1 Directive (EU) 2015/412 of 11 March 2015 amending Directive 2001/18/EC as regards the possibility for the Member States to restrict or prohibit the cultivation of genetically modified organisms (GMOs) in their territory, OJ L68, p. 1.

2 See for a similar analysis N. de Sadeleer, Marketing and cultivation of GMOs in the EU. An uncertain balance between centrifugal and centripetal forces, 4/2015 EJRR, pp. 532-558. What would be required in the near future is that an entirely new and broader approach is developed for the regulation of modern biotechnology. This would encompass techniques of highly invasive breeding and of synthetic biology; at the same time, the genetic engineering law—itself in need of revision—would be merged with such an approach. See G. Winter, P. Knoepfel, H.-P. Fricker, The biotechnical utilisation of genetic resources and its regulation. An integrative approach. Bienne (sanu durabilitas) 2014 (http://www.sanudurabilitas.ch/uploads/downloads/5/Durabilitas_2014_Genetic_resources.pdf

3 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 - Commission Declaration, OJ L 106, 17.4.2001, p. 1. Latest consolidated version http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02001L0018-20150402

4 Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed (Text with EEA relevance), OJ L 268, 18.10.2003, p. 1. Latest consolidated version http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02003R1829-20080410 According to the - rather dubious - prevailing interpretation food- and feedstuff also encompasses seeds as being “a source material for the production of food” (Art. 2(no. 8) Reg 1829/2003/EC). Cf. Recital 34 and Art. 6(3)(c) of the same Regulation.

5 See Art. 26a Directive 2001/18 which was introduced by Art. 43 Reg 1829/2003.

6 In this text, the term cultivation restriction encompasses the prohibition of cultivation in contrast to the aforementioned Directive, which uses ‘restriction’ and ‘prohibition’ separately.

7 Cf. Recital 8 of Directive (EU) 2015/412: “In that context, it appears appropriate to grant Member States, in accordance with the principle of subsidiarity, more flexibility to decide whether or not they wish to cultivate GMOs on their territory without affecting the risk assessment provided in the system of Union authorisations of GMOs, […]”.

8 Roth, G., Wittich, C. (eds.) Max Weber, Economy and Society, Berkeley (University of California Press) 1978, p. 1402 Google Scholar.

9 Habermas, J., The theory of communicative action, Cambridge (Polity Press) 2006, vol. II, chap. VI.2Google Scholar.

10 Cf. Winter, G., Fundament, A and Two Pillars. The Concept of Sustainable Development 20 Years after the Brundtland Report, in: Bugge, H.-C. and Voigt, C. (eds.) Sustainable Development in International and National Law, Groningen (Europa Law Publishing) 2008, pp. 25–45 Google Scholar

11 Taking Germany as an example the extension of the right to property to business corporations had already been prepared by the Supreme Court of the German Reich (Reichsgericht) and was continued by the Federal Court of Justice (Bundesgerichtshof - BGH). Cf. Rittstieg, H., Eigentum als Verfassungsproblem, Darmstadt (Wiss. Buchgesellschaft) 1975, pp. 252–271 Google Scholar. Concerning the right to profession the Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) detached its protective scope from traditional vocation profiles and included also any “atypical (but permissible) activities freely chosen by individuals” (BVerfGE 7, 377 (397). While in the fine-tuning of the protective intensity the court still somewhat privileged the personal aspect of a vocation, this context has meanwhile been lost almost completely (cf. BVerfGE 68, 193 ff. (206); remnants in BVerfGE 95, 220 et seq. (242) and BVerfGE 99, 367et seq. (389)).

12 For this development and its criticism, which has faded away nowadays, cf. Ehmke, H., Wirtschaft und Verfassung, Karlsruhe (C. F. Müller) 1961, pp. 7 ff., 56 ffGoogle Scholar. For a late yet somewhat farcical case of this problematique see BVerfGE 80, 137 ff., where the court declared horse riding in forests as protected by the basic right to developing one's personality, Judge Grimm dissenting pp. 164 et seq.

