LABELING AND GMO
LexInter | August 19, 2017 | 0 Comments

LABELING AND GMO

Council of State
ruling
on litigation
N ° 229017

Published by Tables du Recueil Lebon

3/8 SSR


M. Derepas, Rapporteur
M. Séners, Government Commissioner
Reading of 20 November 2002

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE
Considering the request, registered on January 9, 2001 at the litigation secretariat of the Council of State, presented by the COMPANY GOLDEN-HARVEST-ZELDER, whose head office is at the place “La Planche” in Rosiers-sur-Loire (49350); the GOLDEN-HARVEST – ZELDER COMPANY asks the Council of State:

1 °) to annul the decision of the Secretary of State for Small and Medium-Sized Enterprises, Trade, Handicrafts and Consumption which imposes the labeling of crops from corn seeds of the GOLDEN-HARVEST-ZELDER COMPANY , prohibits their sale to the “non-GMO” sector and prescribes the establishment of a self-control system on these maize;

2 °) to annul the individual decisions of several departmental directors of competition, consumption and the repression of fraud applying this ministerial decision to farmers who bought seeds from the GOLDEN-HARVEST-ZELDER COMPANY;

3) to order the State to pay him the sum of 50,000 F under Article L. 761-1 of the Code of Administrative Justice;

Having regard to the other documents in the file;

Having regard to the treaty of 25 March 1957 establishing the European Economic Community;

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

Considering the decision n ° 97/98 / CE of the Commission of January 23, 1997;

Having regard to Regulation (EC) n ° 258/97 of the European Parliament and of the Council of January 27, 1997;

Having regard to Regulation (EC) n ° 1139/98 of the Council of May 26, 1998;

Having regard to Commission Regulation (EC) n ° 49/2000 of January 10, 2000;

Having regard to the consumer code;

Having regard to the decree of 4 November 1994 of the Minister of Agriculture and Fisheries;

Considering the code of administrative justice;

After hearing in public session:

– the report of Mr Derepas, Master of Requests,

– the conclusions of Mr. Séners, Government Commissioner;

Considering that it emerges from the documents in the file that the analyzes carried out in February 2000 by the services of the General Directorate for Competition, Consumer Affairs and Fraud Control, and the results of which are not seriously contested by the applicant company, demonstrated the accidental presence of genetically modified organisms in batches of conventional seeds of corn imported from the United States by the company GOLDEN-HARVEST-ZELDER; that by letters sent in September and October 2000, several departmental directors of competition, consumption and the repression of fraud, acting on the instructions of the Secretary of State for small and medium-sized enterprises, trade, crafts and consumption, asked twelve companies that bought these seed lots to label the crops that would have resulted from them in such a way as to indicate the presence of genetically modified organisms, to ensure that these crops are not sold to companies belonging to a “GMO-free or non-GMO” sector, and to set up a “self-control system” intended to ensure compliance with these requirements; that the GOLDEN-HARVEST-ZELDER COMPANY requests the annulment of the decision by which the Secretary of State for small and medium-sized enterprises, commerce, crafts and consumption issued these requirements as well as decisions of

With regard to the contested ministerial instruction:

On the end of non-receipt opposed by the Minister of the Economy, Finance and Industry:

With regard to the provisions of the instruction prescribing that crops will be labeled so as to mention the presence of genetically modified organisms:

Whereas it appears from the documents in the file that the corn crops in question are likely, having regard to the varieties from which they come, to be used for animal feed, for industrial uses, or, after processing, for human food;

Considering that if Article 2 of Council Regulation (EC) No 1139/98 of May 26, 1998, amended by Commission Regulation (EC) No 49/2000 of January 10, 2000, defines the labeling rules foodstuffs intended for human consumption which incidentally contain genetically modified organisms, including, as in this case, maize authorized by Commission Decision 97/98 / EC of 23 January 1997, it follows from the text even of these provisions that the obligations which they impose only apply to the labeling of foodstuffs presented for sale to the final consumer and to communities; that they are not, however, applicable to foodstuffs which, such as the contested foodstuffs,

Considering that no other Community provision having direct effect requires indicating, on the labeling of foods intended for animal feed or human consumption after processing, that these foods contain genetically modified organisms; that if Annex III of Directive 90/220 of 23 April 1990 provides, in the wording resulting from Directive 97/35 of 18 June 1997, that the labeling of any product placed on the market must indicate, where appropriate , “whether the product consists of or contains genetically modified organisms”, and “that in the event of placing on the market products consisting of a mixture of GMOs and non-genetically modified organisms,

Considering, finally, that no legislative or regulatory provision requires mentioning the presence of genetically modified organisms on the labeling of foodstuffs intended for animal feed or for human consumption after processing;

Considering that it follows from the foregoing that by prescribing the mention of the presence of genetically modified organisms on the labeling of the crops in question, the Secretary of State for Small and Medium-Sized Enterprises, Commerce, Handicrafts and the consumer was not confined to recalling the law in force, but enacted a new obligation; that as a result, the provisions of the instruction attacked enacting this prescription, which have a regulatory character, are likely to be challenged by way of recourse for excess of power;

With regard to the provisions of the instruction requiring buyers of seeds not to sell the crops to companies belonging to a sector “without or without GMOs” and to set up a “self-control system”:

