May 5, 2009

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Monsanto’s urgent appeal rejected

Braunschweig administrative court upholds MON810 ban

The ban on cultivating genetically modified Bt maize line MON810, which was issued in April, remains in force. The Braunschweig administrative court has rejected an urgent appeal submitted by Monsanto against the ban. The justification states that although there are no confirmed scientific findings showing risk to the environment from MON810, the presence of indications is sufficient. Monsanto is now considering other courses of legal action.

Damage caused by the European corn borer chewing the stem of a maize plant. As a result of a gene transferred from the bacterium Bacillus Thuringiensis (Bt) , the genetically modified Bt maize line MON810 produces a protein that kills the caterpillars of the European corn borer.

On 14 April 2009 Germany’s Minister of Agriculture, Ilse Aigner, banned the cultivation of MON810 Bt maize in Germany with immediate effect. The manufacturer, Monsanto, filed an urgent appeal against the ban in order to be able to sow MON810 this spring. The appeal has now been rejected by the Braunschweig administrative court.

Under EU law, national cultivation bans relating to genetically modified crops that have been authorised at EU level are admissible only if there are new scientific findings that would indicate potential risks to the environment. The ministry’s justification for the ban lists a number of older studies that have already been assessed by the European Food Safety Authority (EFSA). The EFSA experts did not find any indication of environmental risks from MON810 in any of them. Only two of the studies cited in the ban documents are recent. They claim to show that MON810 poses a risk to two-spotted ladybirds and water-fleas, but are scientifically controversial.

The reasons given for the judgement state that there do not need to be confirmed scientific findings available in order for a temporary cultivation ban to be valid. All that was needed was for there to be new or additional indications that humans or animals might be at risk. Whether the assumptions stand up to scientific scrutiny did not affect the legality of the cultivation ban, but was something for the Commission or the Council to decide.

The court cites case-law of the European Court of Justice, which states that a lack of scientific proof of a risk is no reason not to take all steps to prevent the risk occurring. In the event of uncertainties regarding the existence or scale of risks, safety precautions could be taken without waiting for the risks to be fully investigated.

It was not the court’s job to replace the risk assessment on which the ban was based with an assessment of its own. The relevant authority had some discretion at this level. The court’s only role was to assess whether the authority had analysed the risks sufficiently and assessed them objectively. In the court’s opinion, this was the case.

The court was obliged to come to a preliminary decision in response to the urgent appeal. The final decision will be taken during the main court proceedings, which are still pending. Monsanto announced that it would be considering further legal action.