Is a local GMO ban compliant with EU law?
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In the EU, the release and placing on the market of GMO’s is regulated by Directive 2001/18 on the deliberate release into the environment of genetically modified organisms (the Directive) and Regulation 1829/2003 on genetically modified food and feed (the Regulation). The Directive repeals Directive 90/220 and sets up harmonised principles and procedures for the release into the environment or the placing on the market of GMOs in view of public health and environmental considerations. Any authorisation granted according to the Directive has EU-wide effects. However, Art. 26b of the Directive allows Member States to adopt necessary measures to avoid the unintended propagation of GMO in other products. The Recommendation of 13 July 2010 on guidelines for the development of national co-existence measures to avoid the unintended presence of GMOs in conventional and organic crops (the Guidelines) specifies the factors to be followed by Member States when they intend to apply Article 26b of the Directive. In parallel, the Regulation applies the Directive principles to authorisation procedures for genetically modified food and feed. It also includes provisions regarding the maintenance of previous decisions on the release of GMO granted under Directive 90/220.
The decision of the CJEU intervenes within proceedings initiated by a farmer who had been fined for planting GM corn (known as MON 810) in Friuli Venezia Giulia (FVG, an Italian autonomous region), in breach of regional law no. 5/2011, which prohibits the cultivation of GM corn crop throughout all its territory “to avoid the unintended presence of GMOs in conventional and organic crops”. The farmer opposed this sanction before the Italian Court, which, considering that the object of the dispute is the prohibition to cultivate MON 810 corn throughout FVG, questioned whether this prohibition complies with the Directive read in the light of the Regulation and the Recommendation.
The Italian court referred several questions for a preliminary ruling to the CJEU, including whether the regional ban complies with European legislation. The CJEU underlined that national prohibition measures adopted according to Art. 26b of the Directive cannot be justified by the protection of health or environment, as those are the objectives pursued by the authorisation process put in place for the release of GMO subject to a safety evaluation. Those national measures aim to ensure a choice for EU consumers and breeders between GMO crops on the one hand, and conventional and biological crops on the other hand. They must also be necessary and proportionate to achieve this objective. The case was referred back to the Italian court, which will have to assess whether the regional law is justified by those objectives and whether it is necessary and proportionate to such objectives. The CJEU did indicate some factors that the Italian court must take into account, including (i) the admixture threshold between GM and non-GM crops to be achieved and (ii) the likelihood of admixture between GM maize and conventional and organic maize. In his assessment, the judge should in particular consider the actual economic implications of the presence of GMOs in other products, the likelihood of admixture and the effectiveness of the methods of separation of cultures in the territory, taking account of regional and local constraints, geographical characteristics and climatic conditions and cultivation methods adopted there. Finally, evidence should be provided that measures other than the exclusion of GMO cultivation throughout all the territory are not enough to achieve a sufficient level of purity in FVG.
With its preliminary opinion, the CJEU confirms that the applicability of Art. 26b Directive, ie a national or regional prohibition against cultivating a GMO authorised at EU level, is not illegal as such. However, this prohibition must be justified to ensure a choice for consumers and breeders between GMO crops and organic and conventional crops. Public health or environmental concerns will not be sufficient to justify such prohibition as these aims are already pursued through the GMO authorization procedures provided for by the Directive and Regulation. The factors set out in the Guidelines to evaluate the validity of such a prohibition should also be applied. Reading between the lines, it seems that the concern of the CJUE is to ensure that the regional prohibition enacted in the FVG region may in its current version be objectively justified and necessary to reach the threshold to apply Art. 26b of the Directive.