Case C-36/11

Pioneer Hi Bred Italia Srl

v

Ministero delle Politiche agricole alimentari e forestali

(Reference for a preliminary ruling from the Consiglio di Stato)

‛Agriculture — Genetically modified organisms — Council Directive 2002/53/EC — Common catalogue of varieties of agricultural plant species — Genetically modified organisms accepted for inclusion in the common catalogue — Regulation (EC) No 1829/2003 — Article 20 — Existing products — Directive 2001/18/EC — Article 26a — Measures to avoid the unintended presence of genetically modified organisms — National measures prohibiting the cultivation of genetically modified organisms accepted for inclusion in the common catalogue and authorised as existing products pending measures based on Article 26a of Directive 2001/18/EC’

Summary — Judgment of the Court (Fourth Chamber), 6 September 2012

1. Approximation of laws — Genetically modified foodstuffs and animal feed — Products authorised by virtue of Regulation No 1829/2003 and accepted for inclusion in the Common catalogue of varieties of agricultural plant species provided for in Directive 2002/53 — Member States having the possibility of submitting the cultivation of products to a national authorisation procedure — Not included

   (European Parliament and Council Regulation No 1829/2003, Recitals 9, 33, and 34, Art. 20; Council Directive 2002/53, Arts 4(4) and 5 and 7(4))

2. Environment — Genetically modified foodstuffs and animal feed — Directive 2001/18 — Measures to avoid the accidental presence of those organisms in the environment — Member States having the possibility of prohibiting in a general manner the cultivation of those organisms pending the adoption of coexistence measures — Not included

   (European Parliament and Council Regulation No 1829/2003; European Parliament and Council Directive 2001/18, Art. 26a; Council Directive 2002/53)

1.  The cultivation of genetically modified organisms such as the MON 810 maize varieties cannot be made subject to a national authorisation procedure when the use and marketing of those varieties are authorised pursuant to Article 20 of Regulation No 1829/2003 on genetically modified food and feed and those varieties have been accepted for inclusion in the common catalogue of varieties of agricultural plant species provided for in Directive 2002/53 on the common catalogue of varieties of agricultural plant species, as amended by Regulation No 1829/2003.

   Regulation No 1829/2009 and Directive 2002/53 both seek to enable the free use and marketing of genetically modified organisms throughout the European Union, provided they are authorised in accordance with that regulation and accepted for inclusion in the common catalogue pursuant to that directive. Furthermore, having regard to recitals 9, 33 and 34 in the preamble to Regulation No 1829/2003 and Articles 4(4) and (5) and 7(4) of Directive 2002/53, the conditions imposed by those two acts, for authorisation or inclusion in the common catalogue respectively, cover the requirements for the protection of health and the environment.

   (see paras 65, 66, 76, operative part)

2.  Article 26a of Directive 2001/18 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220, as amended by Directive 2008/27, does not entitle a Member State to prohibit in a general manner the cultivation on its territory of such genetically modified organisms pending the adoption of coexistence measures to avoid the unintended presence of genetically modified organisms in other crops.

   An interpretation of Article 26a of Directive 2001/18 which would enable the Member States to establish such a prohibition would therefore run counter to the system implemented by Regulation No 1829/2003 on genetically modified food and feed and Directive 2002/53 on the common catalogue of varieties of agricultural plant species, as amended by Regulation No 1829/2003, which consists in ensuring the immediate free movement of products authorised at a Community level and accepted for inclusion in the common catalogue, once the requirements of protection of health and the environment have been taken into consideration during the authorisation and acceptance procedures. In conclusion, Article 26a of Directive 2001/18 can give rise to restrictions, or even to geographically restricted prohibitions, only through the effect of coexistence measures actually adopted in compliance with the objective of that directive.

   (see paras 74-76, operative part)

Case C-36/11

Pioneer Hi Bred Italia Srl

v

Ministero delle Politiche agricole alimentari e forestali

(Reference for a preliminary ruling from the Consiglio di Stato)

‛Agriculture — Genetically modified organisms — Council Directive 2002/53/EC — Common catalogue of varieties of agricultural plant species — Genetically modified organisms accepted for inclusion in the common catalogue — Regulation (EC) No 1829/2003 — Article 20 — Existing products — Directive 2001/18/EC — Article 26a — Measures to avoid the unintended presence of genetically modified organisms — National measures prohibiting the cultivation of genetically modified organisms accepted for inclusion in the common catalogue and authorised as existing products pending measures based on Article 26a of Directive 2001/18/EC’

Summary — Judgment of the Court (Fourth Chamber), 6 September 2012

1. Approximation of laws — Genetically modified foodstuffs and animal feed — Products authorised by virtue of Regulation No 1829/2003 and accepted for inclusion in the Common catalogue of varieties of agricultural plant species provided for in Directive 2002/53 — Member States having the possibility of submitting the cultivation of products to a national authorisation procedure — Not included

   (European Parliament and Council Regulation No 1829/2003, Recitals 9, 33, and 34, Art. 20; Council Directive 2002/53, Arts 4(4) and 5 and 7(4))

2. Environment — Genetically modified foodstuffs and animal feed — Directive 2001/18 — Measures to avoid the accidental presence of those organisms in the environment — Member States having the possibility of prohibiting in a general manner the cultivation of those organisms pending the adoption of coexistence measures — Not included

   (European Parliament and Council Regulation No 1829/2003; European Parliament and Council Directive 2001/18, Art. 26a; Council Directive 2002/53)

1.  The cultivation of genetically modified organisms such as the MON 810 maize varieties cannot be made subject to a national authorisation procedure when the use and marketing of those varieties are authorised pursuant to Article 20 of Regulation No 1829/2003 on genetically modified food and feed and those varieties have been accepted for inclusion in the common catalogue of varieties of agricultural plant species provided for in Directive 2002/53 on the common catalogue of varieties of agricultural plant species, as amended by Regulation No 1829/2003.

   Regulation No 1829/2009 and Directive 2002/53 both seek to enable the free use and marketing of genetically modified organisms throughout the European Union, provided they are authorised in accordance with that regulation and accepted for inclusion in the common catalogue pursuant to that directive. Furthermore, having regard to recitals 9, 33 and 34 in the preamble to Regulation No 1829/2003 and Articles 4(4) and (5) and 7(4) of Directive 2002/53, the conditions imposed by those two acts, for authorisation or inclusion in the common catalogue respectively, cover the requirements for the protection of health and the environment.

   (see paras 65, 66, 76, operative part)

2.  Article 26a of Directive 2001/18 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220, as amended by Directive 2008/27, does not entitle a Member State to prohibit in a general manner the cultivation on its territory of such genetically modified organisms pending the adoption of coexistence measures to avoid the unintended presence of genetically modified organisms in other crops.

   An interpretation of Article 26a of Directive 2001/18 which would enable the Member States to establish such a prohibition would therefore run counter to the system implemented by Regulation No 1829/2003 on genetically modified food and feed and Directive 2002/53 on the common catalogue of varieties of agricultural plant species, as amended by Regulation No 1829/2003, which consists in ensuring the immediate free movement of products authorised at a Community level and accepted for inclusion in the common catalogue, once the requirements of protection of health and the environment have been taken into consideration during the authorisation and acceptance procedures. In conclusion, Article 26a of Directive 2001/18 can give rise to restrictions, or even to geographically restricted prohibitions, only through the effect of coexistence measures actually adopted in compliance with the objective of that directive.

   (see paras 74-76, operative part)