Brussels, 08/09/2011 (Agence Europe) - Provisional measures adopted by France in 2007 and 2008 banning the cultivation, use and marketing of genetically modified maize MON 810 (see EUROPE 9577) as “emergency measures” should have been adopted on the basis of Regulation 1829/2003 on genetically modified food and feed and not of the safeguard clause provided for in Directive 2001/18/EC on the deliberate release into the environment of genetically modified organisms (GMOs). That being so, the French government could not adopt such measures directly and on its own initiative and as provided for in the safeguard clause in the directive. Rather it should have “officially” informed the Commission of its intention to take such measures and, in the event of the Commission's failing to act, informed the Commission and the other member states “as quickly as possible” of the content of the interim measures, demonstrating by means of “as complete as possible” a risk assessment, not only of the urgency of the measures, but also the existence of a situation which is likely to “constitute a clear and serious risk to human health, animal health or the environment”.
This is the substance of the ruling delivered by the Court of Justice of the EU on 8 September in response to preliminary questions put by the French Council of State which is hearing several actions lodged by US group Monsanto, which produces MON 810, by the Association générale des producteurs de maïs and a number of seed producers.
The question of the legality of the decisions by the French authorities, based as they were on the safeguard clause contained in Directive 2001/18/EEC, arose within these actions. In 1998, the European Commission authorised the placing on the market of genetically modified MON 810 maize, on the basis of Directive 90/220/EEC on the deliberate release into the environment of GMOs, which was then in force. This directive has since been replaced by Directive 2001/18/EEC, mentioned above. However, it was on the basis of Regulation 1829/2003 (on genetically modified food and feed) that Monsanto gave notice to the Commission, in 2004, of MON 810 as an “existing product” already being legally marketed at the time of the adoption of the regulation and requested the renewal of its marketing authorisation in May 2007.
In taking its decisions, the French state ought to have satisfied the substantive conditions set out in Regulation 1829/2003 and complied with this regulation's procedural conditions set out in Regulation 178/2002, the former regulation referring to the latter on this point.
The French Council of State will now have to decide on the legality of the actions of the French authorities. (F.G./transl.rt)