Abstract
This chapter examines the legal framework applicable to genetically modified organisms (GMOs) in Ireland, bearing in mind the limited presence of GMOs. Overall, Ireland holds varying stances to different forms of GMOs, with the greatest acceptance and use of GM-feed for pragmatic reasons. It has not developed a specific Irish approach, instead copy-pasting EU legislation and relying upon existing law to deal with any issues. This is understandable in light of the high level of harmonization and limited presence of GMOs in Ireland, but nonetheless will need to be developed as the availability of GMOs increases.
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Notes
- 1.
E.g. J Tait and G Barker, ‘Global food security and the governance of modern technologies’ (2011) 12:8 EMBO Reports, 763; M McGloughlin, Ten reasons why biotechnology will be important in the developing world’ in R Sherlock and JD Morrey (eds), Ethics in Biotechnology (Rowman and Littlefield Publishers, 2002); MA Altieri and P Rosset, ‘Ten reasons why biotechnology will not ensure food security, protect the environment, or reduce poverty in the developing world’ in Sherlock and Morrey; M Qaim, ‘Benefits of genetically modified crops for the poor: household income, nutrition and health’ (2010) 27:5 New Biotechnology, 552; and H Azadi and P Ho, ‘Genetically modified and organic crops in developing countries: A review of options for food security’ (2010) 28:1 Biotechnology Advances 160.
- 2.
The ICESCR contains numerous rights, including ones related to an adequate standard of living (Article 11) and therefore ‘adequate food’ (Article 11, para 1) and ‘freedom from hunger’ (Article 11, para 2). The right to adequate food is considered by the Committee to be fulfilled ‘when every man, woman and child, alone or in community with others, have physical and economic access at all times to adequate food or means for its procurement’. Committee on Economic, Social and Cultural Rights, 1999, General Comment 12: The Right to Adequate Food, UN Doc. E/C/12/1999/5, available at: http://www.unhchr.ch/tbs/doc.nsf/0/3d02758c707031d58025677f003b73b9
- 3.
- 4.
- 5.
- 6.
- 7.
http://www.president.ie/speeches/facing-the-challenge-of-feeding-the-hungry-of-the-world/ . It should be noted that, whilst an important political statement, the President does not have powers regarding the creation or implementation of law and nor do his views bind the legislative or executive.
- 8.
FAO, An Introduction to the Basic Concepts of Food Security, 2008: http://www.fao.org/docrep/013/al936e/al936e00.pdf
- 9.
Other relevant provisions include Articles 40 and 43 regarding property rights.
- 10.
E.g. T.D. v Minister for Education [2001] 4 IR 259.
- 11.
Although strong criticism exists in relation to its efforts in Ireland in practice, e.g. EA Dowler and D O’Connor, ‘Rights-based approaches to addressing food poverty and food insecurity in Ireland and UK’ (2012) 74:1 Social Science and Medicine 44.
- 12.
For further discussion of the issues of food poverty and food (in)security in Ireland, see for example: S Friel and C Conlon, Food Poverty and Policy, (2004) Combat Poverty Agency, available at: http://www.cpa.ie/publications/FoodPovertyAndPolicy_2004.pdf; and D O’Connor, S Cantillon and J Walsh, Rights-Based Approaches to Food Poverty in Ireland, (2011) Combat Poverty Agency, available at: http://www.cpa.ie/publications/workingpapers/2011-01_WP_RightsBasedApproachesToFoodPoverty.pdf
- 13.
E.g. ‘An Action Programme for the Millennium’, (2000) Department of the Taoiseach, available at: http://www.taoiseach.gov.ie/eng/Publications/Publications_Archive/Publications_for_2000/actionprogprogressyear3jul2000.pdf at 33.
- 14.
- 15.
E.g. Department of Agriculture, Fisheries and Food, ‘Brief for Minister for Agriculture, Fisheries and Food’, March 2011, available at http://www.agriculture.gov.ie/media/migration/publications/2011/briefforministermarch2011/Chapter%204%20Main%20Brief%20Part%201.pdf at 54–6.
- 16.
E.g. ‘Brief for Minister for Agriculture, Fisheries and Food’, ibid at 62.
- 17.