13 Art. 12 and 13 EECT, now Art. 34 and 35 TFEU.

14 ECJ Case 26/62 (van Gend & Loos), Slg. 1963, pp. 25 f.; ECJ Case 8/74 (Dassonville) paras. 7/9.

15 ECJ Case 15/83 (Denkavit), para 15. See also fn. 67 below.

16 Fauchald, O., Property and environmental protection in investorstate arbitration, in: Winter, G. (ed.) Property and environmental protection in Europe, Groningen (Europa Law Publishing) 2016, pp. 77–92 Google Scholar.

17 Recent discourses on bringing human rights in into trade disputes (cf E.-U. Petersmann, International economic law in the 21st century, Oxford (Hart Publishing) 2012, chapters IV and VII) are under risk to finally end up with even more strengthening economic property rights. As an example see Petersmann himself, op. cit. p. 469: “By giving private investors directly enforceable rights to challenge governmental investment restrictions […] international investment law offers private citizens legal and judicial remedies that tend to be more effective in most other areas of international law, including human rights law and international trade law”. The statement is true but for the obtuse equating of investors’ rights and human rights.

18 For an account of subjective rights and locus standi in environmental matters see the contributions in Jans, J. H., Macrory, R., Moreno Molina, A. M. (eds.) National courts and EU environmental law, Groningen (Europa Law Publishing) 2013 Google Scholar, on EU law, and Birnie, P., Boyle, A., Redgwell, C., International law and the environment, Oxford University Press 3 ^rd ed. 2009, pp. 268–315 on international and comparative lawGoogle Scholar.

19 For an elaborate discussion see Craig, P., UK, EU and global administrative law, Cambridge (CUP) 2015, pp. 236–260, 477-487CrossRefGoogle Scholar.

20 For the EU see the landmark decision CFI T-13/99 (Pfizer). Cf. Craig, op. cit. pp. 478-487. For the WTO see analysis below, chapter IV..

21 Kritikos, M., Traditional risk analysis and releases of GMOs into the European Union: Space for non-scientific factors? European Law Review 2009, pp. 405–432 Google Scholar; Chalmers, D., Davies, G., Monti, G., European Union Law, Cambridge (CUP) 2 ^nd ed. 2010, pp. 902–905 CrossRefGoogle Scholar; P. Lamy, The Emergence of collective preferences in international trade: implications for regulating globalisation. Speech at the Conference on “Collective preferences and global governance: what future for the multilateral trading system”, Brussels, 15 September 2004, available at http://europa.eu/rapid/press-release_SPEECH-04-400_en.htm?locale=en (8.01.2016). See further on the WTO dispute settlement practices infra ch. IV.

22 See further Renn, O., Rohrmann, B. (eds.) Cross-cultural risk perceptions. A survey of empirical studies, Dordrecht (Kluwer) 2000 CrossRefGoogle Scholar.

23 In Germany explanations may be considered that lead back to German romanticism, to holistic conceptions of science and philosophy, to societal learning from the horrific effect of Nazi racial ideology, and others more. Cf. Watson, P., The German genius, New York (HarperCollins) 2010 Google Scholar.

24 Art. 26b(1) Directive 2001/18/EC.

25 Art. 26b(4)(c) Directive 2001/18/EC.

26 Art. 26b(3)(cl. 1) Directive 2001/18/EC.

27 Art. 26b(3)(1) Directive 2001/18/EC.

28 See for an authoritative formulation of the doctrine ECJ C-331/88 (Fedesa), para. 14.

29 Effet utile is an interpretation guidance often used by the CJEU to enhance the effectiveness of EU law. See Chalmers, D., Davies, G., Monti, G., European Union Law, Cambridge (CUP) 2 ^nd ed. 2010, p. 1015 CrossRefGoogle Scholar.

30 Chalmers/Davies/Monti, op. cit. p. 368.

31 ECJ C-331/88 (Fedesa), para. 14.

32 Cf. Craig, P., EU Administrative Law, Oxford (OUP) 2006, chap. 17 and 18CrossRefGoogle Scholar.

33 For an example in the ECJ jurisdiction see ECJ C-594/10 (van Laarhoven) para. 33 concerning tax law, where the court held that a flat rate method of calculating taxes is allowed if proportional to its aim.

