On Wednesday 13 September, the European Court of Justice (CJEU) ruled (Case C-111/16) that neither the European Commission nor the member states can adopt emergency measures, such as the ban of genetically modified crops (GMOs), if it is not established that the said product is "evidently" likely to present a serious risk to human health, animal health or the environment.
The CJEU was thus responding to the court of first instance in Udine (Italy) (Tribunale di Udine), which had been asked to conduct criminal trials for people growing MON 810 genetically modified maize despite this crop being banned in Italy. On the basis of studies carried out by two national institutes, the Italian government had indeed adopted a prohibition order in 2013 as an emergency measure applying the principle of precaution. This was despite the contrary opinion of the European Commission, according to which this emergency measure could not be justified from the time that no scientific evidence enabled the safety of MON 810 to be challenged, when its safety has been confirmed by the European Food Safety Authority (EFSA).
The Italian court thus asked the CJEU if (1) emergency measures in the food domain could be adopted on the basis of the principle of precaution, and if (2) on the basis of the same principle, the national authorities could adopt emergency measures to prevent risks to human health that are undetected due to scientific uncertainty on the safety of the product.
The CJEU replied negatively to the first question, saying that neither the Commission nor the member states can adopt emergency measures like the ban on a GMO product if it is not established that this product "is evidently likely to present a serious risk to human health, animal health or the environment", in line with Regulation 1829/2003.
The principle of precaution, which assumes scientific uncertainty as to the existence of a certain risk, can only justify temporary measures for risk management in the field of food in general (Regulation 178/2002). It is not enough for authorising bans for genetically modified products, if the product targeted has already been subject to a scientific assessment before being marketed, the CJEU states.
In addition, on the second question, the CJEU highlights that the member states, at national level, can adopt emergency prevention measures, after notification to the Commission and if the Commission has not taken any measure. They can maintain or renew these measures as long as the Commission has not taken a decision requiring their prolongation, modification or removal. In these circumstances, the legality of such measures is subject to the control of the national courts, the CJEU concludes. (Original version in French by Francesco Gariazzo)