Watson v EPA and Monsanto, judgment of O’Sullivan J, 6 October 1998.
- 18.
EPA website: http://www.epa.ie/pubs/reports/other/gmo/field/EPA_gm_potato_field_trial.pdf. Consent for notification no. B/IE/06/01, GMO Register Number 208, dated 4th May 2006.
- 19.
EPA website: http://www.epa.ie/licensing/gmo/fieldtrial/. Consent for notification no. B/IE/12/01, GMO Register No. G0469-01, dated 25th July 2006.
- 20.
Map and details of self-declared GM-free areas in Ireland in 2010: http://www.gmfreeireland.org/map/index.php
- 21.
Directive 2015/412/EU of the European Parliament and of the Council of 11 March 2015 amending Directive 2001/18/EC as regards the possibility for the Member States to restrict or prohibit the cultivation of genetically modified organisms (GMOs) in their territory, [2015] OJ L68/1.
- 22.
Council of the EU, Progress Report on a Proposal for a Regulation of the European Parliament and of the Council amending Directive 2001/18/EC as regards the possibility for the Member States to restrict or prohibit the cultivation of GMOs in their territory, 2010/0208 (COD), Brussels, 3 June 2012, available at: http://register.consilium.europa.eu/pdf/en/12/st10/st10883-re01.en12.pdf at 5.
- 23.
Council of the EU, ‘Genetically Modified Organisms-A Way Forward-Information from the Austrian delegation’, Brussels, 24 June 2009, 11226/2/209 REV 2, http://register.consilium.europa.eu/pdf/en/09/st11/st11226-re02.en09.pdf
- 24.
List of GMOs authorised for GM food and feed products in EU and therefore in Ireland, available at http://ec.europa.eu/food/dyna/gm_register/index_en.cfm
- 25.
‘Brief for Minister for Agriculture, Fisheries and Food’ (n15), at 110.
- 26.
‘Brief for Minister for Agriculture, Fisheries and Food’, (n15), at 110.
- 27.
‘Brief for Minister for Agriculture, Fisheries and Food’, (n15), at 56.
- 28.
Regulation 619/2011/EC of 24 June 2011 laying down the methods of sampling analysis for the official control of feed as regards presence of genetically modified material for which an authorisation procedure is pending or the authorisation of which has expired, [2011] OJ L166/9.
- 29.
For discussion on labeling, see section “Labelling” below.
- 30.
- 31.
- 32.
‘European Communities—Measures Affecting the Approval and Marketing of Biotech Products’, WT/DS291/R, WT/DS292/R and WT/DS293/R, DSR 2006:III, 847.
- 33.
It should be noted that these focus on the release of GMOs in to the environment, rather than specifically upon GM food or feed.
- 34.
Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC, [2001] OJ L106/1.
- 35.
Regulation 1829/2003/EC of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed, [2003] OJ L268/1.
- 36.
Regulation (EC) No 1830/2003 of the European Parliament and of the Council of 22 September 2003 concerning the traceability and labelling of genetically modified organisms and the traceability of food and feed products produced from genetically modified organisms and amending Directive 2001/18/EC, [2003] OJ L268/24.
- 37.
Genetically Modified Organisms (Deliberate Release) Regulations 2003, S.I. No 500/2003.
- 38.
European Communities (Feeding stuffs) (Genetically Modified Feed) Regulations 2004, S.I. No 424/2004.
- 39.
European Union (Genetically Modified Foodstuffs) Regulations 2013, S.I. No 268/2013.
- 40.
More generally see: http://www.fsai.ie/legislation/food_legislation.html
- 41.
Regulation 178/2002/EC laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety, [2002] OJ L31/1.
- 42.
European Communities (General Food Law) Regulations 2007 (as amended), S.I. No 747/2007.
- 43.
European Communities (Labelling, Presentation and Advertising of Foodstuffs) Regulations 2002, S.I. No 424/2008.
- 44.
European Community (Food and Feed Hygiene) Regulations 2009, S.I. No 312/2010.
- 45.
Council Regulation 834/2007/EC on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91, [2007] OJ L189/1.
- 46.
European Communities (Organic Farming) Regulations 2004, S.I. No 698/2007.
- 47.
