The Court of Justice of the European Union rules on the ban on GMOs

The Court of Justice of the European Union (“CJEU”), in its judgment of July 7, 2022 in case C-24/21, confirmed that Member States (and their territorial entities with legislative powers) may restrict or prohibit by law the cultivation of approved crops of genetically modified organisms (“GMOs”), but recalled that specific conditions must be met, as set out in Directive 2001/18/EC (on the deliberate release into environment of genetically modified organisms) and Regulation (EC) No 1829/2003 (on genetically modified food and feed). The Court’s judgment is based on the text of Directive 2001/18/EC in force before the amendments introduced by Directive (EU) 2015/412, which added a new Article 26b (“Transitional measures”), establishing a procedure whereby Member States States may request that the geographical scope of a GMO notification/application be submitted, or that an authorization granted be adjusted to exclude all or part of their territory from cultivation.

The dispute arose from the action of a farmer, Mr. ‘PH’, who deliberately violated Law No. 5/2011 of Friuli Venezia Giulia (an Italian autonomous region), prohibiting the cultivation of the authorized crop corn GMO MON810 and was therefore fined by the local authorities. The objective of the regional law was to prevent and avoid cross-contamination between different types of crops: GMOs, conventional and organic.

PH filed an objection against the sanction with the territorial court, which suspended the proceedings to request a preliminary ruling from the Court of Justice on the correct interpretation of the EU regulatory framework on GMOs.

The Court recalled Article 26-bis, paragraph 1, of Directive 2001/18/EC, which stipulates, “Member States may take appropriate measures to avoid the unintended presence of GMOs in other products”.

Therefore, Member States can only adopt preventive measures to avoid the unintended presence of GMOs in other products, thereby ensuring that farmers and consumers have a choice between organic, conventional and GMO production, as set out in the Commission Recommendation of 13 July 2010. On the other hand, these measures cannot be justified by the need to protect human health or the environment, since their protection is already ensured by the risk assessment carried out in accordance with the 2001 Directive /18/EC and Regulation No. 1829/2003 (see paragraph 47 of the judgment).

These measures must be proportionate insofar as they must reduce their restrictive effects to what is necessary to achieve their objective.

It is therefore up to the National Court of Friuli Venezia Giulia to determine whether the regional law complies with the above principles and to analyze the specific conditions of the area concerned by such preventive measures, to assess whether they are necessary and proportionate. to avoid contamination between GMOs and conventional/organic crops. The local court must base its decision on the actual degree of contamination and the likelihood of further contamination, taking into account specific geographical factors and the economic consequences (in terms of losses) for producers if a higher degree of contamination occurs. product. The decision is expected in the coming months, but the tracks have been drawn and there is no room for prejudice on the cultivation of GMOs: everything must have a reasonable and proven justification.

As already mentioned, Directive (EU) 2015/412 amended Directive 2001/18/EC by introducing a provision [Article 26(b)] facilitate the way in which Member States can exclude all or part of their territory from the cultivation of GMOs, either by requiring such exclusion before the authorization is granted or by adopting measures after that moment and, in the latter cases, only when particular needs are demonstrated (environmental policy objectives, socio-economic impacts, etc.), provided that the measures are proportionate and reasonable. Thus, while the provision quoted in the judgment of the Court in question, still in force, concerns only the need to avoid the unintended presence of GMOs, the new article offers a wider range of justifications.

Elna M. Lemons