Agriculture, Court of Justice: EU countries may ban cultivation of GMOs on their territory

Brussels – Member States may ban the cultivation of genetically modified organisms (GMOs) on their territory. Under certain conditions. This was established by the Court of Justice of the European Union, confirming the legitimacy of both the procedure allowing the European Commission, at the request of a Member State, to restrict the area authorised for the cultivation of a GMO—with the tacit consent of the authorisation holder—and the ban on the cultivation of MON 810 maize introduced in Italy on the basis of this same procedure.

 The ruling concerns the appeal of an Italian farmer who had planted genetically modified maize (MON 810). This crop is prohibited in Italy. As a result, the Italian authorities ordered the farmer to destroy the plants and imposed fines totalling €50,000. The ban on planting MON 810 was adopted under a procedure established by EU law in 2015, when the EU legislator set out a common regime for when Member States may restrict or prohibit the cultivation of GMOs on their territory. The principle was that these choices should be made at the Member State level. In that situation, the legislator provided that, when a Member State requests a change to the geographical scope of the authorisation for the cultivation of a GMO, without giving any particular justification, and the authorisation holder does not object within 30 days, the European Commission shall take note of the change, which shall become immediately applicable. The practical consequence is that the cultivation of the GMO in question is prohibited in territories where the amended authorisation does not apply. In that context, several Member States have restricted or prohibited the cultivation of MON 810 maize in all or part of their territory. 

Faced with the decisions taken by the Italian authorities against him, the farmer appealed to the national courts, which in turn referred the matter to the Court of Justice of the EU to ask it to verify the validity of the provisions governing the procedure and compliance with the free movement of goods, freedom of enterprise and the principles of non-discrimination and proportionality. In its judgment, the Court takes into account that a ban on the cultivation of a GMO, such as that applicable in Italy, is adopted with the tacit consent of the holder of the GMO authorisation. Furthermore, it emphasises that the legislator has a wide margin of discretion to legislate in areas such as the cultivation of GMOs, which involve complex assessments and have political, economic, and social repercussions at both the national and local levels. In that context, the Court considers that the procedure provided for by EU law since 2015, which allows Member States, in accordance with the principle of subsidiarity, to obtain a ban on the cultivation of GMOs on their territory without any particular justification, if the authorisation holder does not object, is not contrary to EU law. 

In particular, the judges in Luxembourg state that the mechanism does not violate the principle of proportionality or create discrimination between farmers in different Member States. The ban on cultivating a GMO does not constitute a violation of the free movement of goods either, as it does not prevent companies from importing products containing that GMO or consumers from purchasing them. Finally, the Court finds that the obligation to justify the restriction or prohibition of the cultivation of a GMO applies only if the authorisation holder objects. As regards the specific case of the Italian farmer, the tacit consent of the authorisation holder precludes this possibility and any interference with the freedom to conduct business.