E.g. Section 52 of the Environmental Protection Agency Act, 1992 includes a requirement for the EPA to ‘have regard to the need for precaution’ but this only applies to the potentially harmful effect of emissions where there are ‘reasonable grounds for believing that such emissions could cause significant environmental pollution’ rather than human health/food law independently.
- 48.
Article 29.4.6 of the Irish Constitution (Bunreacht na hÉireann) provides that nothing in the Irish Constitution ‘invalidates laws enacted, acts done or measures adopted by the State’ that are necessary as members of the EU. Furthermore, each Treaty amendment has involved a constitutional referendum and thereby constitutional amendment. Consequently, it makes a constitutional challenge to resulting EU law extremely challenging, e.g. B de Witte, ‘Direct Effect, Primacy, and the Nature of the Legal Order’ in P Craig and G de Búrca (eds), The Evolution of EU law, (2nd edn, OUP, 2011) at 355.
- 49.
E.g. cases such as Case C-26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1; Case C-6/64 Costa v ENEL [1964] ECR 585; Case C-11/70 Internationale Handelsgesellschaft v Einfuhr- und Vorratstelle fűr Getreide und Futtermittel [1970] ECR 1125; and C-106/77 Simmenthal II [1978] ECR 629. Also e.g. de Witte, ibid; and N Foster, EU Law Directions, (3rd edn, OUP, 2012) at Chapter 5.
- 50.
E.g. Article 191 TFEU contains prevention and precaution in relation to the environment (but with mention of health and Article 11 requires environmental protection components to be integrated across EU law); Case T-147/00 Laboratoires Servier v Commission [2003] ECR II-85, para 52; Joined Cases T-74/00, T-76/00, T-83/00, T-84/00, T-85/00, T-132/00, T-137/00, & T-141/00, Artegodan GmbH v. Commission [2002] ECR 11–4945, para 184; and Case C-132/03 Ministero della Salute v Coordinamento delle Associazioni per la Difesa dell’Ambiente e dei Diritti degli Utenti e dei Consumatori (Codacons) [2005] ECR I-416, para 35. Proportionality has long been accepted as a general principle of EU law: Case C-11/70 Internationale Handelsgesellschaft [1970] ECR 1125.
- 51.
Article 7 deals with the precautionary principle directly, whilst prevention can be seen `throughout the Regulation. Similarly proportion is reflected in various elements of the Regulation, including regarding the precautionary principle and in relation to national enforcement of the Regulation.
- 52.
A Doyle and T Carney, ‘Precaution and Prevention: Giving Effect to Article 130r Without Direct Effect’ (1999) 8 European Environmental Law Review 44.
- 53.
Rylands v Fletcher (1868) LR 3 HL 330.
- 54.
Regulation 641/2004 dealt with implementing Regulation 1829/2003 and provided for transitional measures regarding GMOs that had received favourable risk evaluations.
- 55.
On the regulation of GMOs in Ireland and the EU, see generally: M Lee, EU Regulation of GMOs-Law and Decision Making for a new Technology (Edward Elgar, 2008), although somewhat amended since then.
- 56.
E.g. Article 27 provides for an application relating to both GM food and feed simultaneously. Articles 5 and 17 provide for consideration of environmental and other issues arising from deliberate release, facilitating authorization under Part C of the Deliberate Release Directive, i.e. authorization for cultivation.
- 57.
Article 4 of the 2004 GM Feed Regulations. Article 6 of the 2013 GM Food Regulations.
- 58.
In other words, the authorisation system is greatly reliant upon the information and initial assessment provided by the notifiers themselves.
- 59.
Article 3 of the 2004 GM Feed Regulations and Articles 5 and 17 of Regulation 1829/2003.
- 60.
Articles 6 and 18 of Regulation 1829/2003.
- 61.
Although Regulation 1829/2003 does not expressly refer to these principles, Article 1 notes that the objective of the Regulation is to be achieved ‘in accordance with the general principles’ in Regulation 178/2002.
- 62.
Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, [2011] OJ L55/13.
- 63.
E.g. Articles 30, 41, 42 and 43 of the 2003 Deliberate Release Regulations. The GM Feed and GM Food Regulations do not impose such requirements directly, but they refer to the obligations in Regulations 1829/2003 and 1830/2003. Articles 5, 12, 13, 17, 24 and 25 of Regulation 1829/2003 are relevant. Similarly, Articles 4, 5 and 8 of Regulation 1830/2003 are particularly relevant.
