October 10, 2011


EU high court denounces France's failure in GM corn rule



The European Union's highest court faulted a French ban on growing GM corn for procedural reasons as France failed to invoke it under the appropriate rule.


In an opinion issued September 8 to a French national court, the EU Court of Justice (ECJ) found that France had failed to invoke the ban or the "safeguard clause" on the cultivation of MON 810 corn under the EU statute which formed the legal basis for its authorization. It did not rule on the substance of the ban's scientific justification.


MON 810 is a genetically modified organism (GMO) developed by the US firm Monsanto. Monsanto and others, including GMO developer Pioneer and a group of French corn growers, sued the government of France for imposing the ban in France's the Council of State.


In considering the case, the French court requested an opinion from the ECJ on whether France used the correct legal basis to impose its cultivation ban, and if so, whether it had followed the correct procedures in doing so.


The French court still has to decide whether it agrees with the ECJ, whose opinion is not binding. The French court could still decide that the French ban is sound, one EU source said. The court's ruling is expected to be handed down about six months from now at the latest, and in the meantime, France will keep its ban in place, the source added.


This is part of the reason why the immediate impact of the ECJ opinion appears to be limited. In addition, the EU Commission does not intend to use the high court's decision as a new justification to demand the repeal of the other bans, according to Commission officials.


That will be up to companies to pursue in national courts, which may take different views of the ECJ opinion, one official said.


Germany, Austria, Greece, Luxembourg and Hungary also have invoked bans on the cultivation of MON 810, with some invoking the same legal basis as France, while others took a different approach, according to a commission official.


In putting its ban on MON 810 cultivation in place in 2007, France invoked the safeguard clause under Directive 2001/18/EC, which governs the release of GMOs into the environment.


But the ECJ ruled that, in fact, France should have used the safeguard clause contained in another law governing GMOs -- Regulation No 1829/2003, which covers GMOs authorized to be sold for food and feed.


This is because Monsanto in 1998 received authorization for MON 810 cultivation in the EU under a law preceding Regulation No 1829/2003. After the Regulation went into effect, Monsanto officially notified MON 810 as an "existing product" on the basis of the Regulation, not the Directive.


A commission official explained that MON 810 cultivation is covered by the Regulation on GMO food and feed because -- in adopting that law -- the commission applied the principle of "one door, one key."


This means that when a company like Monsanto notifies or applies for authorization of a GMO for food, feed and cultivation, it can do so under the process proscribed by just one of the two laws on GMO that are in place. This principle was applied in order to streamline the application process for businesses, the official said.


The French government may have been confused about which law to invoke for its cultivation ban because the Regulation governs GMOs for food and feed, while the Directive governs cultivation, one EU environmental source speculated. Based on their defined scopes, it made sense that France imposed the safeguard under the Directive, he said.


Mark Buckingham, a spokesman for Monsanto Europe, said the company "welcomes" the decision of the ECJ, but would not comment on whether the company would now seek to challenge bans put in place by other EU countries.


Buckingham said that important factors for Monsanto regarding future developments include the next stage of the case where the findings of the ECJ are applied by the French courts and also the reaction of the French government and other stakeholders and policy positions they may develop.


The EU Commission in 2009 pushed for France, Greece, Hungary and Austria to drop their bans, after the EU Food Safety Authority (EFSA) threw out as insufficient the scientific evidence the countries submitted to support them. But the commission faced stiff pushback and has instead put forth a proposal that would allow member states to ban cultivation for reasons other than health and safety.


When France first put the ban in place in 2007, it submitted an assessment to the EFSA finding that MON 810 led to the resistance of corn pests to insecticides, and had long-term negative impacts on soil fauna as well as on Monarch butterflies and honey bees.


The following year, however, EFSA found that the study did not present new scientific evidence that would invalidate an earlier EFSA assessment finding that MON 810 is safe. France held the ban in place anyway.


In its opinion, the ECJ said that if member states do invoke the safeguard clause under Regulation 1829/2003, member states must establish, "in addition to urgency, the existence of a situation which is likely to constitute a clear and serious risk to human health, animal health or the environment."


It added that safeguard measures may only be adopted 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," according to a court press release.

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