Item 1
<http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-09/cp110079en.pdf>
Court of Justice of the European Union
PRESS RELEASE No 79/11
Luxembourg, 6 September 2011
Press and Information
Judgment in Case C-442/09
Karl Heinz Bablok and Others v Freistaat Bayern
Honey and food supplements containing pollen derived from a GMO are foodstuffs produced from GMOs which cannot be marketed without prior authorisation
That pollen is itself no longer a GMO when it has lost its ability to reproduce and is totally incapable of transferring genetic material
The directive on genetically modified organisms (GMOs)(1) provides that such organisms may be released deliberately into the environment or placed on the market only when prior authorisation has been given.
Moreover, the regulation on genetically modified food(2) provides that GMOs for food use, foodstuffs containing or consisting of GMOs, or foodstuffs produced from ingredients produced using or containing GMOs must be authorised before being placed on the market.
In 1998 Monsanto obtained marketing for the genetically modified MON 810 maize. This contains the gene of a bacterium producing toxins which destroy the larvae of a parasitic butterfly, infestation with which constitutes a danger for the development of the maize plant.
A dispute has arisen between Mr Bablok, an amateur beekeeper, and Freistaat Bayern (State of Bavaria, Germany), which owns a number of plots of land on which MON 810 maize has been cultivated for research purposes in recent years. In the vicinity of those plots of land, Mr Bablok produces honey both for sale and for his own personal consumption. Up to 2005, he also produced pollen for sale as a foodstuff in the form of a food supplement. In 2005, MON 810 maize DNA and genetically modified proteins were detected in the maize pollen harvested by Mr Bablok in beehives situated 500 metres from the plots of land belonging to Freistaat Bayern. Very small amounts of MON 810 maize DNA were also detected in a number of samples of Mr Bablok’s honey.
As he took the view that the presence of residues of genetically modified maize made his products unsuitable for marketing and for consumption, Mr Bablok brought legal proceedings against Freistaat Bayern before the German courts, in which four other amateur beekeepers joined.
The Bayerischer Verwaltungsgerichtshof (Bavarian Higher Administrative Court, Germany) observed that, once the disputed pollen is incorporated into the honey or pollen-based food supplements, it loses its capability to fertilise. That court seeks clarification as to the consequences of that loss. It has asked the Court of Justice, primarily, whether the mere presence, in the apicultural products in question, of genetically modified maize pollen which has lost its ability to reproduce has the consequence that those products may not be placed on the market without authorisation.
In its judgment delivered today, the Court observes, first, that the pollen in question may be classified as a GMO only if it is an ‘organism’ within the meaning of the directive and the regulation, that is to say, if it is a ‘biological entity capable’ either of ‘replication’ or of ‘transferring genetic material’. It holds in that regard that, since it is common ground that the pollen in question has lost all specific and individual ability to reproduce, it is for the referring court to determine whether that pollen is otherwise capable of ‘transferring genetic material’, taking due account of the scientific data available and considering all forms of scientifically-established transfer of genetic material.
The Court concludes that a substance such as pollen derived from a variety of genetically modified maize, which has lost its ability to reproduce and is totally incapable of transferring the genetic material which it contains, no longer comes within the scope of that concept.
The Court goes on to hold that, nevertheless, products such as honey and food supplements containing such pollen constitute foodstuffs which contain ingredients produced from GMOs within the meaning of the regulation. In that regard, it finds that the pollen in issue is ‘produced from GMOs’ and that it constitutes an ‘ingredient’ of the honey and pollen-based food supplements. As regards the honey, the Court observes that pollen is not a foreign substance or an impurity, but rather a normal component of honey, with the result that it must indeed be classified as an ‘ingredient’. The pollen in question consequently comes within the scope of the regulation and must be subject to the authorisation scheme provided for thereunder before being placed on the market.
The Court observes that that authorisation scheme for foodstuffs containing ingredients produced from GMOs applies irrespective of whether the pollen is introduced intentionally or adventitiously into the honey.
Lastly, the Court holds that the authorisation obligation exists irrespective of the proportion of genetically modified material contained in the product in question.
NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.
Unofficial document for media use, not binding on the Court of Justice.
The full text of the judgment is published on the CURIA website on the day of delivery.
