In December 2014, nine NGOs challenged the transposition of the EU Directive 2001/18/EC – on the deliberate release of GMOs into the environment – by the French government as regards the exemption of varieties obtained from mutagenesis. Focusing on herbicide tolerant varieties in rapeseed and sunflower, and considering those products as ‘hidden GMOs’, they claimed no assessment was carried out prior to marketing. Consequently, they asked the Prime Minister to repeal the corresponding part of the French law and to adopt a moratorium on sales and cultivation whilst evaluating the risks as legally required by the said Directive.
In March 2015, as no answer was given, the same NGOs brought the matter before the Conseil d’Etat which called the Ministry of Agriculture to testify – a rather rare procedure in this Court.
In September 2016, in her public reading, the rapporteur demonstrated the French transposition of Directive 2001/18/EC was not to be questioned. Bridging historical mutagenesis and those of ‘New Plant Breeding Techniques’ which lead to mutations, she raised awareness of the Council that those techniques were not in the scope of the legislator when the directive was adopted. She also focused on the similarity of risks that are usually attributed to GMOs: use of herbicides (‘main objective of in vitro mutagenesis in field crops’), gene flow and unintended effects. In that respect, NPBTs ‘dim differences between mutagenesis and transgenesis’, the precautionary principle could be endangered, as being adopted by the Treaty on the Functioning of the EU after the said Directive entered into implementation.
As a consequence of those recommendations and citing ‘a serious difficulty in interpreting European Union law’, the Conseil d’Etat referred four interlocutory questions to the Court of Justice of the European Union (ECJ) on 3 October 2016:
- Are organisms obtained from mutagenesis all exempted from the scope of Directive 2001/18/CE, including those which proceed from genetic engineering? Consequently, are the latter exempted from precautionary measures, impact assessment and traceability?
- Is the definition of GMO consistent between Directive 2002/53/CE – on the common catalogue of varieties of agricultural plant species – and Directive 2001/18/CE? In that sense, are scopes of both directives similar and are varieties obtained by mutagenesis exempted from requirements for acceptance of GM varieties in the catalogue?
- Is the exemption of mutagenesis from the scope of Directive 2001/18/CE to be considered as a full harmonization measure between EU Member-States or do Member States retain a degree of discretion to determine the provisions applicable to products obtained from mutagenesis?
- Are the exemption provisions of Directive 2001/18/CE still valid as regards the precautionary principle taking into account the evolution of genetic engineering processes, the existence of varieties obtained from those techniques and the scientific uncertainty of impacts for environment and human and animal health?”
Requests to the ECJ for preliminary rulings are a common instrument regularly used by national courts that have to interpret or assess the transposition of national laws. Here, the responsible Court asks advice from the ECJ on how to interpret the basic act (the EU Directive 2001/18/EC) in order to properly assess and rule on the French transposition.
In this case, this is not a classical adversarial procedure with the two parties pleading. Only the parties to the underlying national procedure (in casu the 9 anti-GM NGOs and the French government) as well as any Member State and EU institutions were allowed to submit written observations to the ECJ. So did Austria, Greece, the Netherlands, Sweden and the UK, together with the EU Council, Parliament and Commission.
The ECJ decided to listen to the parties and contributing states and institutions during a hearing in early October 2017. The advocate general made his opinion public on Jan. 18, 2018:
1 He stated that organisms obtained by mutagenesis are, in principle, exempted from the obligations in the Directive provided that they do not involve the use of recombinant nucleic acid molecules or GMOs. The mutagenesis exemption applies to all mutagenesis techniques, both to those known at the time of adoption of the Directive (2001) and those considered new in 2018.
- Directive 2002/53/EC on the common catalogue of varieties of agricultural plant species is to be interpreted as exempting varieties obtained by mutagenesis from the specific obligations laid down therein for the inclusion of genetically modified varieties in the common catalogue of agricultural plant species.
- Member States are free to adopt measures regulating such organisms provided they respect overarching principles of EU law.
- The provisions of Directive 2001/18/CE for exempting specific techniques from its scope are still valid.
This opinion is only advisory and does not bind the Court in its final decision. However, it is an important step on the way to a ruling and advocates’ opinions are generally followed by the Court. Experience shows that such cases generally take between 15 to 24 months before the ECJ renders its decision. It will be then addressed to the national court that referred the questions. In casu, the Conseil d’Etat will then provide its national decision on the basis of this input.
This case goes far beyond the national borders as it will give guidance to the EU Commission on the interpretation…
Nevertheless, it is very clear that the case goes far beyond the national borders: the ECJ ruling will give guidance to the EU Commission for interpretation of Directive 2001/18/EC as regards the latest plant breeding methods. Importantly, the ECJ often takes its liberty to either solely address the concrete addressed questions or approach the subject in a way that allows for a more general interpretation beyond those. It is therefore unclear whether the ECJ in the end will provide conclusive guidance that may be used to clarify the regulatory status of the latest breeding methods
Editor’s Note: Emmanuel Lesprit is Director of Regulation & Innovation Affairs at the French Seed Union (Union Française des Semenciers – UFS)