The administration of Upper Austria responded by filing a complaint at the European Court of Justice. In October 2005, this complaint was dismissed in the first legal instance, due in part to the lack of new scientific arguments for a ban on cultivation. The Austrians had sought to justify their suit by citing the small-scale farming structures and high proportion of organic farming in the region. Arguably, due to their small farming lots, local organic farmers could not be protected adequately against accidental mixture of their crops with GM plants. The EU Commission rejected this argument with the response that small-scale farming may be found in almost all EU states and is not an Upper Austrian particularity.
Upper Austria lodged an appeal against this first judgment. The federal state complained of not having been given sufficient opportunity to present its case. Instead of conducting the hearing anew, the court cited an opinion of the European Food Safety Agency (EFSA) in its second rejection of the cultivation ban. In any event, according to the ECJ judgment, another hearing was unnecessary. In the interest of speedy procedures in such cases, no provisions exist under European legislation that oblige second hearings.
The ruling of the Luxembourg judges is no surprise. For example, the office of the Austrian Minister of Health, Andrea Kdolsky, released a statement that the judgment essentially had been expected. Furthermore, in contrast to the general cultivation ban, import bans on three genetically modified maize lines remain in place – and will be defended. “We persist in our ambition to produce foodstuff that is GM free,” added state agricultural councillor Josef Stockinger truculently. Stockinger also declared that, although the ECJ has toppled the ban law, he is convinced that things have been set in motion. The councillor demands that the EU Commission create the possibility for states to keep their fields free of gene technology. Upper Austria has joined forces with 40 other European zones to form an alliance of GM free regions.
In case of a decision by the ECJ to overturn of the ban law – which now has occurred – Upper Austria issued legislation titled as a “gene technology precaution law” already in 2006. Under this law, the cultivation of genetically modified plants is not prohibited but is hampered significantly.
The precautionary law contains requirements for the registration and approval of intent to cultivate GMOs, and mandates a public site register as well as extensive accountability conditions for farmers if GM plants stray onto fields of conventional or organic crops. The EU has not objected to this legislation.