The European Commission can authorise genetically modified organisms such as maize, yet Rome, Warsaw or Bucharest may still forbid its cultivation. The ruling by European Court of Justice tilts the balance of power away from Brussels. Hopes for more unity, along with associated prosperity, are collateral damage.
The Court of Justice of the EU shook the biotech lobby on 5 February when it blessed Italy’s decade-old ban on planting MON 810 maize. The joined cases, C-364/24 and C-393/24, pitted Giorgio Fidenato, a Friulian farmer, against the Ministry of Agriculture, Food Sovereignty and Forestry.
Mr Fidenato wanted to grow a crop authorised at EU level since 1998. Rome wanted it out of Italian fields. Luxembourg sided with Rome and, in doing so, redrew the line between EU authorisation and national control.
The directive is legal
Thomas von Danwitz, the Court’s vice-president, read the operative part in open court. “Examination of the questions referred for a preliminary ruling has not revealed any factor of such a kind as to affect the validity of Article 26(4)(R)(1) and (3) of Directive 2001-18 of the European Parliament and of the Council, as amended, or the validity of Commission Implementing Decision 2016-321.” With that sentence he upheld the legal device that lets member states carve their territory out of a Union-wide approval.
Mr Fidenato is no stranger to Luxembourg. Since 2010 he has sowed MON 810 in defiance of successive Italian bans and has seen his crops cut and his wallet lightened. The present dispute began when officials destroyed his 2021 harvest and fined him €50,000. Italian courts asked whether the 2015 “opt-out” directive—Directive 2015/412, which lets governments ban GM cultivation for socio-economic or land-use reasons—was itself compatible with Treaty principles. The Court has now said it is.
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The judgment endorses the opt-out model in full. GMO approvals stay centralised in Brussels, but governments may slam the farm gate on their own soil without producing fresh scientific evidence.
Seeds of sovereignty…
The ruling also answers the market question. A cultivation ban plainly curbs the free movement of goods, yet the judges deem the restriction proportionate because it pursues objectives recognised by Directive 2015/412, such as environmental protection or social policy. Harmonisation, the Court signals, can live with territorial vetoes when the legislature has planned for them.
Mr Fidenato argued that the ban trampled his freedom to conduct a business. The Court brushed that aside, calling the interference limited. Cultivation of one maize strain, it reasoned, is only a slice of farming. In Brussels, officials read the decision as a licence to stop policing national bans and to concentrate on procedure instead. If a government files its opt-out notification correctly, the Commission will wave it through.
Politically the ruling opens new ground for member states. Those wary of public anger at “Frankenfood” now have firm legal cover. Expect more capitals to notify carve-outs, especially as the Union moves toward looser rules for gene-edited crops. Companies must cope with a patchier landscape. A variety legal in one country may remain illegal next door. Market entries will need fresh risk assessments about where to plant and how to segregate harvests.
…and a harvest of consequences
Legislators drafting the forthcoming law on new genomic techniques face a tighter corner. They hope to speed innovation by easing authorisation, yet they must now reckon with courts that smile on national bans. A framework that is light on paperwork at EU level but heavy on territorial vetoes may please cautious voters while frustrating plant-science firms. Still, the ruling at least ends years of legal doubt. Everyone now knows the rules of the game.
Echoes of earlier fights resonate. In 2017 the same Mr Fidenato lost a case in which he challenged an emergency Italian ban; the Court said Rome lacked new scientific data. France had a similar scolding in the Monsanto France judgment. Those defeats prompted the opt-out directive, which today passes its first real test.
A later case, Pioneer Hi-Bred, confirmed that procedural slips in Brussels do not automatically erase national prohibitions. The latest judgment welds these strands into a sturdier doctrine: if the legislature gives capitals a switch, Luxembourg will rarely turn it off.
Fields to watch
The Commission, freed from refereeing quarrels over MON 810, will pivot to the wider overhaul of GMO law expected in late 2026. It wants a single system that treats gene-edited plants differently from transgenic ones. Yet national opt-outs are now part of the constitutional furniture. The drafters must build around them, perhaps by tightening the notification timetable or by requiring governments to renew bans periodically.
Mr Fidenato vows to keep fighting, though future odds look steep. Italian prosecutors can now use the Court’s imprimatur to levy bigger penalties. Whether the state keeps mowing illicit crops is another matter; enforcement costs money and invites cameras. Still, Luxembourg has spoken. A farmer may prefer a different reading of the Treaties, but the Union’s highest court has delivered one that binds every judge below.
Europe has thus confirmed a two-tier compromise: Brussels can authorise a GMO, yet Rome—or Warsaw or Vienna—may still forbid its cultivation. That arrangement pleases publics wary of biotech while letting traders import GMO feed for livestock. It is untidy, but it endures. Innovation will proceed, albeit in uneven furrows. For now the message is clear: the Union allows biotech, but sovereignty grows in the soil beneath each member state’s flag.
