European Battleground for Genetically-Modified Organisms (GMOs) - Further News

Profession:Herbert Smith

It has been a busy day for the European Court of Justice, as no less than three cases relating to the marketing/use of GMOs are reported today.

Failure to implement Directive on the contained use of genetically modified micro-organisms

In Cases C-333/01 and C-436/01, the European Court has ruled that the failure by Spain and Belgium, respectively, to adopt laws to implement Directive 98/91/EC on the contained use of genetically-modified micro-organisms is a breach of Community law. The Commission brought enforcement action under Article 226 EC for a declaration that each Member State had failed to fulfil its obligations under the Directive. This may open up the potential for possible claims for damages by private persons against these respective Member States.

This is an interesting development to the moratorium maintained by a number of Member States (including these two) against the commercialisation/approval of GMOs. It indicates that the Commission is prepared to take a firm line with Member States blatantly flouting Community law. It remains to be seen whether the Commission would consider taking enforcement action against Member States holding off from approving new GMOs, until the proposed directive on the traceability and labelling of products containing GMOs is approved. However, it may yet do so. This is especially interesting at present, given that the US remains keen to take WTO enforcement proceedings against the EU for not lifting the moratorium against GMOs.

The legality of provisional measures to restrict the marketing/use of GM products

In another case pending before the European Court (C-236/01), the Italian courts have sought guidance on issues concerning the simplified approach for approval of GMOs, after a challenge in the Italian courts by Monsanto, Syngenta and Pioneer to the legality of an Italian Decree suspending the marketing/use of products derived from various GM maize lines.

In 1997 and 1998 the biotech companies placed on the market under the "simplified procedure" foods (flour), derived from GM maize. The competent United Kingdom food authority had previously certified that the products in question were substantially equivalent to traditional foods. The Italian Republic, however, had doubts as to the absolute safety of the products and imposed a provisional prohibition on the marketing/use of products derived from the maize lines. Monsanto and the others challenged the relevant Italian Decree, on the...

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