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Court of Justice of the European Union; France: Preliminary Ruling Finds France’s Ban on Genetically Modified Corn Illegal

(Apr. 4, 2011) On February 3, 2010, the Conseil d'Etat, France's Supreme Court for administrative matters, referred several questions on interpretation of European Union law regarding genetically modified organisms to the European Court of Justice (ECJ) for a preliminary ruling. Proceedings regarding a ban on MON810 Genetically Modified Corn are pending before the Conseil d'Etat between Monsanto SAS and others and the French Ministry of Agriculture. (References for a Preliminary Ruling from the Conseil d'État (France) Lodged on 3 February 2010 in Cases — Monsanto SAS [et al.], OFFICIAL JOURNAL OF THE EUROPEAN UNION [OJ] C 100/26 (Apr. 17, 2010), EUR-LEX website.)

France had banned the cultivation of MON810 Genetically Modified Corn in February 2008, based on the safeguard clause contained in article 23 of Directive 2001/18/EC of the European Parliament and of the Council of the European Union of March 12, 2001 on the Deliberate Release into the Environment of Genetically Modified Organisms (Directive 2001/18/EC (Mar. 12, 2001), EUR-LEX website). Article 23 provides:

1. Where a Member State, as a result of new or additional information made available since the date of the consent and affecting the environmental risk assessment or reassessment of existing information on the basis of new or additional scientific knowledge, has detailed grounds for considering that a GMO as or in a product which has been properly notified and has received written consent under this Directive constitutes a risk to human health or the environment, that Member State may provisionally restrict or prohibit the use and/or sale of that GMO as or in a product on its territory. […]

The Member State shall immediately inform the Commission and the other Member States of actions taken under this Article and give reasons for its decision … .

2. A decision shall be taken on the matter within 60 days in accordance with the procedure laid down in Article 30(2). … . (Id.)

On March 22, 2011, the ECJ Advocate General, Paolo Mengozzi, found that since MON810 had already been authorized in the EU in 1998, France could not suspend its cultivation of the GM corn under article 23 of Directive 2001/18/EC (Conclusions de l'Avocat Général M. Paolo Mengozzi présentées le 22 mars 2011, Affaires jointes C-58/10 à C-68/10, Monsanto SAS et autres [in French], available at EUROPAFORUM.LU.)

The ECJ further stated that interim protective measures could only be adopted by a state in case of a serious risk to human and/or animal health or to the environment, if the European Commission failed to take emergency action after being informed by a state of the need to take such measures, as provided by article 34 of Regulation EC 1829/2003 of the European Parliament and of the Council of September 22, 2003, on Genetically Modified Food and Feed. (Regulation (EC) No. 1829/2003, OJ L 268/1 (2003), EUR-LEX website.)

The opinion of the Advocate General is not binding on the court, but in general preliminary rulings are followed by French courts.