- 64.
M Dobbs, ‘Co-existence of GMOs in the EU – A Veritable Choice for Whom?’ in M Cardwell and J McMahon (eds) Research Handbook on EU Agriculture Law, (Edward Elgar 2015).
- 65.
This is debatable if one examines the provision in the various official languages of the EU, due to the syntax and also the specific words chosen.
- 66.
Case C-6/99 Association Greenpeace France and Others v Ministère de l’Agriculture et de la Pêche and Others, [2000] ECR I-1651, para. 44.
- 67.
Joined Cases T-366/03 and T-235/04 Land Oberösterreich and Republic of Austria v Commission, [2005] ECR II-4005; Case C-121/07 Commission v France [2008] ECR I-9159; and the Opinion of Advocate General Mazák of 5 June 2008 in Case C-121/07 Commission v France at pt. 44. See also Dobbs (n74) at 1354–5.
- 68.
Council Directive 2002/53/EC of 13 June 2002 on the common catalogue of varieties of agricultural plant species, [2002] OJ L193/1. Article 16(2) of the Directive also provides scope for unilateral national measures along the same lines as Article 18.
- 69.
Commission Decision 2006/10/EC of 10 January 2006 concerning the provisional prohibition in Greece of the marketing of seeds of maize hybrids with the genetic modification MON 810 inscribed in the common catalogue of varieties of agricultural plant species, pursuant to Directive 2002/53/EC, [2006] OJ L7/27.
- 70.
Joined Cases C-58/10 to C-68/10 Monsanto SAS and Others v Ministre de l’Agriculture et de la Pêche, [2011]ECR I-7763.
- 71.
M Weimer, ‘The Right to Adopt Post-Market Restrictions of Genetically Modified Crops in the EU - A Shift from De-Centralised Multi-Level to Centralised Governance in the Case of GM Foods’ (2012) 3 EJRR 445.
- 72.
Monsanto (France) (n70), para 78.
- 73.
Commission Decision 2006/335 of 8 May 2006 authorising the Republic of Poland to prohibit on its territory the use of 16 genetically modified varieties of maize with the genetic modification MON810 listed in the Common catalogue of varieties of agricultural plant species, pursuant to Council Directive 2002/53/EC [2006] OJ L124/26.
- 74.
Nonetheless, the previous comitology procedure made the lifting of national prohibitions based on Article 23 of Directive 2001/18 impossible in practice for the Commission, as the Council were able to block proposals to lift the prohibitions. See M Dobbs, ‘Legalising General Prohibitions on Cultivation of Genetically Modified Organisms’ (2010) 11 GLJ 1347 at 1354–6. The Commission did succeed in lifting prohibitions relating to GM food and feed, as well as Greece’s prohibition regarding seeds (Decision 2006/10/EC).
- 75.
E.g. N. de Sadeleer, ‘Procedures for Derogations from the Principle of Approximation of Laws under Article 95 EC’ (2003) CMLRev 40, 889; and F.M. Fleurke, ‘What Use for Article 95 (5)? An Analysis of Land Oberösterreich and Republic of Austria v Commission’ (2008) 20 JEL 267.
- 76.
See e.g. Article 5(5) of Regulation 1829/2003; Article 12(1) of Directive 2001/18; and Monsanto (France) (n70).
- 77.
E.g. the creation of a Co-existence Network (Decision 2005/463/EC, [2005] OJ L164/50) and a Co-existence Bureau (M Lee, ‘Multi-Level Governance of GMOs in the EU: ambiguity and hierarchy’, in L Bodiguel & M Cardwell (eds.), The Regulation of GMOs: Comparative Approaches (OUP, 2010)).
- 78.
Commission Recommendation on guidelines for the development of national co-existence measures to avoid the unintended presence of GMOs in conventional and organic crops, [2010] OJ C200/1. For further on the 2010 Recommendation see M Dobbs, ‘Excluding Coexistence of GMOs? The Impact of the EU Commission’s 2010 Recommendation on Coexistence’ (2011) 20 RECIEL 180.
