LABELING AND GMO
LexInter | June 1, 2002 | 0 Comments

LABELING AND GMO

by requiring the mention of the presence of genetically modified organisms on the labeling of the crops in question, the authors of the contested decisions have, as has been said above, imposed an obligation which does not have its origin in any applicable community, legislative or regulatory provision; that the disputed formal notices are therefore illegal insofar as they oblige the recipient companies to comply with such an obligation; that they must, for this reason, be canceled CE November 20, 2002

DECISION OF A PUBLICATION ON THE INTERNET : Only the judicial authority is competent to assess the legality of the decision by which the administration published on the “internet” site of the Ministry of the Economy, Finance and Industry , the results of analyzes tending to detect the presence of GMOs in imported maize.  

LABELING AND GMO

V ° FOOD LAW

Council of State, October 1, 2001, n ° 225008, Association Greenpeace France

Even though the cultivation of one of the genetically modified varieties contained in the seed lots in question was not authorized, it is not apparent from the documents in the file that by refraining from declaring the destruction of the contested crops, the he author of the contested act committed a manifest error in the assessment of the risks, nor that he took a decision disproportionate to the risks thus assessed and disregarded the precautionary principle.

BOARD OF STATE

Ruling on litigation

N ° s 225008 and 225820

GREENPEACE France ASSOCIATION

RURAL COORDINATION SOCIETY UNION NATIONALE

Mr. Derepas, Rapporteur, Mr. Seners Government Commissioner

Session of September 12, 2001 Reading of October 1, 2001

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

The Council of State deciding on litigation

Seen 1 ° under n ° 225008, the summary request and the additional memorandum recorded at the litigation secretariat of the Council of State on September 14 and October 19, 2000, presented by the GREENPEACE FRANCE ASSOCIATION, whose registered office is 22, rue des Rasselins in Paris (75020); the GREENPEACE FRANCE ASSOCIATION asks the Council of State:

1) to annul the decision of July 14, 2000 by which the government decided not to order the destruction of crops of genetically modified maize varieties and recommended various measures;

2) to order the State to pay him the sum of 10,000 F in application of Article L. 761-1 of the Code of Administrative Justice;

Seen 2 °, under number 225820, the ordinance of September 28, 2000 by which the president of the administrative tribunal of Paris transmitted to the Council of State the request presented to this tribunal by the RURAL COORDINATION UNION NATIONALE; the RURAL COORDINATION UNION NATIONALE asks;

1) the annulment of the decision of July 14, 2000 by which the government decided not to order the destruction of crops of genetically modified maize varieties;

2) to order the State to pay him the sum of 25,000 F in application of article L. 761-1 of the code of administrative justice;

Having regard to the other documents in the files;

Having regard to Directive n ° 90/220 / EEC of the Council of April 23, 1990;

Considering the rural code;

Considering the law n ° 92-354 of July 13, 1992;

Considering decree n ° 63-766 of July 30, 1963;

Considering decree n ° 81-605 of May 18, 1981, modified by decree n ° 93-1177 of October 18, 1993;

Considering the code of administrative justice;

After hearing in public session:

-the report of Mr. Derepas, Master of requests;

-the observations of SCP Baraduc, Duhamel, lawyer of the company Novartis Seeds SA,

-the conclusions of Mr. Seners, Government Commissioner;

Considering that the aforementioned requests are directed against the same decision, made public by a press release dated July 14, 2000 from the Secretary of State for Small and Medium-Sized Enterprises, Commerce, Crafts and Consumption, by which the on the one hand, refused to destroy corn crops grown from traditional seeds among which the competition, consumption and fraud repression departments had detected the presence of genetically modified organisms, and, on the other hand, urged the professionals concerned to label the crops produced from these crops accordingly and to destroy the seeds containing one of the genetically modified organisms whose presence had been detected; that

On the interventions of the companies Golden-Harvest-Zelder and Novartis Seeds:

Considering that these companies have an interest in maintaining the contested decision as their interventions are, consequently, admissible;

On the conclusions of the company Golden-Harvest-Zelder tending to take note of the withdrawal of the request of the GREENPEACE FRANCE ASSOCIATION:

Considering that article 53-3 of the decree of July 30, 1963 then in force provides, in its third paragraph, that when a request for the end of a stay of execution of an administrative decision mentions the intention of the applicant to produce a memorandum additional, the applicant is deemed to have withdrawn if he does not file this memorandum within one month from the date on which the request was registered; that if the additional brief of the association Greenpeace France, produced more than a month after the filing of the request, mentions in error that this request tends to suspend the execution of the contested decision, it appears the content of this brief, as of that which preceded it, that the association’s request only seeks the annulment of said decision;

