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GM Foods, Risk, Precaution and the Internal Market: Did Both Sides Win the Day in the recent Judgment of the European Court of Justice?

Published online by Cambridge University Press:  06 March 2019

Patrycja Dąbrowska

Extract

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Almost exactly one year after the famous judgments of the Court of First Instance on the precautionary principle, the European Court of Justice (hereinafter “the Court”) has issued a preliminary ruling further exploring this concept. The ruling arose from a national dispute concerning a temporary ban on novel foods produced from genetically modified organisms (hereinafter “GMOs”). This recent Monsanto judgment is the first case in which the Court has directly invoked the precautionary principle regarding Member States’ power to adopt a provisional prohibition on the marketing of GMO-derived novel foods. Simultaneously, the Court lent an ear to the arguments of Monsanto by declaring the validity of the simplified procedure laid down in the novel foods Regulation 258/97 and based on the contentious concept of substantial equivalence. Thus, it seems to have favoured the free circulation in the Community market of novel foodstuffs notwithstanding the presence of residues of genetically modified (hereinafter “GM”) protein, on the condition that there is no risk to human health.

Type
European & International Law
Information
German Law Journal , Volume 5 , Issue 2 , 01 February 2004 , pp. 151 - 166
Copyright
Copyright © 2004 by German Law Journal GbR 

References

1 Case T-13/99 Pfizer Animal Health S.A. v. Council 2002 ECR II-3305 (hereinafter Pfizer); case T-70/99 Alpharma Inc. v. Council 2002 ECR. Cf. also Olivier Segnana, The Precautionary Principle: New Developments in the Case Law of the Court of First Instance, Vol. 3 German Law Journal (GLJ) No. 10 (1 October 2002); Caoimhín MacMaoláin, Using the precautionary principle to protect human health: Pfizer v Council, 28 European Law Review (ELRev.) 723 (2003).Google Scholar

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3 Cf. however a similar case concerning GM maize and the Directive 90/220 on GMO Deliberate Releases C-6/99 Association Greenpeace France and Others v Ministere d l'Agriculture et de la Peche and Others,2000 ECR I-1651 (hereinafter Greenpeace case).Google Scholar

4 Monsanto, para. 84, 110 and 133.Google Scholar

5 Art. 1-3 EC Regulation 258/97 (hereinafter “Regulation 258/97”) on novel foods and novel food ingredients O.J. 1997 L 43/1 as amended by EC Regulation 1829/2003 on genetically modified food and feed O.J. 2003 L 268/1. The latter act replaces Regulation 258/97 with respect to GM food (their authorizations and labelling).Google Scholar

6 Art 5, Regulation 258/97.Google Scholar

7 Bt-11, MON 9 and MON 10 GM maize lines with the increased resistance to pests and tolerance to herbicides.Google Scholar

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11 Monsanto (note 2) – Opinion of AG Alber - hereinafter “AG Opinion”, para. 24.Google Scholar

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13 Art. 12, Regulation 258/97.Google Scholar

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18 Cf. Monsanto (note 2), para. 40, 50 and 86.Google Scholar

19 Monsanto (note 2), para. 41-48.Google Scholar

20 Id., para. 74, 106 and 136.Google Scholar

21 Cf. Art. 1.2 (b) and 3.4, Regulation 258/97.Google Scholar

22 Monsanto (note 2), para. 72-74.Google Scholar

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26 Unfortunately, the Court did not conduct an analysis of the second method for establishing the substantial equivalence of foods, which is provided by Regulation 258/97, namely when it is based upon available and generally recognized scientific evidence. The use of this method could, in theory, enable by-passing of the involvement of any scientific body before novel foods are marketed. This issue was raised by Advocate General in his opinion, cf., AG Opinion, para. 86-87.Google Scholar

27 Monsanto (note 2), para. 81, 84 and 137.Google Scholar

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36 Article 12.1, Regulation 258/97 is worded as follows: „Where a Member State, as a result of new information or reassessment of existing information, has detailed grounds for considering that the use of a food or a food ingredient complying with this regulation endangers human health or the environment, that Member State may either temporarily restrict or suspend the trade in and use of the food or food ingredient in question in its territory. It shall immediately inform the other Member States and the Commission thereof, giving the grounds for its decision“Google Scholar

Even though the text of the Regulation mentions the dangers, both, to human health and the environment, the Court in its analysis concentrated mainly on the first one “risk to public health”.Google Scholar

37 Monsanto (note 2), para. 100.Google Scholar

38 Id., para. 104.Google Scholar

39 Id., para. 102-103.Google Scholar

40 Id., para. 105-106. Already confirmed in case C-192/01, Commission v. Denmark, judgment of 23 September 2003, nyr, para. 49-51 (hereinafter Danish nutrients case).Google Scholar

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47 Id., para. 112; see also Pfizer para. 162.Google Scholar

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61 Cf. for example Pfizer, para. 456, 471.Google Scholar

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63 Cf. generally Grainne de Burca, Proportionality and Subsidiarity as General Principles of Law, in The General principles of EC Law (Bernitz, Ulf, Nergelius, Joakim eds. 2000).Google Scholar

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65 See supra (note 5), Monsanto (note 2), para. 65-68.Google Scholar

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67 Cf. Vos (note 35), 169.Google Scholar

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69 Monsanto (note 2), AG Opinion, para. 135 and 150, cf. Art. 3 (4), Regulation 258/97.Google Scholar

70 Cf. EU postpones controversial GM decision, EUobserver 10 November 2003, at: www.euobserver.com.Google Scholar