34 BVerfGE 67, 157 (175). In German police law the doctrine was developed that normative acts may be based on an “abstract danger” (“abstrakte Gefahr”) while the precondition for individual acts is a “concrete danger” (“konkrete Gefahr”). Cf. C. Gusy, Polizeirecht, Tübingen (Mohr Siebeck) 5th ed. 2003, p. 407.

35 Art. 26b(3)(2)(2nd subcl.) Directive (EU) 2015/412.

36 Annex II C. to Directive 2001/18 (EC).

37 See for an elaborate concept of the relationship between risk assessment and management the procedural manual of the Codex Alimentarius Commission. Both operations are to be conducted by separate but interacting authorities. The risk manager and not the risk assessor is responsible for drawing conclusions from situations of uncertainty (CAC Procedural Manual, 32rd ed. No. 25, 28 (pp. 112 f.). Available at ftp://ftp.fao.org/codex/Publications/ProcManuals/Manual_23e.pdf 2015 (8.01.2016).

38 See further below sub bb).

39 Cf. Art. 114 (3) TFEU; for the WTO agreements see infra ch. IV 1 c) aa).

40 Similarly A. Stirling, On science and precaution in the management of technological risk, EC Joint Research Center, May 1999, pp. 19. ff. (http://ftp.jrc.es/EURdoc/eur19056en.pdf (8.01.2016).

41 Such action would fall under the jurisdiction of the ECJ, see Art. 51(a) ECJ Statute.

42 EFSA Panel on Genetically Modified Organisms (GMO), Guidance on the environmental risk assessment of genetically modified plants. EFSA Journal 2010;8(11):1879. [111 pp.]. doi:10.2903/j.efsa.2010.1879. Available at http://www.efsa.europa.eu/en/efsajournal/pub/1879.htm.

43 A rich analysis of the possibilities and limitations of the scientific study and assessment of different risks can be found in the Umweltgutachten 1987 des Sachverständigenrats für Umweltfragen (SRU), BT Drs. 11/1568. For the gaps regarding ecotoxicology, see especially No. 3.1.3.2.

44 For the state of the dispute, see Statement of EFSA on the consolidated presentation of opinions on the use of antibiotic resistance genes as marker genes in genetically modified plants, The EFSA Journal (2009) 1108, pp. 1-8.

45 This includes the silencing of genes (gene silencing), position effects in the molecular context of the introduced transgene, und pleiotropic effects, i.e. the simultaneous effect on several characteristics. Cf. Moch et al., Epigenetische Effekte bei transgenen Pflanzen: Auswirkungen auf die Risikobewertung. BfN-Skripten Bd.187, 2006, pp. 20 et seq. http://www.bfn.de/fileadmin/MDB/documents/service/Skript187_gesamt.pdf (8.01.2016).

46 As with herbicide-resistant seeds that trigger the application of broad spectrum herbicides, which in turn threatens biodiversity (M. S. Heard et al., Weeds in fields with contrasting conventional and genetically modified herbicide-tolerant crops. I. Effects on abundance and diversity. Phil. Trans. R. Soc. Lond. B 358/2003, pp. 1819-1832), or as with insecticidal seeds that release toxins into the soil, cause new resistances, etc.

47 See, for instance, the argumentation in Scientific Opinion on GM insect resistant and herbicide tolerant maize MON 88017 for cultivation, EFSA Journal 2011;9(11):2428 regarding the effect on non-target organisms and herbicide management.

48 This formulation matches the one used by the Codex Alimentarius Commission, according to which in risk management “decisions should be based on risk assessment, and taking into account, where appropriate, other legitimate factors relevant for the health protection of consumers and for the promotion of fair practices in food trade […]” (CAC Procedural Manual, 32rd ed.).ftp://ftp.fao.org/codex/Publications/ProcManuals/Manual_23e.pdf (8.01.2016).