On the conclusions to dismiss the Minister of Agriculture and Fisheries and the company Novartis Seeds SA:

Considering that it follows from what has just been said that these conclusions, which tend for the Council of State to judge that there is no longer any need to rule on the request for suspension of execution of the association GREENPEACE FRANCE, must be rejected;

On the legality of the contested decision:

Without it being necessary to rule on the end of inadmissibility opposed by the Minister of the Economy, Finance and Industry;

Regarding external legality

Considering on the one hand that Article 13 of Council Directive 90/220 / EEC of 23 April 1990 provides that a product containing genetically modified organisms may be used in the territory of the Community as long as it is has been the subject of a favorable opinion from the Community authorities and of a “written consent” issued by a Member State of the Community, and provided that the specific conditions of employment specified in this consent are respected; that it follows on the other hand from articles 15 and 16 of the law of July 13, 1992 and articles 4-1 and 6-1 of the decree of May 18, 1981, in their wording resulting from the decree of October 18, 1993 taken for the application of this law that the

Whereas the applicant associations maintain that the contested decision must be regarded as an authorization to market genetically modified seeds subject to the procedure defined by the aforementioned provisions; that given the involuntary and fortuitous nature of the presence of genetically modified organisms in seeds imported by the Golden-Harvest-Zelder company, and the very low proportion of this presence, which is of the order of 2 per thousand , the decision not to destroy the crops produced from these seeds cannot, in the circumstances of the case, be regarded as a decision authorizing the cultivation of varieties containing genetically modified organisms; that as a result,

Considering that the applicant associations maintain that the contested decision should have been taken by the competent authority to carry out the plant health control provided for in Articles L. 951-12 to L. 951-14 of the new rural code in their wording applicable to the date of the contested decision, which reproduce the provisions of articles 356 to 359 of the old rural code; that it follows from the provisions of these articles that the purpose of this control is to prevent the contamination of plants by harmful organisms appearing on a list drawn up by the Minister of Agriculture in application of Article L. 951-3 of the same coded ; that this list, established at the date of the facts by the order of 30 July 1970 modified, did not include any genetically modified organism; that the above-analyzed means is, therefore,

Considering that if the V of article L. 951-1 of the rural code, which incorporates provisions resulting from the law of July 9, 1999, states that “in the interest of public health and the environment, administrative authority may, by decree, take … measures prohibiting restrictions or special requirements concerning the placing on the market, the delivery, and the use of seeds composed in whole or in part of genetically modified organisms “, such provisions could not in any event serve as a legal basis for the contested decision insofar as, as the regulatory power failed to designate the competent authority to take the decisions they provide, these provisions were not not entered into force on the date of the contested decision;that this sole reason is sufficient to rule out their implementation in this case without it being necessary to investigate whether they authorize the administration to proceed with the destruction of genetically modified organisms;

Considering, however, that under article 20 of the law of 13 July 1992, then in force, “in all cases where a new assessment of the risks that the presence of genetically modified organisms poses to public health or to the environment justifies it, the administrative authority may, at the expense of the holder of the authorization or of the holder of the genetically modified organisms: … d) Order the destruction of the genetically modified organisms and, in the event of failure of the holder of the ‘authorization or the holder, have it done ex officio “; that the authority competent to take such measures in the case of plants, seeds and plants containing genetically modified organisms is, by virtue of article 7-1 of the decree of 18 May 1981 as amended, the minister in charge of agriculture; that the aforementioned provisions of Article 20 of the Law of July 13, 1992 must be regarded as giving the Minister in charge of agriculture competence to order, in the event of a risk to public health or to the environment, the destruction of seeds and crops containing genetically modified organisms, whether or not the placing on the market of these seeds and crops has been authorized under the aforementioned provisions of the Law of 13 July 1992; that the Minister of Agriculture and Fisheries was, consequently, only competent to take the contested decision; agriculture competence to order, in the event of a risk to public health or the environment, the destruction of seeds and crops containing genetically modified organisms, whether or not the placing on the market of these seeds and crops has been an authorization in application of the aforementioned provisions of the law of July 13, 1992; that the Minister of Agriculture and Fisheries was, consequently, only competent to take the contested decision; agriculture competence to order, in the event of a risk to public health or to the environment, the destruction of seeds and crops containing genetically modified organisms, whether or not these seeds and crops have been placed on the market. an authorization in application of the aforementioned provisions of the law of July 13, 1992; that the Minister of Agriculture and Fisheries was, consequently, only competent to take the contested decision; an authorization in application of the aforementioned provisions of the law of July 13, 1992; that the Minister of Agriculture and Fisheries was, consequently, only competent to take the contested decision; an authorization in application of the aforementioned provisions of the law of July 13, 1992; that the Minister of Agriculture and Fisheries was, consequently, only competent to take the contested decision;

