EU Court Adviser Sets High Bar for States’ GMO Bans

(CN) – An EU high court adviser on Thursday gave member states a very limited go-ahead to ban the cultivation of genetically modified crops, but only if they can prove the crops are “a serious and evident risk likely to endanger health and the environment.”

European Court of Justice Advocate General Michal Bobek’s advisory opinion is another marker in the long fight over genetically modified crops in the EU. In 1998, the European Commission authorized the cultivation of MON 810, a genetically modified maize, basing its decision on findings by EU scientists that there was no reason to believe the crop would have adverse effects on health or the environment.

But in 2013, the Italian government asked the commission to ban MON 810 in light of research done by two research institutes there. The commission refused, noting more recent studies done by the European Food Safety Authority that found no cause for concern.

The Italian government forged ahead and banned the cultivation of MON 810, and prosecuted farmers who grew it despite the ban.

Some of those prosecuted appealed, leading an Italian court to ask the European Court of Justice whether something known as the “precautionary principle” – which an increasingly at-risk society can rely on to protect itself from the unintended consequences of rapid scientific progress and new technologies – justified Italy’s emergency ban on the GMO.

In a thoughtful 10-page opinion, Bobek noted up front that EU law tailors the precautionary principle more narrowly – and one of two regulations on GMOs doesn’t mention it at all. The one that does, which covers genetically modified food, requires a full assessment of the product in question that reveals “scientific uncertainty regarding the possible harmful effects on health of a food,” Bobek wrote.

So while in theory member states are allowed to pass emergency national legislation on the basis of the precautionary principle, it’s much more difficult to do so for GMO products because EU law requires them to be rigorously vetted before they’re even allowed on the market. Scientific understanding of the crops would have to change in order for member states to pass emergency bans, Bobek said.

The adviser also noted that since Italy’s ban on MON 810, two events have changed the GMO landscape in Europe: in 2015, EU lawmakers made it possible for member states to restrict or ban GMO cultivation, and in 2016 – giving in to the demands of Italy and 18 other states – the commission banned MON 810 in those territories.

But Bobek said neither event affects the case at hand, since they happened after Italy initiated criminal proceedings against the scofflaw farmers.

Bobek’s opinion is not binding on the Court of Justice, which has begun its deliberations of the case.

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