49 European Commission, “Framework for the socio-economic analysis of the cultivation of genetically modified crops. First Reference Document, third Draft, 02 July 2014”, Available at http://ec.europa.eu/dgs/health_food-safety/dgs_consultations/docs/ag/sum_20141212_pres_4_en.pdf (8.01.2016); CBD Secretariat, Report of the Ad hoc Technical Expert Group on Socioeconomic Considerations. Annex: Elements of a framework for conceptual clarity on socio-economic considerations UNEP/ CBD/BS/AHTEG-SEC/1/3. 2014. Available at https://www.cbd.int/doc/meetings/bs/bs-ahteg-sec-01/official/bs-ahteg-sec-01-03-en.pdf (8.01.2016).

50 See, however, the rather superficial Commission report, European Commission, Report from the Commission to the European Parliament and the Council on socio-economic implications of GMO cultivation on the basis of Member States contributions, as requested by the Conclusions of the Environment Council of December 2008. SANCO/10715/2011 Rev. 5 (POOL/E1/2011/10715/10715R5-EN.doc).http://ec.europa.eu/food/plant/docs/plant_gmo-socio-economic_considerations-socio_economic_report_gmo_en.pdf (8.01.2016).

51 Similar M. Herdegen in H.-G. Dederer, M. Herdegen, Anbauverbote für gentechnisch veränderte Organismen(„Opt-Out”), Berlin (LIT Verlag) 2015, at fn. 62.

52 The European Commission ignores this in its draft of a Framework for the socio-economic analysis of the cultivation of genetically modified crops (above fn. 49).

53 F. Hofmann, M. Otto, W. Wosniok, Maize pollen deposition in relation to distance from the nearest pollen source under common cultivation - results of 10 years of monitoring (2001 to 2010), in: Environmental Sciences Europe 2014, pp. 24 et seq.

54 See also Umweltgutachten 2004 des Sachverständigenrates für Umweltfragen, Baden-Baden (Nomos) 2004, No. 10.2.5.

55 Consistent case-law of the BVerfG since BVerfG 7, 377 ff. (407 f.) and the ECJ, see, for instance, ECJ C-203/96. (Dusseldorp) para. 44.

56 Cf. Art. 4(3) Reg (EC) 1107/2009.

57 Art. 26b(3)(2)(1st sub-cl.) Directive 2001/18/EC.

58 Cf. the description by the Arbeitsgemeinschaft Bäuerliche Landwirtschaft e.V.: “'Bäuerlichkeit'—small-farm life, mindset and economic activity—means a bond with farm, nature and home, responsibility for animals, soil and plants, largely self-directed work, mindset in terms of generations and circuits, work related to the family or other close social relationships. The aim of rural economic activity is of course the best possible income, but always in the context of preserving the work place and farm—and not short-term maximum capital return without regard to the content and location of production. This stands in stark contrast to an agro-industrial orientation.” (available at http://www.abl-ev.de/fileadmin/Dokumente/AbL_ev/Agrarpolitik/15-03-Beilage_Bauernstimme-kl.pdf (8.01.2016) (author's translation).

59 Local learning AKST is the most promising and workable among four options of agricultural development described in Agriculture at the Crossroads, International Assessment of Agricultural Knowledge, Science and Technology, vol. IV: North America and Europe, 2009 (available at http://www.weltagrarbericht.de/reports/NAE/NAE_full_report.pdf (8.01.2016), p. 200: “Local learning AKST is regionally focused and proactive in meeting local development and sustainability goals. It is a well coordinated multiactor system that successfully integrates the different goals at regional and local levels. It successfully contributes to the goals of enhancing livelihoods, equity and social capital and environmental sustainability. Nutrition and human health are improved through knowledge-based sustainable, fresh and safe local diets and a reduction in meat consumption. Balanced regional economic development and stewardship of natural resources are promoted by keeping the added value and employment of input production, processing, transportation and marketing in the region and through investments in quality growth and welfare services. Due to the local orientation, there is little exportation of products or knowledge outside of NAE, but more resources of low-income countries are left untouched by NAE so they can serve other purposes including the provision of food, fiber and fuel for their own consumption. Nevertheless, many technologies developed for NAE could be appropriate for resource-poor rural communities also in low-income countries.”