Considering that it follows from the terms of the press release making public the contested decision, which indicates that it was taken by “the government” after a “ministerial debate”, that the Minister of Agriculture and Fisheries is among the authors of this decision; that it emanates as a result of a competent authority;

Considering that as has just been said, the contested decision must be regarded as a measure taken on the basis of article 20 of the law of July 13, 1992; that contrary to what the National Union Rural Coordination supports, it does not result from the provisions of Article L. 611-1 of the new rural code, which define the powers of the higher guidance and coordination council of the agricultural economy and food, nor the provisions of the law of July 13, 1992 and the decree of May 18, 1981 amended, which define the powers exercised by the permanent technical committee for the selection of cultivated plants, the genetic engineering commission and the commission of

On the internal legality of the contested decision:

Considering that article L. 200-1 of the rural code then in force defines the precautionary principle as the principle according to which “the absence of certainties, taking into account the scientific and technical knowledge of the moment, must not delay the adoption effective and proportionate measures aimed at preventing a risk of serious and irreversible damage to the environment at an acceptable economic cost “;

Whereas it appears from the documents in the file that the crops covered by the contested decision originate from seeds containing, in proportions of the order of 2 per thousand, seeds from three varieties of genetically modified maize, called BT 176, MON 810 and BT 11;

Considering, on the one hand, that the seed varieties BT 176 and MON 810 were the subject, in application of the provisions of Article 13 of Directive 90/220 / EEC of 23 April 1990, of favorable decisions by the Commission of the European Communities dated 23 January 1997 and 22 April 1998 respectively, then were authorized for marketing by an order of 3 August 1998 of the Minister of Agriculture, after the competent national and community scientific committees had considered that these organisms did not present risks to public health and the environment; that the applicant associations do not invoke any means likely to call into question, with regard to the precautionary principle, the validity of the favorable decision of the Commission or the legality of the

Considering, on the other hand, that the genetically modified organism BT 11 was the subject of a favorable decision of the Commission of the European Communities on April 22, 1998 and of a “written consent” from the government of the United Kingdom. United dated June 9, 1998 authorizing the sale of this corn for the sole purpose of consumption, excluding its cultivation; It is common ground that at the date of the contested decision, the French Government had sent the Commission of the European Communities an opinion favorable to the authorization of the cultivation of this variety, after the study commission of the dissemination of products resulting from biomolecular engineering, on December 3, 1998, and the Higher Council of Public Hygiene of France, on October 2, 1997, concluded that the absence of foreseeable risks to health and the environment linked to such an authorization; however, it emerges from the documents in the file that in a notice dated 30 December 1999, the French food safety agency noted, on the one hand, that the file contained insufficient data concerning the content of the plant whole in minerals, carbohydrates and polysaccharides, and on the other hand, that additional data should be provided concerning the presence in the whole plant of proteins introduced by genetic modification; that if these elements are likely to call into question the transmission of the marketing authorization application to the Commission of the European Communities with a favorable opinion, they are not of a nature,

Considering that it follows from the foregoing that even though the cultivation of one of the genetically modified varieties contained in the seed lots in question was not authorized, it does not appear from the documents in the file that in s ‘refraining from pronouncing the destruction of the contested cultures, the author of the contested act committed a manifest error in the assessment of the risks, nor that he took a decision disproportionate to the risks thus assessed and disregarded the precautionary principle;

Considering that it follows from all the foregoing that the aforementioned requests must be rejected;

On the application of Article L. 761-1 of the Code of Administrative Justice:

Considering that these provisions prevent the State, which is not the losing party in the present proceedings, from being ordered to pay the requesting associations the sums they claim for the costs incurred by them and not included in the costs; that there is no need, in the circumstances of the case, to apply those provisions and to order the applicants to pay the company Novartis Seeds the sums it claims for the costs incurred by it and not included in costs;

D ECIDE:

Article 1: The interventions of the companies Golden-Harvest-Zelder and Novartis Seeds are admitted.