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1) Directive 2001/18/EC of the European Parliament and of the Council of
12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC (OJ 2001 L 106, p. 1), as amended by Regulation No 1829/2003 and by Regulation (EC) No
1830/2003 of the European Parliament and of the Council of 22 September
2003 (OJ 2003 L 268, p. 24).
2) Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed (OJ
2003 L 268, p. 1).
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Item 2
PRESS RELEASE
06.09.2011
European Court of Justice: Honey containing pollen from genetically modified maize MON 810 must not be marketed – “zero tolerance“ for genetically modified material without approval
Today, the European Court of Justice issued a groundbreaking judgment (legal case C-442-09).
Honey containing pollen from genetically modified maize MON 810 needs an approval before being marketed because it is „genetically modified food“ in the sense of European genetic engineering law. With its decision, the highest European Court made clear that even tiniest traces of genetically modified (GM) material in food or feeding stuff demand a safety control and a special approval following genetical engineering law. Without an approval, it is illegal to market such food. According to the European Court of Justice, the strict standards now required are necessary to protect people’s health from the so far unknown risks of genetic engineering. The decision is important not only for beekeeping, but in general for the production of food and feeding stuff as well as for trade.
Information on the lawsuit: German beekepers went to German courts to demand protection against the unwitting input of pollen from GM modified maize MON 810 of the Monsanto company.
A laboratory found pollen from this maize in Karl Heinz Bablok’s honey. Bablok, who lives close to the south German town of Augsburg, is one of the litigating beekeepers. MON 810 is approved for its use in feeding stuff as well as in some processed food made from maize kernel (e.g. polenta). However, there is no approval for other food containing pollen of the crop.
The Bavarian Higher Administrative Court presented the case to the European Court of Justice. The latter now largely confirmed the beekeepers‘ legal opinion. Each food containing material from genetically modified plants is subject to European genetic engineering law. It is then food “made from genetically modified organisms“. This means that there must be a safety control and that an approval according to the European regulation on genetically modified food and feeding stuff (VO 1829/2003) is required. According to German law, an infringement of this can be chargeable. This is not only valid for honey and other food produced within the boundaries of the European union, but also for imports containing traces of material from genetically modified crops that don’t have sufficient approval within the EU.
The European Court of Justice contradicts the opinion of the European Commission, which claims that honey doesn‘t need a control nor an approval because the pollen came into the honey unwittingly and without human assistance.
According to the European Court of Justice, even smallest amounts of MON 810 pollen getting into the honey unwittingly make it a produce that must no longer be marketed. Nor was it sufficient that the Monsanto maize has an approval for being cultivated. In the court’s opinion, a comprehensive approval is necessary also for food with an input of this pollen.
Thus, the Court confirms the policy of “zero tolerance“ for traces of genetically modified material which does not have the approval necessary according to European law.
Following the judgment by the European Court of Justice, beekeepers now – depending on the individual case – may have a claim for damages against a farmer if MON 810 pollen from his cultivation gets into their honey. If the beekeeper can no longer sell his honey, this is considered a “major impairment“ causing a claim for damage. If the beekeeper moves his bees in order to prevent this impairment, it is also possible that the cultivator is liable for the additional work and expense of the beekeeper.
Whether the beekeepers also have a claim for protection (e. g. cutting off the panicles) depends on German genetic engineering law. In the case of beekeeper Bablok, the Augsburg administrative court, balancing the interests of both parties, ruled that there should be no such claims for protection. The Bavarian Higher Administrative Court as the second level of jurisdiction indicated that it might share this view.
According to their lawyers, GGSC from Berlin, the beekeepers do not have to tolerate the impairment. They have a claim to be protected from GMO cultivation. This is true especially for crops with pollen that can spread into a huge area without any means of control if cultivated in the open air. Thus, the pollen can get into food, and the risks going along with this have neither been thoroughly studied nor are they covered by an official approval. Crops like MON 810, which have such a gap of approval, are hardly „capable of co-existence“ and unbearable for traditional agriculture. Chances are that it is necessary to appeal to the Federal Administrative Court in order to prosecute the beekeepers‘ claim for protection.
Currently, it is prohibited in Germany to market MON 810; however, Monsanto have taken action for its renewed approval.