60 Mind that according to Art. 42 sec. 1 TFEU the chapter on competition is only applicable to agricultural production insofar as the European Parliament and the Council so determine respecting the more complex goals of EU agricultural policy. For the WTO see the preamble of the Agreement on Agriculture which prescribes to “have regard to non-trade concerns, including food security and the need to protect the environment.”

61 Cartagena Protocol on Biosafety to the Convention on Biological Diversity, adopted 2000.

62 Under Art. 8 of the Swiss Gene Technology Act, it is a fundamental duty to honour the dignity of living beings: “In animals and plants, modification of the genetic material by gene technology must not impair the dignity of living beings. In particular, impairment is deemed to have occurred if such modification substantially harms species-specific properties, functions or habits, unless this is justified by overriding legitimate interests. In evaluating the harm, the difference between animals and plants must be taken into consideration.”

63 ECJ C-165/08 (Commission v Poland) paras. 30 f.

64 ECJ C-165/08 paras. 54 f.

65 ECJ C-165/08 para. 56.

66 See especially ECJ C-112/00 (Schmidberger), paras. 65 ff., which concerned traffic-obstructing demonstrations against air pollution by heavy goods vehicle traffic on the Brenner motorway.

67 Kahan, Similar D. H., Cultural cognition as a conception of the cultural theory of risk, in: Roeser, S., Hillerbrand, R., Sandin, P., Peterson, M. (eds.) Handbook of risk theory, Springer 2012, pp. 725–759 CrossRefGoogle Scholar.

68 I leave out the test of compatibility of cultivation restrictions with fundamental rights to enterprise and private property of national constitutions and of the CFREU. Neither do I discuss whether Art. 26b Directive 2001/18/EC itself is compatible with the principle of free movement of goods (cf. in that regard ECJ C-15/83 (Denkavit) para. 15). The test is about the same on all of these levels asking whether the public interest is legitimate and the measure proportional. It should be noted that not only the fundamental rights of GM but also that of conventional and organic farming are affected; in sum, this is about balancing multipolar relationships for which the legislator and regulator possesses broad discretion.

69 ECJ C-573/12 – Aaland Vindkraft AB – para. 57: “In that regard, it should be noted that the Court has consistently held that, where a matter has been the subject of exhaustive harmonisation at EU level, any national measure relating thereto must be assessed in the light of the provisions of that harmonising measure and not in the light of primary law.“

70 Alternatively one might consider the unspecified grounds enabled by the term “for instance” in Art. 26b Directive 2001/18 as not being harmonized. In that case a partial harmonization would be given. For the possibility of partial harmonization, see ECJ C-402/03 (Skov Aer) paras 22 et seq. It needs to be noted that the entire problematique of Member States introducing additional measures would not have emerged, if the approval of seed had been based on Art. 175 ECT (now Art. 192 TFEU) instead of Art. 95 ECT (now Art. 114 TFEU). This legal foundation is more apposite, since seed is meant to be used stationary, similar to an industrial plant. It would have provided Member States with the latitude of Art. 176 (now Art. 193 TFEU). (I owe this consideration to Ludwig Krämer).

71 On the parallel question of the compatibility of coexistence measures in the realm of Art. 26a Directive 2001/18/EC cf. the statement in ECJ C-36/11 (Pioneer) paras. 70 f. that “a prohibition or restriction on the cultivation of those products may be adopted by a Member State in the situations expressly provided for in European Union law. (71) Those exceptions include […] the coexistence measures adopted under Article 26a of Directive 2001/18.”

72 ECJ C-142/05 (Mickelsson and Roos), para. 28. Also ECJ C-110/05 (Commission v Italy) paras. 56 f.

73 One should note that within the “inherent nature” the ideology of the free movement of goods is reified into a kind of entelechy of the product. Is the inherent nature of a sports car not also hampered, when a state opts for a general speed limit of 120 km/h? Will the manufacturer bring France soon before the ECJ in order to attack the French general speed limit of 120 km/h? One should not object that at the stage of justification certainly many possible grounds could be accepted. Functionally, this is about a further step towards the dominance of the freedoms of business enterprises vis-à-vis societal interests noted above ch. I. 2. In the future, the ECJ will not only decide which items must be purchasable, but what use society has to make of products. Take the example of the sports car: The ECJ would then be able to decide that it is inappropriate and unnecessary to limit traffic speed, when there is little traffic, it is night, there are six lanes, etc. For a similarly critical assessment, see Epiney/Waldmann/Oeschger/Heuck, Die Ausscheidung von gentechnikfreien Gebieten in der Schweiz de lege lata et de lege ferenda, Zürich (Dike Verlag) 2011, p. 27.