Article 2: The requests of the GREENPEACE FRANCE ASSOCIATION and of the Rural Coordination National Union are rejected.

Article 3: The conclusions of the company Novartis Seeds tending to the application of article L. 761-1 of the code of administrative justice are rejected.

Article 4: This decision will be notified to the GREENPEACE FRANCE ASSOCIATION, THE RURAL UNION NATIONALE COORDINATION, the Golden-Harvest-Zelder company, the Novartis Seeds company, and the Minister of Agriculture and Fisheries.

Council of State, September 25, 1998, ASSOCIATION GREENPEACE FRANCE

The aforementioned associations maintain that the contested decree was issued at the end of an irregular procedure, and, in particular, that the opinion of the study commission on the dissemination of products resulting from bio-molecular engineering was issued. in the light of an incomplete dossier in that it did not contain elements allowing an assessment of the impact on public health of the ampicillin resistance gene contained in the varieties of transgenic maize covered by the authorization request ; that they invoke the precautionary principle set out in article L. 200-1 of the rural code and the provisions both of article 15 of the law of July 13, 1992 and of article 6-1 added to the aforementioned decree of May 18, 1981 by the decree of October 18, 1993 taken for

Considering the request registered on February 19, 1998 at the Litigation Secretariat of the Council of State, presented by the GREENPEACE FRANCE ASSOCIATION represented by its Director General; the GREENPEACE FRANCE ASSOCIATION asks the Council of State:

1 °) to cancel the decree of February 5, 1998 of the Minister of Agriculture and Fisheries amending the official catalog of species and varieties of plants cultivated in France (corn seeds);

2 °) to decide that the execution of this decree will be suspended;

3) to order the State to pay him the sum of 20,000 F under article 75-I of the law of July 10, 1991;

Having regard to the other documents in the file;

Considering directive n ° 90/220 of April 23, 1990 of the Council of the European communities;

Considering the rural code;

Considering the law n ° 92-654 of July 13, 1992;

Considering decree n ° 81-605 of May 18, 1981, modified by decree n ° 93-1177 of October 18, 1993;

Considering the decree of February 4, 1997 of the Minister of Agriculture authorizing the placing on the market of seeds;

Considering the ordinance n ° 45-1708 of July 31, 1945, the decree n ° 53-934 of September 30, 1953 and the law n ° 87-1127 of December 31, 1987;

Considering that the decree of February 5, 1998 of the Minister of Agriculture and Fisheries, which the GREENPEACE FRANCE ASSOCIATION requests that execution be suspended, has as its object the registration in the official catalog of species and varieties plants cultivated in France of three varieties of genetically modified corn produced by the company Novartis Seeds;

On the admissibility of the intervention of the Ecoropa France association and Mr. Vernet:

Considering that the Ecoropa France association has an interest in the annulment of the contested decree; that she, moreover, filed conclusions tending to the cancellation of this decree; that thus the intervention of this association and of Mr Vernet in support of the applicant’s claims for suspension of execution of the said decree is admissible, without it being necessary to examine Mr Vernet’s interest in bringing proceedings. ;

On the conclusions tending to suspend the execution of the decree of 5 February 1998 of the Minister of Agriculture and Fisheries:

Considering that the aforementioned associations maintain that the contested decree was issued at the end of an irregular procedure, and, in particular, that the opinion of the study commission on the dissemination of products resulting from bio-molecular engineering would have was made in the light of an incomplete dossier in that it did not contain elements allowing an evaluation of the impact on public health of the ampicillin resistance gene contained in the varieties of transgenic maize covered by the request for authorization; that they invoke the precautionary principle set out in article L. 200-1 of the rural code and the provisions both of article 15 of the law of July 13, 1992 and of article 6-1 added to the aforementioned decree of May 18, 1981 by the decree of October 18, 1993 taken for application of the aforementioned law; that this means appears, in the state of instruction, serious and likely to justify the cancellation of the decree attacked; that having regard, moreover, to the nature of the consequences that the execution of the contested decree could entail, it is appropriate, in the circumstances of the case, to uphold the conclusions of the applicant association tending to ‘it is suspension of the execution of this decree;

D ECIDE:

Article 1: The intervention of the Ecoropa France association and of Mr. Vernet is allowed.

Article 2: Until a decision has been taken on the request of the GREENPEACE FRANCE ASSOCIATION directed against the decree of February 5, 1998 of the Minister of Agriculture and Fisheries amending the official catalog of species and varieties of plants cultivated in France (corn seeds), the execution of this decree will be suspended.

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