On 6 September 2011, the European Court of Justice ("ECJ") issued its judgement on Case C-442/09 Bablok and Others, a preliminary reference from the German Administrative Court referring questions concerning the interpretation of certain definitions contained in Regulation EC1829/2003 on the release of genetically modified food and feed onto the EU market.
Background
German beekeepers sued the Bavarian government after their honey was unintentionally contaminated by pollen from field trials of a GM maize variety (MON810) in 2005. Although Monsanto's existing EU approval for MON810 covers food use of maize flour, gluten, starch, glucose and oil, it does not cover pollen. Further, honey containing the variety has not been, thus far, separately authorised for release resulting in the German beekeepers being prevented from selling their honey on the EU market.
The main proceedings - questions referred
To determine whether the honey in question would be caught by the Regulation and therefore subject to the requirement of authorisation before release, the following three questions were asked.
Question 1
Must the term "genetically modified organisms" (GMOs) defined in Article 2 be interpreted as including material from genetically modified plants (in this case pollen from GM maize) which although containing GM DNA, does not posses a capacity to reproduce?
The ECJ answered in the negative to this question.
Question 2
Does the meaning of food "produced from GMOs" in Article 2 include food that contains material from genetically modified plants which previously possessed a capacity to reproduce?
The ECJ answered affirmative.
Question 3
If either Questions 1 or 2 is answered in the affirmative, must Article 3 and 4 be interpreted as meaning that contamination of food through genetically modified material lawfully present in the environment needs separate authorisation or can thresholds applicable elsewhere apply mutatis mutandis?
The judgement
Firstly, the ECJ found that GM pollen did not come within the scope of the concept of a GMO because it had lost its ability to reproduce, the key being that it could no longer transfer the genetic material. Therefore, the pollen, thus far, was not caught by the regulation. Secondly, the ECJ found that the honey constituted food produced from GMOs. The reason being that the pollen contained therein was termed an ingredient of the honey rather than a foreign substance both because of the definition of honey found in the regulation and because the pollen could not be removed. It was irrelevant that the presence of the pollen was unintentional. Therefore the honey in question was indeed caught by the regulation. Thirdly, the ECJ took the strict approach ruling that the GM honey would need separate authorisation as tolerance thresholds existing in other parts of the regulation would not be applied by analogy.
The narrow approach to interpretation adopted by the ECJ in this case should come as no surprise. EU legislation on genetically modified organisms (GMOs) has traditionally been the most stringent legislation governing the matter in the world, laying down strict conditions relating to labelling, traceability, threshold and not least with regards to the release of GM food onto the market. Furthermore, the ECJ is fully aware that Member States not only appreciate the risks GMOs present, but also that they desire to exert as much control as possible over which GM products, if any, are released into their territory. A wide interpretation of the current legislation would take away that power.
