On 6 September 2012, the Court of Justice of the European Union (CJEU) issued an important ruling in a case referred to it by Italy’s highest administrative court, the Consliglio di Stato.1 At the heart of the dispute was an Italian measure making the cultivation of an EU-authorized genetically modified (GM) maize variety conditional upon the adoption of local rules concerning the coexistence of organic, traditional and GM crops.

The CJEU held that Member State authorities cannot take measures prohibiting the cultivation of GM crops where those crops have been authorized for this purpose under EU law.2

The CJEU ruled that the only limitations that could be imposed on EU-authorized products are those set out in EU legislation, such as emergency measures pursuant to Regulation 1829/2003 or measures to avoid the unintended presence of GM material in other products (i.e. coexistence measures). In this case, the Italian measure did not impose coexistence measures, nor correspond to any permitted limitation in EU legislation, but made the cultivation of the GM crops unlawful pending the adoption of coexistence measures.

The CJEU admitted that while coexistence measures themselves can impose restrictions on the cultivation of GM crops, a Member State cannot further delay or restrict the cultivation of EU-authorized GM crops on the grounds that coexistence measures are pending. Once a product has been authorized at EU level, the benefits of free movement must be immediate.

The CJEU’s ruling is highly significant because it confirms that Member States cannot impose purely national bans on GM crops, outside the EU legislative framework. Companies that face legal hurdles in Member States when attempting to market or cultivate GM crops that are authorized at EU level should accordingly re-evaluate their position in light of the ruling, initiate or re-ignite dialogue with national authorities accordingly, or prepare for court action as appropriate.

Also, the CJEU’s ruling impliedly confirms that coexistence measures are not mandatory, and that – absent such measures – EU-authorized GM crops can be lawfully cultivated immediately following an EU authorization. This gives operators the opportunity to begin cultivation with their own containment measures, without having to wait until national authorities implement coexistence rules.