Europe's relationship with GMO crops has traditionally been a very stormy one, to say the least. Already, the European Parliament and the Council have been negotiating proposed amendments to Directive 2001/18/EC on the deliberate release into the environment of genetically modified organisms, which may allow Member States the possibility of prohibiting GMOs already approved at European level. However, the Court of Justice of the European Union (ECJ) is also doing its bit to add fuel to the fire. In a judgment dated 6 September 2011, the ECJ ruled on the particularly sensitive and restrictive issue of market approval.

In its judgment, the ECJ ruled on questions referred to it by a German court, finding that honey containing traces of pollen derived from GM maize may only be marketed following prior authorisation, regardless of the fact that the introduction of the pollen in question was unintentional or accidental, and irrespective of the proportion of GM material contained in this honey.

This preliminary ruling stemmed from a request by a Bavarian beekeeper who produced honey near public land on which Monsanto had been allowed to grow maize MON 810 for research purposes. In 2005, following the detection of very small quantities of MON 810 maize DNA in his honey, he initiated proceedings against Bavaria and Monsanto, seeking both a declaration that his honey had been rendered unsuitable for marketing, and damages caused as a result.

On this occasion, the ECJ went beyond the traditional question of GMO labelling, and ruled on the even more sensitive and restrictive issue of market approval. Based on a very broad interpretation of the EU's precautionary principle, the ECJ has clearly sent a strong signal by implicitly recognising the severity of accidental contamination. The ruling is undoubtedly likely to have serious consequences.

Very worrying to both suppliers and consumers of honey, the EU market could find itself short of honey pursuant to this ruling. The EU is said to rely on imports for up to 40% of its overall honey supplies. However, such imports containing traces of pollen from GM crops are set to be banned, unless they have been approved for entry. According to the European Commission, commenting on the ECJ ruling, China and Argentina – the two biggest exporters to the EU – are likely to be the most affected. In both countries unauthorised GM crops are reported to be extensively cultivated.

The scope of the case extends far beyond the issue of contaminated honey, as many other agricultural products may be subject to risks of adventitious or technically unavoidable contamination. Similarly, any foodstuff that may contain an ingredient that is itself derived from a GMO will certainly face the same obligation of prior approval.

There is a strong likelihood that the decision will affect imports of honey, and potentially other agricultural products, originating in countries that have authorised the cultivation of GMOs on their territory. Imported honey with GMO traces could face de facto import restrictions, for instance in the form of further non-tariff barriers and technical barriers to trade. In any event, imported honey will face the same obligation of market approval as honey originating in Europe.

The current authorisation scheme will, it is expected, be subject to modifications. It is indeed clearly not adapted to deal with the huge amounts of market approval requests that may arise following the ECJ's decision, as every batch of honey will have to be analysed for the presence of pollen. The Commission has already started discussions on the implementation of the ruling.

In the meantime, environmental NGOs are already calling the ruling a victory, both for consumers and for the "GM-free" movement in Europe. There is a strong expectation that the EU's rules against GMOs will henceforth become even tougher. A spokesperson from Greenpeace EU claimed that the ECJ's ruling "highlights how conventional and genetically modified agriculture cannot co-exist. When a GM crop is grown in open fields, contamination is impossible to stop. It's a scandal there's no Europe-wide liability regime to protect beekeepers or farmers affected by GM crops".

With the ruling, it is of course possible that such a liability regime may eventually be devised, for implementation across the EU-27. Similar punitive measures may likewise not be far off in respect of supplies of honey and other agricultural products that suffer from accidental cross-pollination in certain countries before being imported into the EU for sale to the EU's consumers.

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