Belgium is considered to have an intermediate level of restrictions on GMOs, although public opinion tends to generally be hostile to GMOs. Most of Belgium’s regulation of GMOs is directly or indirectly derived from European regulations. The fact that Belgium is a federal state has an important impact on the regulatory environment of GMOs, and the applicable rules can exist either at the federal or at the regional level, depending on the specific issue. Overall, regulation of GMOs in Belgium is mostly focused on authorization requirements prior to their production, use, or distribution; on mandatory technical requirements to limit the potential release of GMOs into non-GMO fields; and on information and transparency measures.

I. Introduction

Belgium has been a pioneer in the biotechnology sector, and two Belgian researchers, together with an American scientist, created the first genetically modified plant in 1983.[1] Several Belgian universities are still very active in GMO research.[2] Nonetheless, the use of genetically modified organisms (GMOs) is quite controversial in Belgium. Perhaps because of this dichotomy between an active GMO research agenda and a generally-hostile public opinion, Belgium is considered to have an “intermediate” policy on this topic: less permissive than countries such as the United States, and less restrictive than countries such as Germany.[3]

Back to Top

II. Public and Scholarly Opinion

GMOs are quite controversial in Belgium. A number of consumer rights organizations and environmental groups have voiced their opposition to GMOs, which has led to general concern over the potential risks of GMOs on the part of consumers.[4] A European Union public opinion study from 2007 found that only 22% of Belgians polled were in favor of GMOs, and 55% were against.[5]

This placed Belgium near the average for the EU as a whole (in the same study, 21% of EU citizens polled were in favor of GMOs, and 58% were against). Although this and other studies[6] show strong opposition to GMOs in Belgium, this hostility is not quite as strong as it is in some other European countries such as France or Germany.[7] It should also be noted that there seems to be a difference of opinion between the northern and the southern parts of Belgium. Indeed, there is more support for GMOs in Flanders than in Wallonia and Brussels.[8]

Back to Top

III. Structure of Pertinent Legislation

A. EU Regulations

As Belgium is a member of the European Union, its laws and regulations are subordinate to EU regulations regarding consumer and environmental protection.[9] These are issues of shared competence between the EU and Member States, which means that the Belgian government may enact and implement its own laws and regulations at the national level, as long as this does not conflict with EU-level regulations.[10] The main European texts regarding GMOs are Regulation (EC) 1829/2003 of the European Parliament and of the Council on genetically modified food and feed,[11] and Directive 2001/18/EC of the European Parliament and of the Council on the deliberate release into the environment of genetically modified organisms.[12] The first, being an EU regulation, automatically became applicable law in the Member States on the date it was published in the European official gazette. The second, being an EU directive, was not automatically and directly applicable, and each Member State is required to transpose the Directive’s provisions into its law by passing appropriate legislation at the national level.

B. Domestic Provisions

The main piece of national legislation regarding GMOs in Belgium is a Royal Decree from 2005, which essentially transposed the rules set out in Directive 2001/18/EC of the European Parliament and of the Council on the deliberate release into the environment of genetically modified organisms.[13]

At the national level, the Belgian federal government (particularly the Ministries for the Environment and for Public Health) is the principal authority with regard to regulating GMOs.[14] Given that Belgium is a federal state, however, the regional authorities of Belgium play a relatively strong role in the regulation of GMOs, mainly within the framework of a 1997 cooperation agreement between the federal government and the regions with regard to administrative and scientific coordination for biosecurity issues.[15]

C. Definition of GMO

The Royal Decree of February 21, 2005, defined a GMO in exactly identical terms as Directive 2001/18/EC of the European Parliament and of the Council: “an organism, with the exception of human beings, in which the genetic material has been altered in a way that does not occur naturally by mating and/or natural recombination” (“Un organisme, à l’exception des êtres humains, dont le matériel génétique a été modifié d’une manière qui ne s’effectue pas naturellement par multiplication et/ou par recombinaison naturelle”).[16]

Back to Top

IV. Restrictions on Research, Production, and Marketing

Belgian law on the research, production, and marketing of GMOs is fractured. As can be seen in the discussion below, certain rules come from the federal level and apply equally over the whole country, but much regulation is done at the regional level.

