The European Court of Justice (ECJ) has determined that member states cannot invoke the “precautionary principle” to restrict the cultivation and sale of crops developed from genetically modified organisms (GMOs) if the European Commission has not determined that the crops “are likely to constitute a serious risk to human health, animal health or the environment.” Case C-111/16, Italy v. Fidenato (E.C.J., entered September 13, 2017). The ruling responded to a request from an Italian court overseeing the prosecution of three farmers accused of growing GMO maize in violation of Italian law. The district court judge stayed the criminal proceedings to ask the ECJ whether Italy had the authority to ban the crop despite EC approval of its cultivation and sale.

In 2013, Italy asked the European Commission to adopt emergency measures allowing member states to apply a “precautionary principle” and implement risk-management measures where “the possibility of harmful effects on health is identified but scientific uncertainty persists.” In response, the European Commission asked the European Food Safety Authority (EFSA) to evaluate the scientific studies Italy had submitted in support of its request. Despite EFSA’s finding that the materials provided no new science-based evidence, the Italian government banned the defendant's GMO maize strain and criminalized its cultivation and sale.

The ECJ held that Italy and other member states cannot adopt emergency measures to restrict GMO crops unless a risk to life or health exists and scientific uncertainty about the crops’ safety persists; even in that instance, the restrictions must be proportionate and undergo review in “a reasonable period of time.” Member states can also implement emergency measures if the EC fails to act. But here, the court noted, the EC had already authorized the maize, and it was “clear and obvious that the European Commission has made the assessment that the substantive conditions for the adoption of emergency measures for food or feed are not met.”