UK: European Battleground for Genetically-Modified Organisms (GMOs) – Further News

Last Updated: 13 March 2003

It has been a busy day for the European Court of Justice, as no less than three cases relating to the marketing/use of GMOs are reported today.

Failure to implement Directive on the contained use of genetically modified micro-organisms

In Cases C-333/01 and C-436/01, the European Court has ruled that the failure by Spain and Belgium, respectively, to adopt laws to implement Directive 98/91/EC on the contained use of genetically-modified micro-organisms is a breach of Community law. The Commission brought enforcement action under Article 226 EC for a declaration that each Member State had failed to fulfil its obligations under the Directive. This may open up the potential for possible claims for damages by private persons against these respective Member States.

This is an interesting development to the moratorium maintained by a number of Member States (including these two) against the commercialisation/approval of GMOs. It indicates that the Commission is prepared to take a firm line with Member States blatantly flouting Community law. It remains to be seen whether the Commission would consider taking enforcement action against Member States holding off from approving new GMOs, until the proposed directive on the traceability and labelling of products containing GMOs is approved. However, it may yet do so. This is especially interesting at present, given that the US remains keen to take WTO enforcement proceedings against the EU for not lifting the moratorium against GMOs.

The legality of provisional measures to restrict the marketing/use of GM products

In another case pending before the European Court (C-236/01), the Italian courts have sought guidance on issues concerning the simplified approach for approval of GMOs, after a challenge in the Italian courts by Monsanto, Syngenta and Pioneer to the legality of an Italian Decree suspending the marketing/use of products derived from various GM maize lines.

In 1997 and 1998 the biotech companies placed on the market under the "simplified procedure" foods (flour), derived from GM maize. The competent United Kingdom food authority had previously certified that the products in question were substantially equivalent to traditional foods. The Italian Republic, however, had doubts as to the absolute safety of the products and imposed a provisional prohibition on the marketing/use of products derived from the maize lines. Monsanto and the others challenged the relevant Italian Decree, on the ground that it infringed Community law.

Foods which are produced from GMOs but no longer contain them may, under Regulation (EC) No. 258/97 concerning novel foods and novel food ingredients, be placed on the Community market under a simplified procedure, without prior authorisation by the Commission. A further condition for the use of the simplified procedure is that the novel food be substantially equivalent to comparable traditional food, which can be demonstrated by means of an authorisation from a national food assessment body.

In the present case, genes were inserted into maize, which render it resistant to certain herbicides and pests. The GM DNA is destroyed during the processing of the cornmeal, giving rise to a food which is derived from GMOs but no longer contains them, since no organism capable of growth any longer exists in the flour. Nevertheless, the cornmeal still contains a very small amount of transgenic protein (a product of the inserted gene) which, as far as it is known, poses no risk to human health.

The first question referred by the Italian court was to know whether substantial equivalence can exist even when foods continue to contain traces of transgenic protein. Advocate General Alber concludes that novel foods are to be considered substantially equivalent to traditional foods and may accordingly be placed on the market using a simplified procedure, even where they continue to contain traces of transgenic protein, provided it has been demonstrated that those substances do not pose any risk to the consumer.

Second, the Italian court also wished to know to what extent a Member State is entitled to take protective measures of its own, where doubts exist as to the substantial equivalence of novel foods with conventional foods. The Advocate General concluded that the Italian Government was entitled to adopt provisional measures, provided that it had detailed grounds for considering, as a result of new information or a reassessment of existing information, that the use of the food in question endangers human health or the environment. Those measures may be maintained until the Commission or the Council adopts a decision as regards the validity of the grounds put forward, which has not yet occurred.

It is worth noting that the Commission and the Member States agreed, in the light of concerns and criticism, no longer to use the simplified procedure, with effect from January 1998 for products derived from GMOs. The new proposal for a regulation on GM food and feed no longer provides for a simplified procedure.

This Opinion may form a useful basis for analysing the various "precautionary" measures taken by Member States under Article 16 of Directive 90/220/EEC (now under Article 23 of Directive No. 2001/18/EC) to restrict the marketing of authorised GMOs on grounds of alleged risks to human health or the environment. The test would seem to be whether the Member State had detailed grounds (and evidence) for considering, as a result of new information or a reassessment of existing information, that the use of the food in question endangers human health or the environment. Further, this would only justify a temporary measure, pending evaluation of the material by the Commission and a decision by the Council. However, it remains to be seen whether the European Court itself will follow this Opinion, when it gives judgment.

Article by Mark Shillito and Joel Smith.

© Herbert Smith March 2003

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us..

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.