THE IMPACT OF THE RECENT ECJ RULING ON PLANT BREEDING INNOVATION. BY: MARCEL BRUINS A GREAT LOSS FOR EUROPE T he ruling of the European Court of Justice subjecting some of the most promising of the latest breeding meth- ods to the EU’s rules and regulations for GMOs is THE talk of the town amongst the plant breeding and even wider agricultural community. We sat down with Garlich v. Essen, Secretary General of the European Seed Association (ESA), to discuss its consequences and impact. EUROPEAN SEED (ES): LOOKING AT THE INTERNATIONAL MEDIA REACTIONS AND PUBLISHED STATEMENTS, IT SEEMS THE ECJ’S RULING APPARENTLY HAS COME AS A BIG SURPRISE TO MOST OBSERVERS. GARLICH VON ESSEN (GvE): That is true. I think it is fair to say that many expected the Court to follow the opinion of its Advocate General Bobeck who had taken a very different approach in his interpretation of the relevant EU Directive. In most of the cases, that is what the Court does: follow the Advocate General and add further details. And of course, the intervening Member States like the UK or Sweden as well as three EU institutions, foremost the EU Commission, basically all argued that a differentiated view should be taken. But the Court in the end opted for a very static interpretation of the letter of the law rather than a forward looking, more dynamic one as suggested by the Advocate General and others. It took an extremely conservative, legalistic approach. You could call it playing it safe. ES: WHAT DIRECTION OF REGULATORY CLARIFICATION WAS THE INDUSTRY THEN HOPING FOR? GvE: The seed sector in Europe had hoped for a clarification that finally acknowledges that these technologies can be applied in different ways, leading to different results that may be, and in fact should be, treated differently by the regulator. While some lead to a regulated GMO, others do not. This differentiation can only be made when we do not solely look at technologies but also consider the final outcome of the process, i.e. the final plant product. It is the approach most other countries all over the world are now following as they realise that the rather simplistic approaches of the old GM rules are not fit for purpose for the next era of plant breeding innovation. Unfortunately, the judges overturned the opinion of Advocate General who had proposed exactly such a more differentiated, more end result-oriented interpretation of the EU legislation. 8 I EUROPEAN SEED I EUROPEAN-SEED.COM