74 ECJ C-142/05 para. 25.

75 The ECJ seems to have definitely given up the differentiation of possible grounds with regard to the equal or unequal treatment of foreign and domestic products. Cf. ECJ C-573/12 (Alands Vindcraft AB), para. 76.

76 See further the reference to Art. 34/36 TFEU above II. 3. d).

77 Dederer/ Herdegen, op. cit., at fn. 32 and 163.

78 ECJ C-243/01 (Gambelli) para. 67. Also ECJ C-316/07 (Stoß) para. 103.

79 In a similar vein ECJ C-171/07, 172/07 (Apothekerkammer des Saarlands) para. 42; C-137/09 (Marc Michel Josemans) para. 70.

80 ECJ C-284/95 (Safety Hi-Tech Srl) paras. 44, 45.

81 BVerwGE 69, 37 (45 f.).

82 Cf. Art. 216(2) TFEU.

83 European Communities — Measures Concerning Meat and Meat Products, WT/DS26/AB/R, WT/DS48/AB/R 1998, No. 186 f., 200 (in the following cited as EC-Meat Products); European Communities — Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R 2006, No. 7.3240 (In the following cited as EC-Biotech Products).

84 EC-Biotech Products, No. 7.3240.

85 EC-Biotech Products, No. 7.3240 and section F (pp. 868 et seq.).

86 Fauna and Flora are mentioned in fn. 5 to Annex A, but the inclusion of the micro level is not intended there. It is rather only concerned with adding wild species to agrarian animals and plants.

87 EC-Biotech Products, No. 7.219.

88 EC-Biotech Products, No. 7.219, 3rd sentence.

89 EC-Biotech Products, No. 7.285 and 7.286.

90 International Standard for Phytosanitary Measure No. 11, Pest Risk Analysis for Quarantine Pests Including Analysis of Environmental Risks, FAO, Rome, 2004 (adopted April 2004), Annex 1, p. 34, quoted in EC-Biotech Products, No. 7.235.

91 EC-Biotech Products No. 7.240.

92 In EC-Biotech Products, they are called “GM plants growing where they are undesired”, see No. 7.243-7.247.

93 EC-Biotech Products, No. 7.464.

94 Directive 2001/18/EC Annex II D 2. Cf. EC-Biotech Products, No. 7.285 and 7.286.

95 EC-Biotech Products, No. 7.226.

96 Cf. Art. 31(1) Vienna Convention on the Law of Treaties.

97 EC-Biotech Products, No. 7.369-7.373. No. 7.370 even mentions a reputational damage.

98 Similar Dederer in: Herdegen/Dederer, op. cit., fn. 236.

99 EC-Biotech Products, No. 4.355.

100 Cf. above ch. I. 2.

101 Art. 2.1 SPS Agreement.

102 Australia — Measures Affecting Importation of Salmon, WT/DS18/AB/R 1998, No. 523 (In the following cited as Australia-Salmon).

103 Cf. Art. 3.2 SPS Agreement. Clearly pointed out in Australia-Salmon, No. 199: “The determination of the appropriate level of protection, a notion defined in paragraph 5 of Annex A, as “the level of protection deemed appropriate by the Member establishing a sanitary … measure”, is a prerogative of the Member concerned and not of a panel or of the Appellate Body.” Cf. Mavroidis, P. C., Trade in goods. The GATT and the other WTO agreements regulating trade in goods, Oxford (OUP) 2012, pp. 721, 725Google Scholar.