A. Use of GMOs in Confined Environments

The use of GMOs in confined environments (laboratories) falls under the authority of the regions. All three regions of Belgium (Wallonia, Flanders, and Brussels-Capital) have enacted legislation transposing European norms[17] into their respective regional laws.[18] All three regions require prior authorization for the use of GMOs in confined environments, and such authorization is based on assessments of risks and how such risks may be mitigated.[19]

B. Deliberate Release of GMOs in Open Environments for Research Purposes

The deliberate release of GMOs in open environments for research purposes is subject to governmental authorization as described in the Royal Decree of February 21, 2005.[20] A person or organization wishing to release GMOs for purposes other than commercialization must submit an application to the Federal Public Service (FPS) for Public Health, Food Chain Safety and Environment, which must evaluate the application’s admissibility in coordination with the Biosecurity and Biotechnology Service (BBS).[21] If the application is admissible, the file is sent to the regional ministers that may be concerned, and to the Biosecurity Counsel, which is supposed to give its opinion on the matter.[22] The general public is informed of the application, and its opinion is solicited, through a website.[23]

Once it has reached a decision, the FPS for Public Health, Food Chain Safety and Environment sends it, along with the opinion of the Biosecurity Counsel and the information provided to the public, to the ministers in charge of public health and the environment.[24] These ministers may then approve or reject the application.[25] If any event or new information comes to light that would change the facts upon which an approval was based, the relevant ministers must be informed of it, and they may suspend or revoke their authorization if need be.[26]

C. Distribution and Release of GMOs for Commercial Purposes

The use or commercial distribution of GMOs or products containing GMOs is subject to governmental authorization as described in the Royal Decree of February 21, 2005.[27] Alternatively, a GMO (or a product containing GMOs) can legally be used or commercially distributed in Belgium if it has another EU Member State’s written authorization for the same purposes.[28]

In a procedure generally similar to what is required for the release of GMOs for research purposes (see above), the application to use or market GMOs first goes to the FPS for Public Health, Food Chain Safety and Environment, which evaluates the application’s admissibility in cooperation with the BBS, and then sends the file to the competent federal and regional ministers and to the Biosecurity Counsel.[29] The general public is also informed and consulted via a website.[30] The European Commission and other EU member states are informed as well,[31] and they have sixty days from the date of their receipt of the file to voice any objections to the possible authorization of that GMO.[32] Any authorization is subject to periodic renewal,[33] and the authorization may be changed or revoked if new information comes to light that justifies it.[34]

D. Transparency Rules for GM Crops

The Flemish government requires anyone intending to plant GM crops to give official notice to the regional authorities,[35] and also to notify other farmers whose lands are situated within a certain distance from the proposed GM crops.[36] The appropriate governmental authorities are to maintain an online register listing certain information regarding fields of GM crops.[37] Some of the information on this register is made available to the public, including the size of each field, the type of crop grown on it, and the township in which it is located.[38] Some of the more specific information, however, such as the name and address of the GM-growing farmer, the exact location of the field, and the precise variety of GMO planted in it, is only made available to certain official bodies and not to the general public.[39]

The Walloon government also requires any farmer wishing to plant GM crops to give official notice to the regional authorities,[40] and to notify other nearby farmers as well as any other farmers who might use the same equipment as the GM farmer.[41] The Walloon authorities may allow the public to have access to certain information regarding GM crops, and contrary to what is the case in Flanders, they can make public the GM farmer’s name and business address, as well as the GM field’s precise location and time of cultivation.[42]

No analogous regulation seems to exist in the Brussels-Capital region, but this is probably because Brussels-Capital is primarily an urban area, where such rules would have little relevance.

