Genetic Engineering: Court Ruling Consolidates Precautionary Principle - Brief Article

European Report, March 22, 2000

The European Union Court of Justice has ruled that Member States which have forwarded a dossier to the European Commission with a favourable opinion for placing a genetically-modified organism (GMO) on the market are bound by their opinion and must apply the Commission's decisions, though Community legislation does provide a safeguard clause on the basis of the precautionary principle.

In its ruling on case C-6/99 (Greenpeace France versus the Ministry of Agriculture and Fisheries), published in Luxembourg on March 21, the Court of Justice nevertheless stipulates that Directive 90/220/EEC regulating the marketing of GMOs permits a Member State to overturn authorisation where, subsequent to the adoption of the Commission decision, new information comes to light indicating that a GMO constitutes a risk. Community law provides for a mechanism for assessing the risks to human health and the environment posed by the deliberate release or placing on the market of GMOs.In this case, the Court of Justice received a request for a preliminary ruling from France's Conseil d'Etat concerning the interpretation of article 13, paragraphs 2 and 4 of Council Directive 90/220 on the deliberate release of GMOs into the environment. The Conseil d'Etat asked the Court of Justice to rule on the margin of discretion which a Member State has under the machinery set up by the 1990 Community Directive. On February 5, 1998, the French Government, acting on a favourable decision from the European Commission, authorised the marketing of certain transgenic seed varieties developed by Novartis Seeds SA. However, the Conseil d'Etat suspended application of this decision in September 1998, following an appeal lodged by the environmental organisation Greenpeace. The Conseil d'Etat took the view that the arguments put forward by Greenpeace and other organisations, namely that the French Government's decision breached the precautionary principle as there was no assessment of the impact of GMOs on human health, had considerable force. The Court indicated that the Conseil d'Etat can appeal afresh to the European Court if irregularities occur in the examination of the request for the marketing of Novartis maize. Only a further Court ruling could definitively annul the authorisation procedure for Novartis maize.Precautionary principle.In its ruling, the Court explains that Directive 90/220 provides for several phases of examination by national or EU authorities before consent, valid throughout the EU, being given to the marketing of a GMO. Once the application has been put before the Commission, Community law provides for a period during which the competent national authorities of the other Member States are consulted. The Commission adopts a position only in the case of an objection raised by one of the competent national authorities. The Court considers that, here again, observance of the precautionary principle is assured at that Community stage. The Court points out that the other competent national authorities and, where appropriate, in the event of disagreement, the various committees to which the matter is then submitted (Scientific Committee on Animal Nutrition, the Scientific Committee for Food and the Scientific Committee for Pesticides) have the power to assess any risks.The Court adds that at any time during the procedure, either at the national stage or at the Community stage, the undertaking concerned must immediately inform the competent national authority of any new information enabling a better assessment to be made of the product's risks to human health and the environment. Furthermore, even after authorisation has been given to place a GMO on the market, any competent national authority having justifiable reasons for considering that the product constitutes a risk may restrict or prohibit use of the product on its territory and must inform the Commission that it has taken this step.Moreover, where a national court finds possible irregularities in the conduct of the examination of an application to place a product on the market such as to call in question the legality of forwarding the dossier to the Commission with a favourable opinion, that national court must refer the matter to the Court of Justice. The Court of Justice alone has competence to rule on the legality of a Community act. If there proves to have been an irregularity in the procedure at the national level, the Court could annul the Community Decision which led to national consent being given.