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GM bans lawful only if clear health risk: EU Court adviser

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GM bans lawful only if clear health risk: EU Court adviser

Maize - Photo © Rebel - Fotolia

(LUXEMBOURG) - EU states are justified in banning genetically modified food and feed only if they can establish a clear, urgent and serious risk to health and the environment, the top EU Court's adviser said on Thursday.

In his Opinion, the European Court of Justice's Advocate General Bobek referred to an EU Commission authorization in 1998 of the placing on the market of genetically modified maize MON 810. In its decision, the Commission referred to the opinion of the Scientific Committee which stated that there was no reason to believe that that product would have any adverse effects on human health or the environment.

In 2013, the Italian Government asked the Commission to adopt emergency measures to ban the cultivation of maize MON 810 in the light of scientific studies carried out by two Italian research institutes. On the basis of a scientific opinion issued by the European Food Safety Authority (EFSA), the Commission concluded that there was no new science-based evidence to support the requested emergency measures and to invalidate its previous conclusions about the safety of maize MON 810.

Despite this, in 2013 the Italian Government adopted a ministerial decree prohibiting the cultivation of MON 810 on Italian territory.

In 2014, Mr Giorgio Fidenato and others grew maize MON 810 in breach of the ministerial decree, for which they were later prosecuted.

In the context of criminal proceedings, the District Court of Udine asked the EU Court of Justice whether emergency measures may be taken on the basis of the precautionary principle.

In his opinion, Advocate General Michal Bobek proposes that the Court should conclude that Member States can adopt emergency measures concerning genetically modified food and feed but only if they can establish, in addition to urgency, the existence of a situation which is likely to constitute a clear and serious risk to human health, animal health and the environment, as set out in Article 34 of the EU Regulation on genetically modified food and feed.

Article 34 is, in the Advocate General's view, a concrete articulation of the precautionary principle in the specific context of genetically modified food and feed in a situation of urgency (61). The precautionary principle laid down in food law3 allows Member States to adopt emergency measures in order to avert risks to human health that have not yet been fully identified or understood because of scientific uncertainty.

However, Mr. Bobek considers that this general principle does not alter the conditions clearly set out in the more specific Article 34 for several reasons. First, the principle of legality, which is even more relevant when Member States impose criminal sanctions, requires that public authorities act only within the confines of what was stated by the law. Second, a regulation is required to be interpreted and applied uniformly in all Member States. Third, the precautionary principle and Article 34 operate in different contexts since Article 34, unlike the precautionary principle, is specifically focused on genetically modified products, which have already gone through a full scientific assessment before being placed on the market.

The Advocate General adds that this conclusion is not changed by the fact that in 2015 a Directive considerably changed the legal framework applying to genetically modified organisms in the Union and that in 2016 the Commission, on the basis of that Directive, banned maize MON 810 in 19 Member States, including Italy. The Advocate General remarks that the Directive entered into force after the Italian decree and focuses on different grounds.

It should be noted that, while the Advocate General's Opinion is not binding on the Court of Justice, it is rare for it to be overturned.

Advocate General's Opinion in Case C-111/16 Giorgio Fidenato and others

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