Verdict of the European Court of Justice Advocate General opens the door for some new GMO techniques to escape risk assessment

On Thursday 18 January, the European Court of Justice published the opinion of its Advocate General on the legal status of modern "targeted" mutagenesis, including some of the GMO techniques known as “new breeding techniques”.

This opinion confirms what civil society and the Greens/EFA have said from the beginning: these are not “breeding techniques” but GMO techniques. This is a clear victory against a corporate newspeak aimed at creating false public acceptance.

However, it isn’t all good news. At the same time, the Advocate General opened the door for some of these techniques to be exempt from risk assessment, traceability and labelling. These potential exemptions are all the more unwelcome given that the criteria proposed by this opinion are vague and subject to controversy, including within the scientific community. More worryingly, whereas a long history of safe use had been up until now considered a pre-requisite to release any products from mutagenesis in the environment without a prior risk assessment, the Advocate General considers this to be unnecessary.

Green MEP Bart Staes commented: “It would be absolutely reckless and unacceptable if products legally defined as new types of GMOs were to be released without a case-by-case risk assessment and without any labelling. Farmers have the right to know what they sow, and citizens what they eat.”

Equally baffling is the fact that the Advocate General has completely ignored the EU’s legal international obligations under the Cartagena Protocol to ensure traceability and labelling of the products of all modern biotechnologies.

It is to be hoped that the European Court of Justice, whose final decision is due this spring, will not make the same mistakes. According to the Greens, "Citizens should be the ones to discuss and decide which technologies should be authorised in their society – this essential debate is still to take place."

According the organic food and farming movement IFOAM, the Advocate General, in his opinion, merely confirms the existing exemption from the requirements of the GMO legislation for plants obtained through mutagenesis techniques, and fails to provide effective criteria that would allow to make a distinction between old techniques and new GM techniques developed in recent years.

Eric Gall, IFOAM EU Policy Manager: “If it is followed by the judges of the Court of Justice, today’s opinion will not bring any clarification on which genetic engineering techniques are legally exempted from the requirements of the GMO legislation. The General Advocate confirms that GMOs obtained by other techniques than transgenesis are indeed GMOs from a legal point of view, and should be regulated as such, but he ignores the intention of the legislator back in 1990, which was to only exempt from risk assessment techniques which were used since the 1960s and which had 'a long safety record'."

The older technique referred to is random mutagenesis by exposure to chemical mutagens or radiation.

Gall added, “There are no legal or scientific reasons to exempt from risk assessment, traceability and labelling, recently developed genetic engineering [techniques] which have nothing to do with the mutagenesis of the 1960s, however they are called by their proponents. Exempting these new genetic engineering [techniques] from a risk assessment would be a blatant denial of the precautionary principle and of the citizens’ right to know how their food is produced."

IFOAM EU urges the Court of Justice to take into account the intentions of the legislator when Directive 2001/18 was adopted and the international obligations of the EU under the Convention on Biological Diversity, which provides a definition of modern biotechnologies.

The first version of Directive 2001/18 on the deliberate release of GMOs into the environment was Directive 90/220, adopted in 1990, which included the same definition of a GMO and the same exemption from the legal obligations for mutagenesis and cell fusion. Recital 17 of Directive 2001/18 states that: “This Directive should not apply to organisms obtained through certain techniques of genetic modification which have conventionally been used in a number of applications and have a long safety record”.

According to IFOAM EU, the current exemption dates back from 1990 and is irrelevant to decide whether the latest technologies should be exempted from an assessment of their risks. The term 'mutagenesis' is now being used to describe techniques that are very different from what was existing at the time of the adoption of the GMO legislation in 1990, or at the time of its revision in 2001.

The Advocate General exempts mutagenesis techniques from the EU's GMO legislation only if they do not involve the use of recombinant nucleic acid molecules. An article in Feed Navigator quotes a researcher at the John Innes Centre in the UK as saying that the definition of recombinant nucleic acids is still "open to different interpretations". The Advocate General does not provide an interpretation.

Commenting on the Advocate General's opinion, Mute Schimpf, food and farming campaigner at Friends of the Earth Europe, said: "Farmers and consumers across the EU expect that any new approach to producing food and crops should be fully tested to make sure they are safe for the public and the environment.They will be counting on the European Court of Justice to not uphold today's opinion, and instead make sure that all new genetically modified foods and crops are properly regulated."

The ECJ is expected to make its final ruling in the coming months, taking into account the opinion published today. The case was referred to the EU court by the French Conseil d'État, after French organisations including Les Amis de la Terre/Friends of the Earth France had filed it at the national level.

Corporate Europe Observatory's agriculture campaigner Nina Holland said: "The safety of this new generation of GM crops remains completely untested and must therefore not be exempted from existing safety rules. Our common interest in food safety, farmers' rights and protecting the environment must come before the biotech industry's interests."

Scientists, consumer groups and NGOs have called for this new generation of GM products to be regulated under existing laws. Public opinion surveys in the EU have consistently shown a lack of appetite for GM products.

 
Notes:

Link to Directive 2001/18:
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32001L0018&from=EN

Link to Directive 90/220:
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31990L0220&from=en

Sources: Greens/EFSA in the EU Parliament
https://www.greens-efa.eu/en/article/news/modern-mutagenesis-techniques-are-gmos-according-to-the-ecj-advocate-general/
IFOAM
Friends of the Earth Europe
Corporate Europe Observatory