1 Colum. J. Eur. L. 530 (1995)

Piet Van Nuffel. Fellow of the Belgian National Foundation for Scientific Research, Institute for European Law, Katholieke Universiteit Leuven.

Legislation on organic production of agricultural products; Respective powers of the Council and the Commission; Prerogatives of the European Parliament

Facts and procedure

Environmental concerns taking root in ever larger parts of the consumer population, there is an increasing demand for organically produced agricultural products and foodstuffs. Organic farming constitutes a specific form of production entailing significant restrictions on the use of fertilizers and pesticides. Some Member States have laid down rules to ensure consumers willing to pay more for “organic,” “biological,” or “ecological” products, that these products have been produced organically or without the use of synthetic chemicals. To ensure conditions of fair competition between the producers of such products and to give the market for organic products a more distinctive profile by ensuring transparency at all stages of production and processing, the Community wanted to enact common rules on the production, labelling and inspection of these products. One of the sensitive issues in this context was the restriction in the use of organically produced products and foodstuffs of genetically modified micro-organisms (“GMMOs”). In 1990, Council Directive 90/220 had already established, on the basis of Article 100a of the EC Treaty, a system of prior notification of the use of products containing GMMOs to the competent authorities of the Member States, and of authorization by those authorities or, in certain circumstances, by the Commission”. Council Regulation of June 24, 1991 which laid down common rules on organic production of agricultural products, however, did not mention GMMOs. Article 5 of the Regulation provided that, in principle, the labelling of organic products intended for human consumption may only make reference to organic production methods if all the ingredients of agricultural origin in the product satisfy certain production rules; if the product contains, as ingredients of non-agricultural origin, only certain substances listed in Annex VI and has not been subject to treatments listed in the same annex, and if it has been prepared by an operator who is subject to the Regulation’s inspection measures. Article 5(7) of the Regulation empowers the Commission to establish detailed rules for the implementation of the conditions laid down in Article 5. The Commission may adopt these measures if they are in accordance with the opinion of a committee composed of representatives of the Member States. Article 5(8) states that exhaustive lists of the substances and products referred to in Article 5 are to be established in Annex VI to the Regulation according to the same procedure.

When consulted on the Commission’s proposal for this Regulation, to be adopted on the basis of Article 43 of the EC Treaty, the European Parliament had proposed to prevent every reference to organic production in labelling if GMMOs were included in the product or in its method of production. On that occasion, the Commission announced that it did share the Parliament’s concern to exclude the use of GMMOs in organic farming, but that use of the GMMOs were not even authorized in conventional farming yet, and that any provision on GMMOs would require more technical study. Consequently, the Commission did not accept Parliament’s amendment but assured the Parliament vaguely “that the technical work [would] be started so that an appropriate ruling [could] be examined and developed for the organic farming context as soon as possible.

On January 29, 1993, the Commission adopted a Regulation on the basis of Article 5(7) and (8) of the basic Council Regulation. The Commission Regulation indicated the ingredients and processing aids which are permitted to use in organic food (Annex VI). Sections A.4(i) and B(i) of Annex VI exclude preparations of “micro-organisms genetically modified within the meaning [of Council Directive 90/220],” but mention in a second paragraph the same GMMOs “if they have been included according to the decision procedure of Article 14.” The latter decision procedure is the procedure referred to above, which applies to the adoption by the Commission of measures implementing Article 5 of the “basic” Council Regulation. Introducing these formulas, the Commission did not permit the use of GMMOs in the production or processing of organic food, but already specified that they might be included in the lists under the procedural and substantial conditions indicated in the basic Regulation. The European Parliament strongly protested against the way GMMOs were thus brought into the annex indicating the non-agricultural ingredients and substances that were allowed in organic foodstuffs. Contesting the validity of the Commission Regulation, it brought an action for annulment before the Court of Justice on April 16, 1993.