The European Commission has decided to refer France to the European Court of Justice a second time for failure to comply with a judgement by the Court from 2003 over biotechnology legislation. Despite the Court ruling and subsequent warnings from the Commission, France has still only adopted partial national legislation to give effect to an EU law on the safe handling of genetically modified micro-organisms. This law aims at protecting the environment and human health against potential dangers of biotech laboratory experiments where such organisms are used. The Commission will also ask the Court to impose a daily fine of €168 800 on France to apply from the day of a second judgement by the Court in this matter.

In spite of a judgement delivered by the European Court of Justice on 27 November 2003, France has failed to correctly and fully transpose the Directive on the contained use of genetically modified micro-organisms (GMMs)^[1] into national law. Following the judgement, the Commission has sent several letters to the French authorities reminding them of the need to ensure that a system for the safe use of GMMs is put into place. As foreseen under the EU Treaty, the Commission will ask the Court to impose a daily financial penalty on France. It proposes a daily sum of €168 800.. The penalty would be finally set by the Court and would apply from the day France is condemned by the Court of Justice for a second time in this case.

The GMM Directive

The GMM Directive regulates research and industrial activities involving, for example, genetically modified viruses or bacteria under conditions of containment, such as in laboratories.

In its national legislation, France has failed to ensure:

• that emergency plans are drawn up for the nearby population in the event of an accident,
• that emergency services are made aware of the hazards,
• that the public is informed about the safety measures in place and the correct behaviour to adopt in case of accident,
• that information which may harm the competitive position of the company applying for authorisation may be kept confidential.

France has also failed to transpose the Directive in respect of certain uses by the ministry of defence.

Legal Process

Standard procedure

Article 226 of the Treaty gives the Commission powers to take legal action against a Member State that is not respecting its obligations.

If the Commission considers that there may be an infringement of EU law that warrants the opening of an infringement procedure, it addresses a "Letter of Formal Notice" (first written warning) to the Member State concerned, requesting it to submit its observations by a specified date, usually two months.

In the light of the reply or absence of a reply from the Member State concerned, the Commission may decide to address a "Reasoned Opinion" (final written warning) to the Member State. This clearly and definitively sets out the reasons why it considers there to have been an infringement of EU law and calls upon the Member State to comply within a specified period, normally two months.

If the Member State fails to comply with the Reasoned Opinion, the Commission may decide to bring the case before the European Court of Justice. Where the Court of Justice finds that the Treaty has been infringed, the offending Member State is required to take the measures necessary to conform.

‘Follow-up’ procedure

Article 228 of the Treaty gives the Commission power to act against a Member State that does not comply with a previous judgement of the European Court of Justice, again by issuing a first written warning (“Letter of Formal Notice”) and then a second and final written warning (“Reasoned Opinion”). The article then allows the Commission to ask the Court to impose a financial penalty on the Member State concerned.

For current statistics on infringements in general see:
http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm#infractions

For rulings by the European Court of Justice see:
http://curia.eu.int/en/content/juris/index.htm