of what actually constitutes a GMO under EU legislationriers to trade under the World Trade Organizations (WTO) shouldnt really be made. But it is exactly what the French draftTechnical Barriers to Trade (TBT) Agreement (if not already a decree establishes. problem under the SPS Agreement). No country in the world clas-sifies and regulates products resulting from random mutagenesis THE EUROPEAN SEED SECTORS VIEW (in vitro or otherwise) as regulated GMOs. A unilateral deci-Euroseeds and its member companies and associations funda- sion by France to do so could have significant impact also on mentally object to the French interpretation of EU legislationinternational trade as legal obligations regarding transboundary (Directive 2001/18 and seed laws) and the European Court ofmovement, traceability and labelling, post-market monitoring Justice and Conseil dEtat rulings because of a number of fun- etc. would all need to be taken into account.damental reasons.The proposed definition of in vitro random mutagenesis isNEXT STEPS AND WAY FORWARDtechnically flawed. It is not based on science. This is acknowl- Member States and EU Commission originally had until 7 August edged even by Frances own High Council for Biotechnology(end of the so-called standstill period during which France which is unable to establish differences between the productscannot adopt and implement the decree) to issue comments or resulting from different forms of (in vitro) mutagenesis, a findinga so-called detailed opinions on the draft. The legal basis for also stressed by the European Academy of Science and manyany objection generally is an impact of the Decree on the EU other scientific publications. The impact of defining plants result- single market. Also, other EU and non-EU stakeholders as well as ing from in vitro random mutagenesis as non-exempted GMOs isthird country governments can provide comments. Meanwhile, therefore much broader as it practically affects all crops resultingnot only Finland and Austria submitted their concerns via the EUROPEAN-SEED.COMIEUROPEAN SEED I 25'