CJEU to rule on milestone in European GMO legislation: the legal classification of mutagenesis in plant breeding

With the development of new plant breeding techniques, the European plant breeding sector is tackling the world’s crucial challenge of feeding the 21st-century world. New plant breeding techniques allow for much faster and more precise results than traditional plant breeding techniques, and allow for more food to be produced with fewer inputs.  However, the novel nature of such techniques has recently raised the question as to whether or not these techniques lead to organisms that are GMOs and subject to stringent regulatory requirements.

The mostly theoretical legal uncertainty has recently become incontournable now that nine organisations have initiated legal proceedings (December 2014) against the French Environmental Code, arguing that organisms resulting from Targeted Mutagenesis constitute ‘new hidden GMOs’.  Indeed, the four preliminary questions referred by the French Conseil d’Etat to the CJEU serve to ascertain whether organisms resulting from new forms of mutagenesis should be subject to the GMO legislation.

The preliminary reference proceedings currently pending before the CJEU will undoubtedly constitute a milestone in the development of the EU’s GMO legislation. The importance of this preliminary ruling can indeed hardly be underestimated as the qualification of plant breeding techniques such as Targeted Mutagenesis could have far-reaching consequences for the resulting organisms.  Subjecting such organisms – which are already freely available on the European market – to the GMO legislation would make their commercialisation practically impossible.  Needless to say, the EU will also face remarkable competitive disadvantages regarding the development and propagation of plants and seed resulting from NBTs, which will affect agricultural innovation within the EU.

In this article, Tine Carmeliet and Geert Glas demonstrate that there are a plenty of legal arguments available within the current GMO framework that can provide guidance to the CJEU on how to resolve this issue.

This article was first published in BioScience Law Review (Vol. 16, Issue 2).