France "not entitled to block GMO application"

European Court of Justice advisor says rapporteur countries cannot withhold final consent

EU countries that sponsor an application to market a new genetically modified crop do not have the right to then block commercialisation once the European Commission has given its final authorisation, an advisor to the European Court of Justice said yesterday.

Under the EU's regulatory framework for GMOs, the process of giving marketing consent starts with a request from an individual member state. After the full EU licensing procedure has been completed, this same state must formally complete the process by giving its written consent for EU-wide commercialisation.

A European court judgement was requested by France, which proposed and then gave its written consent for marketing of a Novartis genetically modified maize variety in 1997. Following a legal challenge from Greenpeace, which claimed the consent contravened the country's constitution, the government asked the court to rule whether it would have been legal to refuse the application at its last hurdle.

The advocate general said that a member state could not refuse final consent unilaterally because it was taking a decision on behalf of all EU countries. However, he stressed that states could apply for a national ban on the crop after EU-wide approval if they felt it was necessary on environmental grounds. Luxembourg and Austria have both used the principle to ban the same maize variety.

The case is important because France was the only EU country to support the Commission's recommendation to authorise the Novartis maize during the licensing process. Unless member states reject a positive recommendation unanimously, the Commission must then give its authorisation. The advocate general's opinion implies that, had France changed its mind on the crop after its authorisation by the Commission, it could not have prevented it reaching the market even though not a single EU country would have by then been in favour of it.

The opinion could have real-world consequences if backed in a full judgement. First, it would provide a precedent for a second case in which the Commission is taking legal action against France for refusing written consent for a GM oilseed rape which it originally supported. Second, an identical situation may soon apply for Denmark, which has withdrawn its support for one of three GMO applications currently being considered by member states (see separate article in today's issue).

Follow Up:
European Court of Justice, tel: +352 43031. References: The opinion in case C-6/99 is posted on the court's web site.

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