Back to Top

V. Restrictions on Releasing Organisms into the Environment

Rules intended to prevent or limit the release of GMOs into the environment are primarily within the domain of regional authorities. Flanders requires that farmers intending to plant GMOs follow a training course to ensure that they know the best practices to prevent the accidental release of GMOs into the environment.[43] The Flemish government also requires that GM crops be separated from other crops. The specific separation distance differs according to the crops in question: for example, the buffer zone for GM maize must be at least fifty meters,[44] while the minimum buffer zone for sugar beets is only five meters.[45]

Wallonia also mandates that there be a separation zone between GMOs and other crops.[46] It seems that, as of yet, only the separation zone for GM maize has been specifically defined: the buffer zone must be at least 600 meters if the field does not have a band of non-GM crops at its edges, or it can be of 300 meters if there is a band of non-GM maize around the edges (the non-GM band must be at least six rows wide).[47] Wallonia also mandates certain specific procedures and practices with regard to the seeding of GM crops; their harvest, transportation, and storage; and the handling, cleaning, and maintenance of equipment used for their cultivation.[48]

As with the transparency rules for GM crops discussed in Part IV(D), no analogous regulations seem to exist in the Brussels-Capital region. As mentioned earlier, this is probably because Brussels-Capital is mostly an urban area, where such rules would have little relevance.

Back to Top

VI. Restrictions on GMOs in Foodstuffs

The sale of GMOs is authorized at the European level in accordance with Regulation (EC) 1829/2003 of the European Parliament and of the Council with regard to food for human or animal consumption.[49] Furthermore, the use of GMOs for commercial purposes is subject to authorization under the Royal Decree of February 21, 2005, as described above.[50]

Additionally, rules on traceability and labeling are established through Regulation (EC) 1830/2003 of the European Parliament and of the Council concerning traceability and labeling of genetically modified organisms and the traceability of food and feed products produced from genetically modified organisms.[51]

Contrary to some other EU Member States, Belgium does not provide for specific “no GMO” labels highlighting the absence of GMOs in a product. These types of labels would run against existing Belgian law on advertising, and are therefore not allowed.[52]

Back to Top

VII. Liability Regime

There does not seem to be a specific liability regime for GMOs in Belgium, whether at the federal level or the regional level, beyond the normal rules of civil liability. The regions of Flanders and Wallonia, however, have institutional mechanisms that are indirectly related to the concept of liability for GMO producers.

Flanders has a sort of mandatory insurance system, by which all farmers are required to pay into a Fund for Agriculture and Fishing, which is to indemnify them if they suffer certain economic losses.[53] Farmers who plant GM crops may be required to pay extra contributions into the fund, in order to make up for the indemnities that this fund may have to pay non-GM farmers due to contamination from GM crops.[54] Furthermore, this fund may require a GM crop farmer to reimburse it when the fund had to pay indemnities to non-GM crop farmers due to the GM crop farmer’s failure to follow proper rules and best practices with regard to his/her GM crops.[55]

The situation is very similar in Wallonia. That region has a Budgetary Fund for the Quality of Plant and Animal Products (Fond budgétaire de la qualité des produits animaux et végétaux),[56] which is very similar to the Flemish Fund for Agriculture and Fishing. Like its Flemish equivalent, the Walloon fund is supposed to indemnify farmers for various types of economic damage they may suffer, including contamination from nearby GM crops.[57] If a court finds a GM crop farmer to be liable for the damage to other crops, then the fund may require that farmer to reimburse it for the indemnities that it may have had to pay the farmers of these damaged crops.[58]

Back to Top

VIII. Judicial Decisions / Prominent Cases

The production of GMOs is a very controversial topic in Belgium, and certain anti-GMO activists have resorted to destroying or degrading fields of GM crops.[59] The first such destructions happened in 2000, and became an increasingly frequent occurrence over the next few years.[60] This has led to several well-publicized trials, and some militants were found guilty by the courts.[61] The sentences tended to be very light, such as when thirteen activists were sentenced to pay one symbolic Euro to the Monsanto Corporation in 2004.[62] Some sentences can be heavier, however. For example, a group of militants that destroyed a field of experimental GM crops in 2011 was recently sentenced to pay €25,000 (approximately US$33,400) in damages to the owners of the crops.[63]

Back to Top

Nicolas Broing
Foreign Law Specialist
March 2014

---