The beekeepers‘ case is pleaded for by Berlin lawyers GCC in the European High Court as well as in the Bavarian Higher Administrative Court. The German beekeepers‘ association Mellifera e. V. initiated the German "Alliance for the Protection of Bees against Genetic Engineering in Agriculture“, which supports the litigating beekeepers. Members of the Alliance are the umbrella organizations of German beekeepers as well as several associations of the German food economy.
Berlin, den 06.09.2011
Rechtsanwälte Dr. Achim Willand, Dr. Georg Buchholz Stralauer Platz 34
10243 Berlin
Tel. 030.726 10 26.0
berlin@ggsc.de; www.ggsc.de
Mellifera e.V.
Herrn Thomas Radetzki
Fischermühle
72348 Rosenfeld
Telefon 07428-9452494
Fax 07428-9452499
radetzki@mellifera.de; www.mellifera.de
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Item 3
Giant in genetic engineering stung by bees
6 September, 2011
European Court of Justice with groundbreaking decision in the interest of European consumers
Honey must be protected against pollution with pollen from genetically modified organisms
Food is considered genetically modified food in the sense of European genetic engineering law even if it contains only tiny traces of genetically modified organisms and must therefore not be marketed without a special safety control and approval. With its decision dating from September 6, 2011, the European Court of Justice clearly ruled in favour of European consumers as well as that of beekeepers. If their honey contains pollen from genetically modified (GM) crops, beekeepers are forced to destroy it. So far, they haven’t had any chance to be protected from genetic engineering in the vicinity of their beehives nor to get a compensation for their economic loss. Now it’s like David beating Goliath. Moreover, the judgment could cause many import honeys and other food to disappear from the shelves in European supermarkets.
Prior to the current decision was a legal battle going on for years. The lawsuit was initiated by the German Alliance for the Protection of Bees Against Genetic Engineering in Agriculture. The decision does not only concern honey, but comestibles in general throughout the European Union.
According to the European Court of Justice, the strict standards now required are necessary to protect people’s health from the so far unknown risks of genetic engineering. People in Germany as well as in Europe take a clear position against genetic engineering, too: In a recent survey made by the German Bundesamt für Naturschutz (Federal Agency for Nature Conservation), 87 per cent of all Germans clearly voted against genetic engineering in agriculture. They would even like its being completely prohibited.
Honey has long and rightfully been considered a very healthy and natural product. However, it has been endangered ever since the first fields with genetically modified crops like corn or rapeseed were allowed for test purposes. Bees don’t make any difference between blooms from natural and from genetically modified crops when they collect their pollen and nectar.
As a result, beekeeper Karl Heinz Bablok from the south German town of Augsburg took all of his honey to the local waste combustor in the autumn of 2009 – all because the Free State of Bavaria had planted a field with the Monsanto corn MON 810 close to his beehives. Monsanto is one of the biggest enterprises in genetic engineering. MON 810 contains an insecticide that caused a quarrel on its environmental impact between the German Federal Ministry of Consumer Protection, Food and Agriculture and Monsanto enterprise. If beekeeper Bablok had sold or even given away his honey for free, this would have been an offence against the law. Several German courts clearly saw the problem, but still would not grant him protection against contamination with genetically modified organisms.
Thanks to the financial and organisational support from the German Alliance for the Protection of Bees against Genetic Engineering in Agriculture, he now succeeded at the European Court of Justice – a success that should be very much welcome to all consumers in Europe.
The Alliance was initiated by Thomas Radetzki, manager of Mellifera e. V., an ecologically orientated beekeepers‘ association located in Rosenfeld in southern Germany. Apart from Mellifera, members of the Alliance are the German Association of Professional Beekeepers (Deutscher Berufs- und Erwerbsimkerbund), the German Beekeepers‘ Association (Deutscher Imkerbund), Demeter, Bioland, the Association for Producers of Ecological Food (Assoziation ökologischer Lebensmittelhersteller) and the Association of Ecological Food Industry (Bund Ökologischer Lebensmittelwirtschaft).
