EU court set to rule on whether new GMOs fall under existing law
Brussels – Media reports in Belgium have exposed an unauthorised field trial of an experimental genetically modified maize in Flanders, preempting a ruling on the classification of a new brand of genetically modified organisms (GMOs) by the European Court of Justice on Wednesday.
Authorities in Belgium took a similar approach to the UK, Finland and Sweden in advising that certain plants created with a genetic engineering technique known as CRISPR do not fall under EU GMO law.
The European Court of Justice will rule whether or not GMOs produced through so-called gene editing techniques, such as CRISPR, are covered by EU GMO law or fall under an exemption reserved for so-called “mutagenesis” techniques (case C-528/16). 
The European Commission has warned European governments against authorising the deliberate release of such organisms in the absence of a harmonised EU approach, but has so far failed to issue any guidelines.
Greenpeace EU food policy adviser Franziska Achterberg said: “The European Commission must make it clear that countries cannot unilaterally exempt new GMOs from EU rules. By taking a hands-off approach, the Juncker Commission is allowing potential contamination of the environment and the food chain by these experimental GMOs, undermining farmers, retailers and consumers who want to go GMO free. It has effectively raised hopes in the biotech industry that it is possible to circumvent the law.”
Scientists have warned that CRISPR can, just like conventional genetic engineering, cause unwanted DNA damage with potentially dangerous side effects. A recent article in Nature also argued that gene-editing “may have pathogenic consequences” in humans. NGOs and farmers have called for EU GMO law to be applied to all GMOs, new and old, to ensure risk assessment, traceability and labelling of GMO products.
During the last few years, several European governments have claimed that GMOs produced through gene editing techniques are not covered by GMO law.
In November 2015, the Swedish Board of Agriculture advised that CRISPR-edited plants were not GMOs, as long as any foreign genetic material was bred out. In May 2016, Finnish authorities gave similar advice. This advice ignored the Commission’s June 2015 warning not release new GMOs into the environment, without safeguards reserved for GMOs.
In October 2016, it became known that the European Court of Justice would rule on the issue in response to a question by the French Conseil d’État. Nevertheless, Belgium and the UK went ahead with their own interpretation of EU GMO law and told researchers of the Flemish Institute for Biotechnology and Rothamsted Research that certain GM plants did not fall under EU GMO law, thereby pre-empting the court decision.
 In January 2018, the Advocate-General advised the EU court that mutagenesis exemptions must “not involve the use of recombinant nucleic acid molecules”, or GMOs that are currently regulated under GMO law. The Belgian plants were bred from genetically modified maize and were engineered with the use of recombinant nucleic acid molecules.
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