Criminal proceedings against Giorgio Fidenato and Others.
Date: 2017-09-13
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Furthermore, as is clear from recital 1 of Regulation No 1829/2003, even if the free movement of safe and wholesome food and feed is an essential aspect of the internal market, a prohibition or restriction of the cultivation of GMOs authorised under Regulation No 1829/2003 and listed in the common catalogue pursuant to Council Directive 2002/53/EC of 13 June 2002 on the common catalogue of varieties of agricultural plant species (OJ 2002 L 193, p. 1) may be adopted by a Member State in situations expressly provided for under EU law (see, to that effect, judgment of 6 September 2012, Pioneer Hi Bred Italia, C‑36/11, EU:C:2012:534, paragraphs 63 and 70).
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In that regard, it should be recalled that Article 34 of Regulation No 1829/2003 permits a Member State to adopt emergency measures under that provision, subject to compliance not only with the substantive conditions laid down in that article but also with the procedural conditions provided for in Article 54 of Regulation No 178/2002 (see, to that effect, judgment of 8 September 2011, Monsanto and Others, C‑58/10 to C‑68/10, EU:C:2011:553, paragraphs 66 to 69).
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The procedural conditions are laid down in Article 54(1) of Regulation No 178/2002, which requires Member States, first, to ‘officially’ inform the Commission of the need to take emergency measures and, second, if the Commission has not adopted any measures pursuant to Article 53 of that regulation, ‘immediately’ to inform the Commission and the other Member States of the national interim protective measures which have been adopted. Accordingly, in the light of the urgent nature of the intervention of the Member State concerned and the objective of public health protection pursued by Regulation No 1829/2003, Article 54(1) of Regulation No 178/2002 must be interpreted as requiring that, in the event of an emergency, the Commission be informed no later than the time at which the emergency measures are adopted by the Member State concerned (judgment of 8 September 2011, Monsanto and Others, C‑58/10 to C‑68/10, EU:C:2011:553, paragraph 73).
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It follows that, at the stage of adoption and implementation by the Member States of the emergency measures referred to in Article 34 of Regulation No 1829/2003, as long as no decision has been adopted in that regard at Union level, the national courts before which actions have been brought to test the lawfulness of such measures have jurisdiction to assess the lawfulness of those measures, having regard to the substantive conditions provided for in Article 34 of Regulation No 1829/2003 and the procedural conditions laid down in Article 54 of Regulation No 178/2002, whilst the uniformity of EU law may be ensured by the Court of Justice under the preliminary ruling procedure since, if a national court has doubts as to the interpretation of a provision of EU law, it may, or must, in accordance with the second and third paragraphs of Article 267 TFEU, refer a question to the Court for a preliminary ruling (judgment of 8 September 2011, Monsanto and Others, C‑58/10 to C‑68/10, EU:C:2011:553, paragraph 79 and the case-law cited).
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By contrast, when the Commission has referred a matter to the Standing Committee on the Food Chain and Animal Health and a decision has been adopted at Union level, the factual and legal assessments relating to that case and contained in such a decision are binding on all bodies of the Member State which is the addressee of such a decision, in accordance with Article 288 TFEU, including national courts which are called on to assess the lawfulness of measures adopted at national level (see, to that effect, judgment of 8 September 2011, Monsanto and Others, C‑58/10 to C‑68/10, EU:C:2011:553, paragraph 80 and the case-law cited).
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On this point, the Court held, in paragraphs 76 and 77 of its judgment of 8 September 2011, Monsanto and Others (C‑58/10 to C‑68/10, EU:C:2011:553), that the terms ‘evidently’ and ‘serious risk’ within the meaning of Article 34 of Regulation No 1829/2003 must be understood as referring to a significant risk which clearly jeopardises human health, animal health or the environment. That risk must be established on the basis of new evidence based on reliable scientific data. Protective measures adopted under Article 34 of Regulation No 1829/2003 cannot validly be explained on a purely hypothetical approach to the risk based on mere assumptions which have not yet been scientifically verified. On the contrary, such protective measures, notwithstanding their temporary nature and even if they are preventive in nature, may be adopted only if they are based on a risk assessment which is as complete as possible in the particular circumstances of the individual case, which indicate that those measures are necessary.