Radetzki’s satisfied comment on the court’s decision: “The small bee showed that it has a sting it can use – even against a giant in genetic engineering. Consumers have every reason to share our happiness about this groundbreaking decision! Now it is up to the Federal Government to act instead of blaming the European commission for the poor consumer protection. Chancellor Mrs. Merkel and Minister Mrs. Aigner now have to make sure that the regulation on the production of genetically modified crops dating from 2008 will get an effective addition concerning beekeepers‘ protection. Moreover, trade must take conspicuous honey from the shelves, and the Federal States must see to an effective food control.“
Currently German law prohibits marketing MON 810 Bt maize. At the same time, Monsanto wants to obtain its readmission in Germany. Luckily, the man in the street can very well fight for his interests by cooperating with others – just like bees in their hives do.
Kontakt
Mellifera e. V., Sabine Armbruster, sabine.armbruster@mellifera.de Tel.
0049-7428-945 249 22Gaßner, Groth, Siederer & Coll., Dr. Achim Willand, Dr. Georg Buchholz, berlin@ggsc.de Tel. 0049-30-7261026-0
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Item 4
EU Court Puts Limits on Modified Honey
Associated Press, September 6 2011
(http://abcnews.go.com/Business/wireStory?id=14456268)
BRUSSELS – Honey that contains traces of pollen from genetically modified crops needs special authorization before it can be sold, the European Union’s top court said Tuesday, in a judgment that could have widespread consequences on the bloc’s policy on genetically modified organisms, or GMOs.
The ruling from the European Court of Justice came after several Bavarian beekeepers demanded compensation from their government for honey and food supplements that contained traces of pollen from genetically modified maize.
The beekeepers had their hives close to fields where the Bavarian government was growing Monsanto’s MON 810 maize for research purposes.
The EU has strict guidelines on authorizing and informing consumers about foods containing GMOs — a policy that has caused problems for producers of genetically modified seeds such as U.S.-based Monsanto Co. that are used to much laxer rules in other parts of the world.
Environmental activists said Tuesday’s ruling will force the 17-country European Union to strengthen the rules even further.
"This is a victory for beekeepers, consumers and the movement for GM-free agriculture in Europe," Mute Schimpf, a food campaigner for Friends of the Earth Europe, said in a statement. "This ruling rewrites the rule book and gives legal backing to stronger measures to prevent contamination from the likes of Monsanto."
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Item 5
ECJ ruling on GM contamination blows hole in the myth of coexistence The Greens, 6 September 2011
(http://www.greens-efa.eu/ecj-ruling-on-gmos-4290.html)
The European Court of Justice (ECJ) today issued a groundbreaking ruling in a case concerning the contamination of honey with pollen from genetically modified crops (1). The court ruled that honey contaminated by pollen from a GM maize variety (MON810) cannot be sold on the market, as this maize has not been specifically authorised in honey. The case concerns German beekeepers, whose honey was contaminated by pollen from GM maize during field trials of GM maize from Monsanto. The Greens welcomed the ruling, which directly challenges the abandonment of the policy of zero tolerance for GMOs that have not been authorised in the EU (2). Commenting on the ruling Green MEP José Bové said:
"This case is proof that coexistence is a fallacy and that GM cultivation does not leave a choice for GM-free products. Permitting the cultivation of GM crops clearly leads to the contamination of non-GM crops and other foodstuffs like honey. Beekeepers are powerless to prevent the contamination of their honey by GM pollen, as farmers are for their crops, and thus powerless to prevent the tainting of the foodstuffs they produce and the integrity of their product. The only sure way to prevent this is by precluding the cultivation of GMOs."
Green MEP Bart Staes added:
"The biotech lobby always talks of freedom of choice, the question is freedom for whom? This ruling clearly underlines the need for EU regulation that would protect farmers, food producers and consumers against the contamination of their products from GM cultivation. Zero tolerance must mean just that: traces of GMOs, no matter how small, cannot be tolerated (2). The European Commission should revise its GM legislation to take account of the interests of consumers and food producers, and not the biotech industry.
"Beekeepers in the EU need their honey to be as high quality as possible, so they have an economic interest that GMOs and other kinds of contamination do not end up as traces in their honey. Today’s outcome could have far-reaching implications for the honey market, with EU countries importing honey from GM producing countries and two of the main EU honey-producing member states (Spain and Romania) having authorised the production of this GM maize.
Clearly, EU beekeepers should not be held responsible for the negative implications of the contamination of their honey."
(1) ECJ file available at
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=FR&Submit=Submit&numaff=C-442/09
(2) Recently adopted EU legislation on animal feed permitted traces of unapproved GMOs despite the absence of a full safety review.