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- Last month, the Court of Justice of the European Union (CJEU) confirmed that member states may restrict or prohibit by law the cultivation of authorized genetically modified organisms (GMOs), provided that the conditions set out in the directive 2001/18/EC (on the deliberate release into the environment of GMOs) and Regulation (EC) No 1829/2003 (on genetically modified food and animal feed) are complied with.
- The case arose following the imposition of penalties on a farmer for violating an Italian regional law (no. 5/2011) prohibiting the cultivation of MON810, an authorized GMO maize. The farmer filed an objection against the sanction with the national court, which suspended the proceedings to request a preliminary ruling from the Court of Justice (a jurisdiction within the CJEU) on the correct interpretation of the regulatory framework of the EU on GMOs.
- Citing article 26-bis(1) of Directive 2001/18/EC, which states that “Member States may take appropriate measures to avoid the accidental presence of GMOs in other products”, the Court ruled that Member States may not adopt as preventive measures to avoid the accidental presence of GMOs GMOs in other products. In line with the Commission Recommendation of 13 July 2010, this allows Member States to ensure that farmers and consumers have a choice between organic, conventional and GMO production. However, these restrictive measures cannot be justified by the need to protect human health or the environment, since all authorized GMOs are already assessed for such risks according to the procedures laid down in Directive 2001/18/EC and Regulation No. ° 1829/2003. Furthermore, all such measures must be proportionate, as they must reduce their restrictive effects to what is necessary to achieve their objective.
- Therefore, according to this decision, the national court must determine whether the regional law is necessary and proportionate to avoid cross-contamination between GMOs and conventional crops. The national court must base its decision on the degree of contamination and the likelihood of further contamination, taking into account specific geographical factors and the economic consequences for producers if a higher degree of contamination occurs.
- The decision is based on Directive 2001/18/EC, which, although still in force, was later amended by Directive (EU) 2015/412 to provide a procedure (in new Article 26b) by which Member States may request that the geographical area the scope of a GMO notification be submitted or that an authorization already granted be adjusted to exclude all or part of the territory from cultivation.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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