Considering that under the terms of Article L. 212-1 of the Consumer Code: “From the first placing on the market, the products must meet the requirements relating to (…) fairness of transactions, commercial (. ..). The person responsible for placing a product on the market for the first time is therefore required to verify that it complies with the requirements in force. to justify the checks and controls carried out “; that Article L. 213-1 of the same code provides, in the version in force on the date of the contested decisions, that “shall be punished by imprisonment for two years and a fine of 250,000 F or the

Considering that it follows from the combination of these provisions that, in the first place, a supplier who knowingly sells foodstuffs containing genetically modified organisms to a buyer who has previously notified this supplier that such a presence constitutes a reason refusal to purchase on his part disregards the requirements relating to the fairness of commercial transactions; that the circumstance that there is no legal definition of the tolerance limits below which a production can be regarded as “GMO-free” and that the guarantee of a total absence of GMOs would be impracticable because of technical difficulties and costs it would face is not such as to exempt sellers of foodstuffs from this obligation of loyalty; that the provisions of the contested instruction requiring buyers of seeds not to sell the crops to companies belonging to a sector “without or without GMO”, which can only be applied when the latter companies have previously notified their suppliers their refusal to buy products containing genetically modified organisms, therefore, only recall the regulations in force, without adding any new obligation; that they cannot therefore be the subject of an appeal for excess of power;

Considering, secondly, that the aforementioned provisions of the instruction require farmers, part of whose crops contain genetically modified organisms, to carry out, with a view to ensuring the fairness of transactions, checks to ensure that they do not will not sell these products to buyers for whom the presence of such organizations would constitute a reason for refusal to purchase; that the fact that the provisions of Article L. 214-1-1 of the Consumer Code, which aim to ensure the traceability of certain categories of goods, were not in force on the date of the contested instruction at lack of implementing regulatory provisions is not such as to exempt grain sellers from this obligation; that the applicant company can not usefully invoke the provisions of the decree of 4 November 1994 of the Minister of Agriculture and Fisheries, which relates to the control and certification of only seeds; that by asking the heads of the decentralized services responsible for ensuring compliance with the aforementioned provisions to order the professionals concerned to set up a “self-control system” intended to ensure the fairness of transactions, the author of the the contested instruction confined itself to setting out the applicable rules and giving guidance on their implementation in the present case, without enacting any new prescription; that the provisions in question instruction litigious are, consequently, not susceptible to recourse for excess of power;

On the legality of the provisions by which the ministerial instruction attacked prescribes that the crops will be labeled so as to mention the presence of genetically modified organisms:

Considering that as stated above, these provisions impose on the professionals concerned an obligation which is not provided for by the legislation in force; that the Secretary of State for small and medium-sized enterprises, commerce, crafts and consumption did not derive any power to enact them; that these provisions thus emanate from an incompetent authority and must, for this reason, be canceled;

Regarding the decisions of the departmental directors of competition, consumption and fraud prevention:

On the end of non-receipt opposed by the Minister of the Economy, Finance and Industry:

Considering that by the contested decisions, the departmental directors prescribed in a precise way to the recipient companies the measures which they had to implement in order to comply with the legislation; that these decisions constitute formal notices presenting the character of decisions liable to appeal for excess of power;

On the external legality of the contested decisions:

Considering that in justifying the contested decisions by the circumstance that the buyers had to be informed of the presence of genetically modified organisms in the contested crops “since an absence of information was likely to mislead them as to the qualities of the product purchased “, their authors have sufficiently justified these decisions;

On internal legality:

Considering that by prescribing 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 originate from 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;

Whereas, on the other hand, as stated above, it follows from the combined provisions of Articles L. 212-1 and L. 213-1 of the Consumer Code that professionals marketing the contested crops must, from a on the one hand, refrain from selling them to buyers for whom the presence of genetically modified organisms would constitute a reason for refusal to purchase previously notified to the supplier and, on the other hand, put in place the necessary control mechanisms for this purpose ; that as a following, the SOCIETE GOLDEN HARVEST-ZELDER SARL is not founded to maintain that the prescriptions having this object could not, lack of legal basis, give rise to formal notices challenged;

On the conclusions tending to the application of the provisions of article L. 761-1 of the code of administrative justice:

Considering that it is necessary, in application of these provisions, to condemn the State to pay to the COMPANY GOLDEN-HARVEST-ZELDER the sum of 3,000 euros for the costs incurred by it and not included in the costs;

DECIDES:
Article 1: The provisions of the instruction by which the Secretary of State for small and medium-sized enterprises, commerce, crafts and consumption prescribed that the presence of genetically modified organisms must be mentioned on the labeling of the harvests that it targets, together with the provisions of the individual decisions, dated September and October 2000, of the departmental directors of competition, consumption and the repression of fraud imposing this prescription on farmers who have purchased seeds from the GOLDEN-HARVEST-ZELDER COMPANY are canceled.
Article 2: The State will pay the GOLDEN-HARVEST-ZELDER COMPANY the sum of 3,000 euros under article L. 761-1 of the administrative justice code.
Article 3: The surplus of the conclusions of the request of the COMPANY GOLDEN-HARVEST-ZELDER is rejected.
Article 4: This decision will be notified to the GOLDEN-HARVEST-ZELDER COMPANY and to the Minister of the Economy, Finance and Industry

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