PRECAUTIONARY PRINCIPLE NOT A SUFFICIENT GROUND TO RESTRICT THE CULTIVATION OF AUTHORIZED GMO ARGUES CJEU

In the Judgement of 13 September 2017 the legality of an Italian Decree prohibiting the cultivation of an authorized GMO maize was examined. The ruling relates to article 34 of Regulation 1829/2003 on genetically modified food and feed which regulates the adoption of emergency measures by the Commission or alternatively individual member states. The article provides that where it is evident that authorized GMO products are likely to constitute a serious risk to human health, animal health or the environment, measures shall be adopted in accordance with the procedure laid down in the articles 53 and 54 of Regulation 178/2002 (General Food Law Regulation). The latter procedure provides that a member state may adopt interim protective measures where it officially informs the Commission of the need to take emergency measures and the Commission refrains from taking action.

The Court examined whether national interim measures under article 34 Regulation 1829/2003 can be based solely on the precautionary principle. It concluded that member states must observe the substantive condition that the authorized products are likely to constitute a serious risk to human health, human health, animal health or the environment. The existence of a serious risk must be based on scientifically substantiated risk assessment which justifies the adoption of restrictive measures in the given case.

The Judgement restricts the discretion of member states to bar the cultivation of authorized GMOs within their jurisdiction. It provides a clear confirmation that a burden of proof exists for member states. Restrictive interim measures require scientific evidence substantiating a potential and serious risk to human health, animal health or the environment. The Judgement will however not slam the shut door for the cultivation of GMOs in the EU. Somehow contrary to the judgement Directive 2015/412 provides a set of compelling grounds by which EU member states can restrict the cultivation of GMOs on their territory. Though, it requires such restrictions to be in conformity with Union law, reasoned, proportional and non-discriminatory. A new case in the making?

Full text of the ECJ Judgment (C‑111/16) via the following link