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08 May 2013
As in most European countries, controversy is never far away in Belgium when it comes to genetically modified organisms (GMOs). GMOs are strictly regulated. Based on existing European rules, the government has implemented a strict regulatory framework for GMO field trials. These rules apply to the various parties involved, from the field trial host to the competent government authorities. But what happens when one of the players fails to respect the rules? Does it affect the valid work that has already been done by others?
These questions recently arose before the president of the Ghent Court of First Instance in the context of expedited civil proceedings initiated by Greenpeace against the Belgian state and the University of Ghent in pursuit of an injunction against the latter's field trial involving a genetically altered potato.
GMO field trials are subject to prior written government authorisation.(1) In the case at hand, written authorisation had been obtained from the competent minister on March 4 2011, following positive (but not unanimous) advice from the Bio Security Council. However, according to Greenpeace, the authorisation was illegal because it was insufficiently motivated; consequently, the field trial was also necessarily unlawful.
On August 1 2012 the court agreed with Greenpeace on the first point, but not on the second.
With respect to the first point, the court correctly pointed out that the ministerial decision of March 4 2011 was an "administrative act". Such acts are subject to a statutory obligation to disclose the legal and factual considerations on which the decision is based. Since, in the present case, the minister's decision had been poorly motivated, it was held to have fallen foul of that obligation. According to the court, this was all the more true in view of the fact that the Bio Security Council's positive advice had not been unanimous; the minister should have addressed the concerns raised in the minority opinions. In addition, contrary to the clear prescriptions under the GMO legislation, the minister's decision failed to refer to the technical file that had been prepared by the University of Ghent containing the environmental risk assessment that it had conducted.
The court then considered Greenpeace's second argument. Duly taking account of the fact that the (formal) irregularity of the field trial could not be attributed to the trial host, but entirely to the government, the court decided that the mere formal illegality of the minister's decision could not be considered as a clear violation of environmental law, as required by the applicable legislation.(2) For a given activity to be a clear violation of the applicable GMO legislation, it is required not only that the violation be sufficiently certain, but also that it have an adverse effect on the environment. According to the court, Greenpeace raised only general commonplace concerns about the risks of GMO field trials, but failed to submit concrete evidence that the university field trial had an adverse effect on the environment. The court added that even under the assumption that the present situation had amounted to a clear violation of environmental law, it would have used its discretionary power to decide that, on a proper balance of interests, banning the field trial would have been disproportionate in the present circumstances.
Regardless of any moral discussions that usually arise in this context, this decision should be welcomed for several reasons. First, both the pragmatic approach of the court and the timeframe within which the case was dealt with (less than two months from start to finish) stand in sharp contrast with the formalistic and time-consuming practice before the Council of State, which usually deals with objections against regulatory decisions. Second, the court's refusal to stop the contested field trial on formal grounds offers reassurance to parties which have invested a lot of money and effort in the research and development of a potentially groundbreaking technology that not everything is lost should the government partner in the project fail to keep its side of the bargain. Finally, in an age of political and media frenzy against GMOs, the court should be praised for not succumbing to external pressure and for remaining impartial and independent.
For further information on this topic please contact Philippe de Jong or Kirian Claeyé at ALTIUS by telephone (+32 2 426 1414), fax (+32 2 426 2030) or email (email@example.com or firstname.lastname@example.org).
(1) Article 3(1) of the Royal Decree on the deliberate release into the environment and the placing on the market of genetically modified organisms or products containing such organisms, February 21 2005. This decree transposed Directive 2001/18/EC (with virtually the same title) into Belgian law.
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