- 79.
Thus, Ireland considered the previous 2003 Recommendation in developing their report on coexistence (page ix of the Report on coexistence, available at: http://www.agriculture.gov.ie/media/migration/publications/2005/coexistenceofgmandnon-gmcropsinireland/report.pdf).
- 80.
Dobbs (n78).
- 81.
The very logic of coexistence seems somewhat faulty considering that admixture will occur and undoubtedly increase over time. Generally coexistence measures will favour one agri-type over another: L Levidow and K Boschert, Coexistence or contradiction? GM crops versus alternative agricultures in Europe?, 39 GEOFORUM 174, 174, 181, 187 (2008).
- 82.
Commission Recommendation 2003/556 of 23 July 2003 on guidelines for the development of national strategies and best practices to ensure the co-existence of genetically modified crops with conventional and organic farming, [2003] OJ L189/36.
- 83.
2010 Co-existence Recommendation, [2010] OJ C200/1, Guidelines, Section 2.4.
- 84.
See generally http://www.agriculture.gov.ie/gm_coexistence/.
- 85.
- 86.
E.g. pages 1–2 of the report; and the Foreword and Executive Summary available at: http://www.agriculture.gov.ie/media/migration/publications/2005/coexistenceofgmandnon-gmcropsinireland/introduction.pdf.
- 87.
Xiii-xv of the Executive summary.
- 88.
E Glon ‘A geographical approach to the European policy for the co-existence of GMO and non-GMO crops’ in Y Bertheau (ed), Genetically Modified and non-Genetically Modified Supply Chains: Co-Existence and Traceability (Wiley 2012), at 570.
- 89.
J Corti-Varela, ‘Coexistence of genetically modified, conventional and organic products in the European market: state of the art report’ (2010) 1 European Journal of Risk Regulation 71.
- 90.
Dobbs (n78).
- 91.
Article 1 of Directive 2015/412, C. Macauley, ‘GM crop-growing banned in Northern Ireland’, 21 September 2015, BBC News, http://www.bbc.co.uk/news/world-europe-34316778.
- 92.
J Scott ‘European regulation of GMOS and the WTO’ (2002–3) 9 Columbia Journal of European Law 213.
- 93.
Note Submitted by Austrian Delegation, Genetically Modified Organisms – A Way Forward (June 25, 2009), http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2011226 %202009%20REV%202
- 94.
Proposal for a Regulation amending Directive 2001/18/EC as regards the possibility for the Member States to restrict or prohibit the cultivation of GMOs in their territory, COM (2010) 375 final (July 13, 2010).
- 95.
E.g. Progress Report, 6 June 2012, 10883/1/12 REV 1: http://register.consilium.europa.eu/doc/srv?l=EN&t=PDF&gc=true&sc=false&f=ST%2010883%202012%20REV%201, 5; and M Weimer, ‘Risk regulation, GMOs, and the challenges to deliberation in EU governance: politicization and scientification as co-producing trends’ (2014) Amsterdam Centre for European Law and Governance Working Paper Series 2014–03.
- 96.
Annex to Council of the EU, Proposal for a Regulation of the European Parliament and of the Council amending Directive 2001/18/EC as regards the possibility for the Member States to restrict or prohibit the cultivation of GMOs in their territory – political agreement, note to Council, Brussels, 28 May 2014 (10271/14).
- 97.
Council of the EU, Press Release, 12 June 2014 (10415/14): http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/envir/143178.pdf
- 98.
European Parliament legislative resolution of 13 January 2015 on the Council position at first reading with a view to the adoption of a directive of the European Parliament and of the Council amending Directive 2001/18/EC as regards the possibility for the Member States to restrict or prohibit the cultivation of genetically modified organisms (GMOs) in their territory (10972/3/2014 – C8-0145/2014 – 2010/0208(COD)).
- 99.
There is a transitional period allowing for requests regarding currently authorised GMOs, but any restrictions must not affect authorized crops that are already planted.
- 100.
EPEC, ‘Evaluation of the EU legislative framework in the field of cultivation of GMOs under Directive 2001/18/EC and Regulation (EC) 1829/2003, and the placing on the market of GMOs as or in products under Directive 2001/18/EC’, Final Report to DG SANCO, March 2011: http://ec.europa.eu/food/food/biotechnology/evaluation/docs/gmo_cultivation_report_en.pdf, 96–7 and 106–7.
