NGOs can ask the Commission to review its decision on genetically modified feed and food

The General Court decided in its decision of 14 March 2018 that non-governmental organizations (“NGOs”) can ask the Commission to review its decision on authorizing the placing on the market of genetically modified food and feed.

In 2015, the Commission allowed the placing on the market of foods, food ingredients and feed containing genetically modified soybeans after the European Food Safety Authority (“EFSA”) ruled that these products are as safe as their non-genetically modified counterparts with respect to potential adverse effects on human and animal health and the environment.

After the Commission’s decision to allow GM food and feed on the European market, Testbiotech, a German NGO dedicated to banning the use and consumption of genetically modified organisms (“GMOs”), asked the Commission to review its decision. This request for an internal review was based on the Aarhus Convention, which allows NGOs to participate in the decision-making process in environmental matters (see Article 10).

However, the Commission rejected Testbiotech’s request as it maintained that the decision concerned human and animal health and did not include environmental matters. The Commissioner for Health and Food Safety found that, because the health assessment of GM food and feed was not an environmental matter, the Aarhus Convention did not apply, thereby invalidating the request for an internal review.

Testbiotech then brought the case before the General Court, which concluded that Testbiotech could, based on the Aarhus Convention, request an internal review of the Commission’s decision and the Court therefore annulled the Commission’s decision. The Court ruled that the request for an internal review does relate to “environmental law” and therefore the request falls under the scope of the Aarhus Convention.

The Court decided that the request for internal review was admissible to the extent that it claims that the authorization decisions contravened provisions of environmental law within the meaning of the Aarhus Convention. It explained that the food and feed concerned must not be placed on the market if they have adverse effects on human health, animal health or the environment. The judgment stated that, when being cultivated, genetically modified soybeans are generally part of the natural environment and therefore properly constitute an element of the environment. Accordingly, the provisions regulating the effect on human or animal health of GMOs also fall within the area of the environment.

In summary, the Court maintained that “environmental law” under the Aarhus Convention covers any EU legislation on the regulation of GMOs that deals with a risk to human or animal health from those GMOs or from environmental factors affecting those organisms when they are cultivated or bred in the natural environment. This also applies to GMOs cultivated outside the European Union.

GMOs have always been a sensitive topic in the EU. Only one genetically modified crop is cultivated in the EU (Bt maize, which is genetically modified maize that produces an insecticide that kills certain insect pests).

Other countries have also opposed the consumption and cultivation of GMOs and have established cultivation and/or import bans for GMOs. For example, Angola has banned the import of genetically modified food aid coming from the United States during famines. The USA cultivates and consumes GMOs on a daily basis.