General Court explains the concept of environmental law in the Aarhus Convention and annuls Commission decision on products containing genetically modified soybeans

On 14 March 2018, the European General Court (General Court) ruled that non-governmental organisations (NGOs) have the right to request that the European Commission (Commission) review a decision that authorises the placing of genetically modified food and feed on the market.

The background to this judgment relates to a Commission’s 2015 decision in which the Commission authorised the placing on the market of foods, food ingredients and feed containing genetically modified soybeans, after the European Food Safety Authority (EFSA) had ruled that such products were as safe as their non-GMO counterparts.

The German NGO, Testbiotech, requested that the Commission review this decision basing its right to request a review on the Aarhus Convention, which grants NGOs the right to request an internal review in cases related to environmental matters.  After the Commission refused, claiming that the request was invalid as the decision related to human and animal health and not environmental matters, Testbiotech appealed this refusal to the General Court.

The General Court ruled that the request for an internal review did relate to environmental law and thus was allowed under the Aarhus Convention.  More specifically, the General Court stated that that the Regulation on genetically modified food and feed, on which the Commission’s 2015 decision was based, constituted an integral part of environmental law, as any genetically modified organism (GMO) must be cultivated before it can be processed into food or feed, and because such cultivation is a part of the natural environment, GMOs inevitably constitute an element of the environment.  It followed that the provisions of the rules on the labelling of GMOs whose objective is to regulate the effect of GMOs on human or animal health also relate to environmental law.

The General Court concluded that within the meaning of the Aarhus Convention, environmental law covers any provision of EU legislation regulating GMOs that has the objective of dealing with a risk to human or animal health, that either originates in those GMOs or in environmental factors that may have effects on GMOs when they are cultivated or bred in the natural environment.  This also applies in situations where the GMOs have not been cultivated within the EU.