- 101.
Exceptions were possible where objective circumstances excused earlier inaction and any restriction did not detrimentally affect crops already planted legally.
- 102.
COM(2010) 380 final at 6 noted that the 2010 Coexistence Recommendation and the proposed Article 26b were to provide the Member States with more flexibility, with the consequence that they might not avail of the safeguard clauses in circumstances that the Commission and EFSA considered inappropriate.
- 103.
See Section VIII Conclusions and Recommendations of the Panel’s Report (n32).
- 104.
On the objective justifications under the proposed Article 26b, see: Dobbs (n74).
- 105.
‘Charter of the Regions and Local Authorities of Europe on the Subject of Coexistence of Genetically Modified Crops with Traditional and Organic Farming’ (Florence, 2005).
- 106.
N de Sadeleer, EU Environmental Law and the Internal Market (OUP 2014), 259–300.
- 107.
E.g. Articles 14 and 26 of Regulation 1829/2003 and Article 9 of Regulation 1830/2003. As a Directive, Directive 2001/18 must generally be implemented by the Member States. Hence it is understandable that the Irish implementing Regulations are more detailed than those implementing Regulations 1829/2003 and 1830/2003, which are directly applicable.
- 108.
E.g. Article 33 of Directive 2001/18, Article 45 of Regulation 1829/2003 and Article 11 of Regulation 1830/2003.
- 109.
Part IV of the FSAI, Act 1998 and Part 4 of the 2013 GM Food Regulations.
- 110.
- 111.
E.g. via Francovich liability: C-6/90 & 9/90 Francovich v Italy [1991] ECR I-5537.
- 112.
E.g. B Jack, ‘Enforcing Member State Compliance with EU Environmental Law: A Critical Evaluation of the Use of Financial Penalties’ (2010) 23:1 JEL 73.
- 113.
However, labelling is not required of products made with the use of GMOs, e.g. meat from animals fed GM feed.
- 114.
E.g. Articles 4(7), 4(8), 5(4) and 7(2) of Regulation 1830/2003, in conjunction with Articles 12(2) and 24(2) of Regulation 1829/2003.
- 115.
E.g. Articles 7 and 11 of the 2013 GM Food Regulations.
- 116.
E.g. Articles 7 and 12 of the 2013 GM Food Regulations.
- 117.
Article 8 provides that failure to comply with the provisions of Regulations 1829/2003 or Regulation 1830/2003 is an offence.
- 118.
European Communities (Organic Farming) Regulations 2004, S.I. 112/2004.
- 119.
Consultation letter from the UK Food Standards Agency, 31 January 2013: http://www.food.gov.uk/sites/default/files/multimedia/pdfs/eu-gm-free-labelling-wales.pdf
- 120.
Regulation 767/2009/EC on the placing on the market and use of feed, amending European Parliament and Council Regulation (EC) No 1831/2003 and repealing Council Directive 79/373/EEC, Commission Directive 80/511/EEC, Council Directives 82/471/EEC, 83/228/EEC, 93/74/EEC, 93/113/EC and 96/25/EC and Commission Decision 2004/217/EC, [2009] OJ L229/1.
- 121.
Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council, [2005] OJ L149/22.
- 122.
E.g. Article 42 as expanded upon in Article 43.
- 123.
E.g. Article 47 in conjunction with Articles 42 and 43.
- 124.
European Communities (Labelling, Presentation and Advertising of Foodstuffs) Regulations, S.I. No 483/2002.
- 125.
Directive 2001/13/EC on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs, [2001] OJ L109/29.
- 126.
Article 4 of the 2002 Food Labelling Regulations.
- 127.
Article 20 of the 2002 Food Labelling Regulations.
- 128.
- 129.
Regulation 1169/2011/EU on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004, [2011] OJ L304/18.
- 130.
EC (Food and Feed Hygiene) Regulations 2009, S.I. No 432/2009.
- 131.
S.10 of the 1980 Act, replacing s.13 of the 1893 Act.
- 132.
See S.44 of the 1980 Act.
- 133.
