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Bans on GM crops only permitted in the event of ‘obvious risk’

ECJ: French ban on MON810 maize has no legal basis

New reasons need to be found to justify the ban on cultivating genetically modified MON 810 Bt maize in France. The European Court of Justice (ECJ) decided on 8 September that the French government had an obligation to consult with the European Commission. The judges also emphasized the fact that a cultivation ban can be adopted only if “the situation is likely to constitute a clear and serious risk to human health, animal health or the environment”. However, national courts are responsible for checking the legality of national cultivation bans.

In its ruling of 8 September, the European Court of Justice sets narrow limits for national cultivation bans. Member states are required to provide evidence of the existence of a situation “which is likely to constitute a clear and serious risk to human health, animal health or the environment”.
Photo: European Court of Justice

In 2008, the French government banned the cultivation of MON810 maize, invoking a safeguard clause in Directive 2001/18 on the deliberate release into the environment of GMOs, according to which a member state can ban cultivation of a GMO on its own initiative provided new findings about a potential risk to humans or the environment are present.

Monsanto and a number of other seed producers brought actions against the prohibition measures before the French Conseil d’Etat (Council of State), which referred the case to the European Court of Justice (ECJ) to clarify the legal situation.

In its ruling, the ECJ points out that genetically modified MON810 maize falls within the scope of Regulation 1829/2003 on genetically modified food and feed. The Regulation states that in the event of new findings emerging about potential risks of GMOs, the European Commission should be informed as quickly as possible, and that the Commission and the Council are ultimately solely responsible for the assessment and management of a serious and obvious risk. Their decision is binding on all member states. Only if the European Commission fails to act, does an individual member state have the right to adopt prohibition measures.

The court also established that a cultivation ban is permissible only if cultivation could pose a serious risk that would clearly harm human and animal health or the environment. Such measures may be adopted only “if they are based on a risk assessment which is as complete as possible in view of the particular circumstances of the individual case, which indicate that measures are necessary.”

The French environment minister announced her intention of keeping the ban and of invoking the safeguard clause again. The ECJ did not comment on whether other national cultivation bans for MON810, including the one in force in Germany, are legitimate. According to the judges in Luxembourg, the national courts need to assess in each case, whether the bans contradict the conditions set down by the ECJ. The French ban was adopted on the basis of legal provisions that do not permit such measures.

A spokesman for Germany’s Federal Ministry of Food, Agriculture and Consumer Protection said that the ruling did not affect the German MON810 ban. However, the narrow limits imposed by the ECJ for national cultivation bans could place a question mark over the German ban as well.

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