In February 2008, the French government banned the cultivation of Mon810, a variety of GM maize authorised for cultivation in the EU that year. Monsanto, Pioneer, the French association of maize producers and seed producers started legal proceedings against the measure before the French administrative court which then referred the case to the European Court of Justice ("ECJ").
On 8 September 2011, the ECJ ruled (Joined Cases C-58 to 68/10) that in principle a Member State does have recourse to emergency measures to prohibit the cultivation of a substance like Mon 810 under Regulation No 1829/2003, but that there are substantive conditions and procedural conditions which must be met first. The Member State must first inform the Commission officially of the need to take the emergency measures. If the Commission fails to act, the Member State must inform it and the other Member States immediately of the content of the interim measures which it has adopted.
In addition, the Member State must establish urgency and the existence of a situation which is likely to constitute a clear and serious risk to human health or the environment. Further, the measures may only be adopted if they are based on a risk assessment which is as complete as possible in the circumstances and shows that the measures are necessary.
Lastly, the ECJ reiterated that only a EU level decision could determine whether or not to allow a ban for the cultivation of a GMO, subject to review by the EU Courts. National courts before which proceedings have been brought can only assess the lawfulness of the emergency measures as long as no decision has been adopted at EU level. Once such a decision has been made, the national courts have no jurisdiction to rule on the issue.
The future holds interesting developments ahead as other European countries have also banned the cultivation of Mon810. These include Germany, Austria, Hungary, Greece, Luxembourg and Bulgaria. Further, under Directive 2001/18/EC, the adoption of emergency measures are allowed by a Member State directly and on its own initiative. The implications of this may also be more closely looked at in the future.