S. 45 of the 1980 Act relates to misrepresentations, although contracting parties may provide for fair and reasonable limitations: s.46 of the 1980 Act.
- 134.
- 135.
Ibid, at 3.
- 136.
FSAI Newsletter, July-August, available at http://www.fsai.ie/uploadedFiles/News_Centre/Newsletters/Newsletters_Listing/FSAI_News_v14i4.pdf at 4; and https://www.fsai.ie/enforcement_audit/food_fraud_task_force.html
- 137.
Proposal for a Regulation of the European Parliament and of the Council on official controls and other official activities performed to ensure the application of food and feed law, rules on animal health and welfare, plant health, plant reproductive material, plant protection products and amending Regulations (EC) No 999/2001, 1829/2003, 1831/2003, 1/2005, 396/2005, 834/2007, 1099/2009, 1069/2009, 1107/2009, Regulations (EU) No 1151/2012, [....]/2013 [Office of Publications, please insert number of Regulation laying down provisions for the management of expenditure relating to the food chain, animal health and animal welfare, and relating to plant health and plant reproductive material], and Directives 98/58/EC, 1999/74/EC, 2007/43/EC, 2008/119/EC, 2008/120/EC and 2009/128/EC (Official controls Regulation), COM(2013) 265 final.
- 138.
Case C-132/03 Ministero della Salute v Coordinamento delle Associazioni per la Difesa dell’Ambiente e dei Diritti Degli Utenti e dei Consumatori (Codacons) [2005] ECR I-4167, Opinion of Advocate General Léger of 3 March 2005, paras 81–2: ‘the average consumer who is reasonably well-informed and reasonably observant and circumspect’ might now expect a low level of presence of GMOs in all foods as the ‘contamination of the environment by GMOs is a well-known phenomenon’.
- 139.
Besides civil and criminal actions, they can also take a judicial review of for instance an administrative decision to grant a cultivation licence. They could also take an action against Ireland for State liability under EU law if the circumstances were relevant, e.g. failure to implement EU law on time and effectively, where this resulted in a loss to the plaintiff. This could be relevant for instance to failure to implement the Environmental Liability Directive in relation to damage caused between April 2007 and April 2009 (although it would prove challenging to demonstrate how the plaintiff was harmed as a result).
- 140.
R Friel, ‘Economic Loss Caused by GMOs in Ireland’, in BA Kock (ed.), Economic Loss Caused by Genetically Modified Organisms: Liability and Redress for the Adventitious Presence of GMOs in Non-GM Crops (Springer, 2008).
- 141.
European Communities (Environmental Liability) Regulations 2008, S.I. 547/2008.
- 142.
Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, [2004] OJ L143/56.
- 143.
For example see G Winter, JH Jans, R Macrory and L Krämer, ‘Weighing up the EC Environmental Liability Directive’, (2008) 20:2 JEL 163 at 186–9.
- 144.
Article 3 and Schedule 2 of the 2008 Regulations.
- 145.
Also of relevance, Article 18 provides for joint and several liability.
- 146.
Explanation by the EPA, available at: http://www.epa.ie/enforcement/liab/. This reflects a combination of the definitions in Regulation 2 and the scope in Regulation 3.
- 147.
Friel (n140), at 280. This is based on M’Daid v Milford Rural District [1919] 2 The Irish Reports 1.
- 148.
For further information generally on the law of torts in Ireland see for example: B McMahon and W Binchy, Law of Torts (4th edn, Tottel Publishing, 2013); and P Ward, Tort Law in Ireland, (Kluwer Law International, 2010).
- 149.
Friel (n140), examines the use of negligence, nuisance and the rule in Rylands v Fletcher in relation to the cultivation of GMOs. See also: the section on Ireland in V Wilcox, ‘Summaries of the Country Reports’, in Koch (n140).
- 150.
However, the quantum of liability for trespass will be minimal unless there has been damage inflicted. Furthermore, for trespass, presence of the GMO on the plaintiff’s property will be required.
- 151.
See Friel (n140), at 280–5 regarding causality for negligence, nuisance and Rylands v Fletcher. Also see Chapter 2 of McMahon and Binchy (n148).
- 152.
E.g. Corrigan v HSE [2011] IEHC 43.