104 Art. 5.4 SPS Agreement.

105 Art. 2.2, similar Art. 5.6 SPS Agreement.

106 Australia-Salmon No. 194.

107 See ch. II. 2 above.

108 Art. 5.1 SPS Agreement. Cf. EC-Meat Products, No. 180: “Article 2.2 informs Articles 5.1: the elements that define the basic obligation set out in Article 2.2 impart meaning to Article 5.1.“

109 Art. 5.2 SPS Agreement.

110 Art. 2.2 SPS Agreement. It is striking that this requirement is not established for determining the level of protection, except the latter is more stringent than aimed for in international standards (cf. Art. 3.3. SPS Agreement).

111 See for an in-depth analysis Mavroidis, op. cit. pp. 713-723.

112 Cf. the preamble to the WTO Agreement.

113 This justification for judicial self-restraint has been suggested by the German Federal Administrative Court, most significantly in BVerwGE 72, 300 (316 f.).

114 Cf. G. Winter, Regimekonflikte im globalisierten Recht: Erscheinungsformen und Lösungen, in: 20/4 GAIA, (2011), pp. 248 – 255.

115 Art. 5.7. SPS Agreement.

116 Cf. EC-Biotech Products, No. 7.89.

117 It should be noted that the SPS Agreement only knows the term risk assessment but not risk management, because the differentiation only appeared after its adoption. Cf. EC-Meat Products, No. 181.

118 See above ch. II. 3. a) bb).

119 See EC-Biotech Products, No. 7.982-7.984 in connection with the review of the Austrian regulation of maize T 25.

120 Ibidem.

121 EC-Biotech Products, No. 7.1129.

122 EC-Biotech Products, No. 7.952.

123 EC-Biotech Products, No. 7.1131 - 7.1134.

124 The very definition of risk assessment in Annex A of the SPS Agreement knows both the probability and the potentiality of adveres effects. See EC-Meat Products No. 183-4 and Mavroidis, op. cit. p. 718.

125 Cf. the respective reference in EC-Meat Products, No. 187.

126 European Communities – Measures Prohibiting the Importation and Marketing of Seals Products, WT/DS400/AB/R, WT/DS401/AB/R, No. 5.198.

127 Cf. United States — Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/AB/R 2008, No. 562.

128 EC-Meat Products, No. 187. Also quoted in Appellate Body Report, US – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/AB/R 2008, No. 527.

129 EC-Meat Products, No. 194. Also quoted in United States — Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/R 2008, No. 529.

130 United States — Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/AB/R 2008, No. 569.

131 Art. 2.5 TBT Agreement.

132 This is not the place to discuss, whether this corresponds to the original intention of the Agreements.

133 Annex 1(1) TBT Agreement.

134 The term “mandatory” is not significant here, since it points to the difference to international standards.

135 EC – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R no. 5.60.

136 Cf. Above ch. III. 1.

137 US – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/AB/R, No. 201. EC - Measures Affecting Asbestos and Products Containing Asbestos, WT/DS135/AB/R. 2001, No. 100. Dominican Republic - Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/AB/R, at IV 8.

138 A case of discrimination could be assumed, if one did not compare genetically modified seeds from abroad and home, but genetically modified seeds from abroad with domestic conventional seeds. The former would be limited in regard to cultivation, the latter not. For such a comparison, both product groups would have to be “like” products. This is not the case, because both products vary in their physical properties as well as in the perception and in the behaviour of consumers.

139 See for such extension covering renewable resources US – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R. 1998, No. 131.

140 See above ch. IV 1 b).

141 Cf. the parallel development concerning Art. 36 TFEU the justifiable grounds of which have been flanked by additional grounds in case of non-discriminatory measures. See above fn. 74.

142 Above ch. II 3 d).

143 EC – Measures Prohibiting the Importation and Marketing of Seal Products, no. 5.199, quoting the Panel in US – Gambling, no. 6.465, that “the term ‘public morals’ denotes ‘standards of right and wrong conduct maintained by or on behalf of a community or nation”. For a support of this understanding see Mavroidis, op. cit. pp. 332-334.

144 See further on this problem Mavroidis, op. cit. pp. 326-337.

145 It should be noted that the two types do not have sharp contours but may overlap depending on specification.