Genetically Modified Crops, Agricultural Sustainability and National Opt­Outs – Enclosure as the Loophole?

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EU Member States are faced with a quandary – after decades of demanding powers to choose whether to cultivate genetically modified (GM) crops or not, the EU has returned some limited powers to them. A 2015 EU Directive permits Member States to ‘opt-out’ from GM cultivation, provided that they fulfil relevant criteria. Member States therefore now need to decide whether and how to restrict GM crops. A significant consideration is the question of agricultural sustainability (agri-sustainability). In principle GM crops have the potential to promote agri-sustainability, including through increasing agricultural biodiversity (agrobiodiversity). However, the applicability of intellectual property law to both the original GM crops and its progeny enables the legal enclosure of the crops’ genetic make-up, thereby potentially undermining agrobiodiversity and agri-sustainability. This paper argues that legal enclosure could justify imposing restrictions on GM cultivation, in order to conserve agrobiodiversity as an exhaustible natural resource essential to agri-sustainability. For such justifications to succeed legally at both the EU and WTO level, they must be distinguished clearly from any broader environmental concerns.
Original languageEnglish
Pages (from-to)1093-1122
Number of pages30
JournalCommon Market Law Review
Issue number4
Publication statusPublished - 01 May 2017


  • Agricultural sustainability
  • enclosure
  • genetically modified crops
  • opt-outs
  • Sustainability


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