- 153.
Power v Bedford Motors [1959] IR 391; and Murray v Miller and Brady, 14th November 2001, Roscommon Circuit Court, Judge McMahon. Also see McMahon and Binchy (n148), at 115–7.
- 154.
Friel (n140), at 285.
- 155.
Friel (n140), at 283.
- 156.
Hanrahan v Merck Sharp & Dohme (Ireland) Ltd [1988] IESC I; [1988] ILRM 629.
- 157.
Ibid, at 20. This departs from the traditional approach to the doctrine.
- 158.
Ibid, at 21.
- 159.
See Chapter 3 of McMahon and Binchy (n148); The Wagon Mound (No1) [1961] AC 388; and Condon v CIE et al, unreported judgment of Barrington J in the High Court, 16 November 1988.
- 160.
The Wagon Mount (No2) [1967] AC 617 and Wall v Morrissey [1969] IR 10 extend the test of foreseeability in relation to remoteness of damage from negligence to the area of nuisance.
- 161.
McMahon and Binchy (n148), at 145.
- 162.
E.g. Burke v John Paul & Co Ltd, [1967] IR 277.
- 163.
Glencar Exploration p.l.c. v Mayo County Council [2002] 1 ILRM 481.
- 164.
This contrasts with the previous approach in Ward v McMaster [1988] IR 337 at 349, which considered in place of 3) the absence of any compelling exception based upon public policy, i.e. it was only if such a compelling existed that a duty would not be imposed.
- 165.
Friel (n140), at 282.
- 166.
Chapter 24 of McMahon and Binchy (n148).
- 167.
Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53. Nonetheless, there is a move to using reasonableness, so the action is no longer based purely on strict based liability.
- 168.
McMahon and Binchy (n148) at 990.
- 169.
See generally Chapter 25 of McMahon and Binchy (n148).
- 170.
See generally Chapter 23 of McMahon and Binchy (n148).
- 171.
See Chapters 44 and 45 of McMahon and Binchy (n148).
- 172.
There is the possibility of other damages, e.g. punitive or exemplary damages.
- 173.
Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, [1985] OJ L210/29.
- 174.
Directive 1999/34/EC amending Council Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, [1999] OJ L 141/20.
- 175.
As in the case of Article 8 of the 2004 GM Feed Regulations.
- 176.
It is possible to bring appeals against the closure and prohibition orders.
- 177.
Section 8(2) provides for the potential liability of bodies corporate.
- 178.
The amounts here are in Irish pounds and the approximate exchange rate would be £1 to €1.27.
- 179.
E.g. Article 6(1) and (2) of the 2013 GM Food Regulations.
- 180.
Article 6(3) of the 2013 GM Food Regulations.
- 181.
Article 6(4) of the 2013 GM Food Regulations.
- 182.
Articles 7 and 11 of the 2013 GM Food Regulations. Articles 7(9) and 10(3) also includes an offence of transmitting information that is ‘partial, incomplete, false or misleading’, which is important as otherwise retailers further downstream will be unable to rely on the data and label their products appropriately.
- 183.
Articles 10 and 13 of the 2013 GM Food Regulations.
- 184.
Article 15(2) of the 2013 GM Food Regulations.
- 185.
E.g. Section 51(3) regarding obstructing authorized persons; and Section 56(5) regarding unlawfully removing notices. These are summary offences with relatively minor fines.
- 186.
The information was previously available at http://archives.tcm.ie/irishexaminer/1999/04/01/ihead.htm (accessed in February 2012). 1 protester was fined £100 and bound over to the peace.
- 187.
Indeed the low level of diversity and high intensity of agricultural production was seen as one of the significant causes of the Irish Famine, e.g. EDG Fraser, ‘Food Systems Vulnerability: Using past famines to help understand how food systems may adapt to climate change’ (2006) 3:4 Ecological Complexity 328.
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Dobbs, M. (2016). Regulating Genetically Modified Organisms in Ireland: A Laissez Faire Approach? – Country Report: Ireland. In: Norer, R. (eds) Genetic Technology and Food Safety. Ius Comparatum - Global Studies in Comparative Law, vol 14. Springer, Cham. https://doi.org/10.1007/978-3-319-23995-8_5
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