The Court decides that Member States which have forwarded a dossier to the Commission with a favourable opinion for placing a GMO on the market are bound by their opinion and must apply the Commission's decisions. However, new information indicating that a GMO constitutes a risk for human health and the environment allows the procedure for placing a GMO on the market to be stopped pending a fresh Commission decision
Under the French legislation in force, a decree of the French Minister for Agriculture, Fisheries and Food of 5 February 1998 authorises seeds from certain genetically modified varieties of maize produced by the company Novartis Seeds SA to be placed on the market.
Community law provides for a mechanism for assessing the risks to human health and the environment posed by the deliberate release or placing on the market of genetically modified organisms (GMOs).
The relevant Community directive provides for several stages whereby the national authorities or the Community authorities examine any proposed release of a GMO before any placing on the market receives consent which would be valid throughout the Community.
Greenpeace France and other associations applied to the French Conseil d'État to annul the French decree of 5 February 1998. The Conseil d'État took the view that the arguments put forward by those associations had considerable force such as to justify annulment of the decree, which in its view might entail serious consequences, and suspended its application.
Essentially, the Conseil d'État asked the Court of Justice to rule on the margin of discretion which a Member State has under the machinery set up by the Community directive.
The Court of Justice analyses the various stages of the directive's machinery having regard to the precautionary principle
If the competent national authorities which receive an application to place a GMO on the market do not reject the application, they must forward the dossier to the Commission after issuing a favourable opinion. In the Court's view, at that stage, the national authorities which so forward a matter to the Commission have every possibility of assessing the risks. The applicant undertaking must provide all information regarding the risks which the product constitutes for human health or the environment.
Once the application has been put before the Commission, Community law provides for a period during which the competent national authorities of the other Member States are consulted. The Commission adopts a position only in the case of an objection raised by one of the competent national authorities.
The Court considers that, here again, observance of the precautionary principle is assured at that Community stage. The Court points out that the other competent national authorities and, where appropriate, in the event of disagreement, the various committees to which the matter is then submitted (Scientific Committee on Animal Nutrition, the Scientific Committee for Food and the Scientific Committee for Pesticides) have the power to assess any risks.
The Court adds that at any time during the procedure, either at the national stage or at the Community stage, the undertaking concerned must immediately inform the competent national authority of any new information enabling a better assessment to be made of the product's risks to human health and the environment. Furthermore, even after authorisation has been given to place a GMO on the market, any competent national authority having justifiable reasons for considering that the product constitutes a risk may restrict or prohibit use of the product on its territory and must inform the Commission that it has taken this step.
The Court therefore considers that a Member State which has forwarded an application with a favourable opinion must authorise the GMO to be placed on the market after the Commission has adopted a favourable decision. Nevertheless, the Court considers that the system of protection set up by the directive means that the Member State concerned may not give its consent to the placing of a product on the market if new information reveals a risk after the Commission has adopted its decision. In that case, it must inform the Commission which must then adopt a fresh decision in the light of that new information.
Secondly, where a national court finds possible irregularities in the conduct of the examination of an application to place a product on the market such as to call in question the legality of forwarding the dossier to the Commission with a favourable opinion, that national court must refer the matter to the Court of Justice. The Court of Justice alone has competence to rule on the legality of a Community act. If there proves to have been an irregularity in the procedure at the national level, the Court could annul the Community decision which led to national consent being given.
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