The 2017 Fidenato case and the 2015 Directive: The curious case of GMOs in Europe

• Author: Alessandra Guida
• Published date: 01 July 2020
• DOI: http://doi.org/10.1111/reel.12325
• Date: 01 July 2020

RECIEL. 2020;29:291–300. wileyonlinelibrary.com/journal/reel  

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  291© 2020 John Wile y & Sons Ltd

1 | INTRODUCTION

In the 2017 Fidenato case, the Cour t of Justice of the Euro pean

Union (CJEU) dec ided in favour of a farm er, Giorgio Fidenato, al-

lowing him to cultivate genetically modified (GM) Maize 810, de-

spite the implementation of a national decree prohibiting such

cultivation in Italy.1 This is not the first cas e in which a governmen-

tal request to b an the cultivation of genet ically modified org anisms

(GMOs) in light of the pre cautionary prin ciple has been rejected by

the Court of Jus tice. Already in 2 007, Austria provided noti ce to

the European Co mmission about a draft l aw of Upper Austria (Lan d

Oberösterreich) regarding a ban that aimed to prohibit the cultiva-

tion of seed and pl anting material comp osed of, or containing ,

GMOs and the bre eding and releas e of transgenic animal s.2 The

ban aimed to safeg uard the environment a nd natural biodivers ity of

the province of Upp er Austria from the harmful ef fects of GMOs.

However, the Austrian gove rnment was denied i ts request to ban

GM cultivation s on the province of Uppe r Austria mainly b ecause

the Court of Jus tice assessed th e national reques t to be scientifi-

cally unfounded.3

By contrast, Fidenato was t he first case to be d ecided by the

Court of Just ice after the ad option of Directi ve 2015/412, which

allows Member St ates to ‘restrict o r prohibit the cult ivation of ge-

netically modified organisms (GMOs) in their territory’.4 To date,

there are no stu dies analysing the Fidenato case in light of t he 2015

Directive. T he reason might lie in th e fact that this c ase does not

concern measur es adopted on the legal basis of t he Directive’s new

Article 26b. Fur thermore, the Directive , which was invoked by the

Italian governm ent to support it s request, coul d not apply ratione

temporis to the Fidenato case.5 These are arguably also the reasons

why the Court of J ustice did not apply t he 2015 Directive to t he

2017 ca se.

 1Case C-111/16 , Giorgio Fidenato and Others, ECLI:EU:C:2017:676 (Fidenato).

 2Joined Case s 439/05 P and 454/05 P, Land Ober österreich an d Republic of Aus tria v

Commission of the European Communities, ECLI:EU:C:2007:510 (Austrian case) pa ra 6.

 3ibid paras 66 a nd 74.

 4Directive ( EU) 2015/412 amending Dir ective 2001/18/EC a s regards the pos sibility for

the Member St ates to restri ct or prohibit t he cultivatio n of genetically m odified

organisms (G MOs) in their ter ritory [2015] OJ L68/1 (D irective 2015/412) ar t 26b.

 5While the 2015 D irective ente red into force onl y in April 2015, th e Italian prohi bition

dates back to Ju ly 2013.

Received: 27 Sept ember 2019 

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  Revised: 12 Febru ary 2020 

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  Accepted: 20 Febru ary 2020

DOI: 10 .1111/reel .12325

ORIGINAL ARTICLE

The 2017 Fidenato case and the 2015 Directive: The curious

case of GMOs in Europe

Alessandra Guida

Correspondence

Email: alessandra.guida@mq.edu.au The 2017 Fidenato case is the first leg al dispute on the cultivatio n of genetically

modified organi sms (GMOs) decided by the Cour t of Justice of the European Union

after the adoptio n of Directive 2015/412. The Directive allows for th e exclusion of

genetically modi fied cultivation from a n ational territory on g rounds unrelated to

scientific uncer tainty. As in the 2007 Austrian ca se, in Fidenato the Court of Justice

rejected the pre cautionary req uest from Italy to ban t he cultivation of GMOs. T he

ruling centres on the a rgument of a ban being scient ifically unfounded . This article

discusses how the lack of h armonization betwe en the European jurispr udence on

the cultivation of GMOs and recent normative amendments introduced through the

2015 Directive affe cts the regulatory auto nomy of Member States in adopting mea s-

ures that ensure the pr otection of human health and the environ ment (i.e. biosafety)

from the potential har mful effects posed by GMOs.