The Court of Justice of the European Union (‘CJEU’), in its ruling of 7 July 2022 given on case C-24/21, confirmed that Member States (and their territorial entities with legislative powers) may restrict or prohibit by law the cultivation of approved crops of Genetically Modified Organisms (‘GMOs’), but recalled that specific conditions must be met, as set forth in Directive 2001/18/EC (on the deliberate release into the environment of genetically modified organisms) and Regulation (EC) No. 1829/2003 (on genetically modified food and feed). The Court’s ruling is based on the text of Directive 2001/18/EC in force prior to the amendments introduced by Directive (EU) 2015/412, which added a new Article 26b (‘Transitional Measures’), establishing a procedure through which Member States may request that the geographical scope of a GMO notification/application be submitted, or an authorization granted be adjusted to exclude all or part of their territory from cultivation.

The dispute arose from the action of a farmer, Mr. ‘PH’, who deliberately violated the law No. 5/2011 of Friuli Venezia Giulia (an Italian autonomous region), prohibiting the cultivation of the authorized crop of MON810 GMO maize and was therefore fined by local authorities. The purpose of the regional law was to prevent and avoid cross-contamination between different types of crops: GMO, conventional, and organic.

PH filed an opposition against the sanction with the Territorial Court, which halted the proceedings to request a preliminary ruling from the Court of Justice on the correct interpretation of the EU regulatory framework on GMOs.

The Court recalled Article 26-bis(1) of Directive 2001/18/EC, which states, “Member States may take appropriate measures to avoid the unintended presence of GMOs in other products”.

Therefore, Member States may only adopt preventive measures to avoid the unintended presence of GMOs in other products, thus ensuring that farmers and consumers have a choice between organic, conventional, and GMO production, as pointed out in the Commission Recommendation of 13 July 2010. On the other hand, these measures cannot be justified by the need to protect human health or the environment, since their protection is already achieved by the risk assessment carried out according to Directive 2001/18/EC and Regulation No 1829/2003 (see paragraph 47 of the ruling).

Such measures must be proportionate insofar as they must minimize their restrictive effects to what is necessary to achieve their purpose.

It is therefore up to the national court of Friuli Venezia Giulia to determine whether the regional law complies with the above principles and to analyze the specific conditions of the area affected by such preventive measures, to assess whether they are necessary and proportionate to avoid cross-contamination between GMOs and conventional/biological crops. The local court should base its decision on the actual degree of contamination and the likelihood of further contamination, considering specific geographic factors and the economic consequences (in terms of losses) for producers if a higher degree of contamination occurs. The decision is expected in the coming months, but the tracks are laid and there is no room for prejudices about GMO cultivation: everything must have a reasonable and proven justification.

As already mentioned, Directive (EU) 2015/412 amended Directive 2001/18/EC by introducing a provision [Article 26(b)] facilitating how Member States may exclude all or part of their territory from the cultivation of GMOs, either by requiring such exclusion prior to the granting of authorization or by adopting measures after that moment and, in the latter case, only when special needs are demonstrated (e.g., environmental policy objectives, socio-economic impacts, etc.), provided that the measures are proportionate and reasonable. Thus, whereas the provision cited in the Court ruling under review, which is still in force, only concerns the need to avoid the unintended presence of GMOs, the new article offers a broader range of justifications.