European Union: GMOs: A Principle Established With…Precaution

Last Updated: 4 October 2011
Article by Katia Merten-Lentz

In the midst of the debate over the co-existence of traditional and GM crops, the Court of Justice of the European Union (ECJ) has delivered two very important judgments in the space of a few days. The first invalidates the French moratorium on GMOs for not being based on the correct EU legislation. The second rules that honey containing GMO traces, even unintentionally, cannot be marketed without prior authorization.

The issue of GMOs approval is still being debated within the European Union. While the European Parliament and the Council are negotiating the proposed amendment of Directive 2001/181, which may give Member States the possibility of prohibiting GMOs already approved at European level, the ECJ is putting its shoulder to the wheel.

The invalidation of the French moratorium

In a judgement of 8 September 20112, the ECJ invalidated the French moratorium on genetically modified (GM) crops, because France did not base its decision on the proper EU legislation. As a reminder, France adopted between 2007 and 2008 a series of decrees suspending the sale, use and cultivation of the GM maize seeds MON 810. Monsanto and other seed companies appealed to the French Conseil d'Etat (France's highest administrative jurisdiction) which decided to stay the proceedings and refer to the ECJ questions regarding the rules governing such emergency measures. The ECJ ruled that France could not adopt its decision on the basis of the safeguard clause set down in Directive 2001/18, the product in question being governed by Regulation 1829/20033. Nevertheless, the Court also explained that the measures could have been adopted under this regulation. The moratorium will remain in force until the final decision of the Conseil d'Etat, but France already knows that it must amend its moratorium very quickly.

This decision illustrates once again France's reluctance regarding the cultivation of GMOs on its territory. While this debate seems rather outdated, France may nevertheless find new grounds for defences as the issue of the co-existence of GM and traditional crops persists.

Traces of GMOs cannot be marketed without prior authorization

In a judgment dated from 6 September 20114, the ECJ, ruling on questions referred to it by a German court, found that honey containing traces of pollen derived from GM maize may only be marketed following prior authorization, regardless of the fact that the introduction of the pollen in question was unintentional or accidental, and irrespective of the proportion of GM material contained in this honey. This preliminary ruling stems from a request by a Bavarian beekeeper who produced honey near public land on which Monsanto had been allowed to grow maize MON 810 for research purposes. In 2005, following the detection of very small quantities of MON 810 maize DNA in his honey, he initiated proceedings against Bavaria and Monsanto, seeking both a declaration that his honey had been rendered unsuitable for marketing, and damages caused as a result.

On this occasion, the Court went beyond the traditional question of GMO labelling, and ruled on the even more sensitive and restrictive issue of market approval. Based on a very broad interpretation of the precautionary principle5, the Court has sent a strong signal by implicitly recognizing the severity of accidental contamination.

This decision is undoubtedly likely to entail serious consequences, not only giving ammunition to GM crops detractors, but also affecting imports of honey or other agricultural products from countries that have authorized the cultivation of GMOs on their territory.

Footnotes

1. 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, OJ 2001, L 106/1

2. Monsanto SAS v. Ministre de l'agriculture et de la pęche, C-58/10 to C-68/10

3. Regulation (EC) N° 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed, OJ 2003, L 268/1. The regulation allows the adoption of safeguard measures by a Member State when he officially informed the European Commission that they were necessary, but which took no action.

4. Karl Heinz Bablok e.a. v. Freistaat Bayern, C-442/09

5. On the interpretation of the precautionary principle, see recent judgement of the ECJ from 22 December 2010 Gowan Comércio Internacional e Serviços Lda v. Ministero della Salute, C-77/09, para. 82, where the Court found that  "it must be acknowledged that the Commission has a wide discretion when it adopts risk management measures [...]. That procedure entails political choices on its part and complex assessments. The legality of a measure adopted in that area can be affected only if the measure is manifestly inappropriate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Katia Merten-Lentz
 
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