| This is an English translation and adaptation by GMWatch of a French language article, "OGM: le Conseil d’État suit les organisations contre le gouvernement", by Zoé Jacquinot, published by Inf'OGM, February 7, 2020.
--- GMOs: French Council of State rules against the government over gene-editing and herbicide tolerance * Decision affirms that plants produced using gene editing or random mutagenesis are subject to the EU's GMO regulations
On 7 February 2020,[1] the French Council of State (the highest court in France for cases involving public administration) brought to a conclusion a court case that has dragged on for over five years, which has seen nine different organisations (associations) join together to oppose the French government over its regulation of certain techniques of genetic modification termed "mutagenesis". The Council of State affirms that the mutagenesis techniques known as "directed" (or "targeted") mutagenesis (also called "gene editing") and "random in vitro" mutagenesis should be regulated as GMOs.
"Random in vitro" mutagenesis involves decades-old techniques that produce mutations in plants by bombarding them with radiation or chemicals, in the hope that a useful trait will result. They are defined as GM in the EU's GMO regulations but were exempted from safety assessment and labelling due to their assumed history of safe use.
Inf'OGM reports that the Council of State's decision requires the French government, with the help of the High Council of Biotechnology (HCB), to establish a list of techniques of genetic modification that have been traditionally used without risk. For a government that has never asked about or monitored the techniques used to produce the seed varieties officially catalogued, this is a major task.
Specifically, this decision particularly affects sunflowers and rapeseed made tolerant to herbicides (VrTH). The latter must now be removed from the official catalogue of plants within nine months if they have not been assessed according to the procedures defined by Directive 2001/18. The applicant associations state in a press release that these varieties have been registered illegally and that "This concerns all new techniques of mutagenesis, including those applied to cells isolated and multiplied in vitro. This particularly concerns the herbicide-tolerant varieties Clearfield rapeseed and Clearfield Plus sunflower."[2]
In addition, the Prime Minister's refusal in 2015 to repeal decree D531-2 of the Environment Code, listing techniques which "are not considered to give rise to genetic modification", which includes "mutagenesis", as well as his refusal to establish a moratorium on varieties made tolerant to herbicides (VrTH), is cancelled.
In cancelling the Prime Minister's refusal and in justifying the removal of certain seed varieties from the catalogue, the Council of State relies mainly on the judgment rendered in 2018 by the European Court of Justice (ECJ), following preliminary questions asked by the Council of State.[3] This ECJ ruling shed light on the wording of the European legislation on GMOs (Directive 2001/18). In fact, according to this ruling, only mutagenesis techniques that have traditionally been used in multiple applications and without risk can avoid being subject to the evaluation and authorization obligations of the directive (Annex IB).
The implementation of this decision will certainly be the subject of future debate.
The decision also says, "The Council of State also considered that, under the precautionary principle, the Prime Minister could not refuse to take precautionary measures regarding the use of plant varieties that have been made herbicide tolerant." The organisations that asked for a moratorium on such varieties emphasise that although the Council of State does not grant this, it does "instruct the government to carry out an evaluation of the risks generated by these varieties and to define cultivation conditions intended to limit the use of herbicides".
In conclusion, "The associations welcome this decision of the Council of State which puts health and the environment before the economic interests of some seed and pesticide companies. They expect the government to finally apply the law in accordance with the constitutional precautionary principle."
Notes
[1] https://www.conseil-etat.fr/ressources/decisions-contentieuses/dernieres-decisions-importantes/conseil-d-etat-7-fevrier-2020-organismes-obtenus-par-mutagenese
[2] http://confederationpaysanne.fr/actu.php?id=9711
[3] Inf'OGM, « Europe - Les nouveaux OGM sont des OGM comme les autres », Charlotte KRINKE, 25 July 2018
https://www.infogm.org/6609-europe-nouveaux-ogm-sont-ogm-comme-autres?lang=fr __________________________________________________________ Website: http://www.gmwatch.org
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