While the whole of the rest of Europe has been on a summer break, the Court of Justice of the European Union has not been idle. In fact, in a communiqué of 25th July 2018, it issued a preliminary ruling in which it stated that “organisms obtained through mutagenesis are GMOs and that as such they should be subject to the same principles as the latter”.
This judgement follows a request from the French Conseil d’État which was referred to it by the Confédération paysanne [a French farmers’ union] as well as eight other entities (mainly NGOs) including the Réseau Semences Paysannes, Les Amis de la Terre France, the Collectif Vigilance OGM and Pesticides 16… The applicants’ objective was that seeds produced from new seed selection techniques, known technically as NBT ( New Breeding Techniques) should be considered as genetically modified organisms and, as such, be subject to Directive 2001/18 which will make it more difficult for them to be disseminated in the wider environment.
A remake of the great GMO Debate
All the elements are in place for us to be about to have to sit through a remake of the great GMO Debate. The latter, as we have previously shown, is the result of the transformation of a scientific controversy into a politico-legal-media polemic. In the late 1980s, the possibility of creating new plants through plant transgenesis raised questions about the “concept of substantial equivalence” of these plants: could the “seed companies” make them available on the agricultural market in the same way as seeds from the conventional catalogue? It should be recalled that said catalogue included plants grown using all the technologies developed since man has been selectively breeding living organisms, including plants produced from directed mutagenesis, a technique used for over 70 years to accelerate certain mutations.
In 2001, the creation of a specific European directive for GMOs was the result of the controversy over substantial equivalence (whether a GMO was a plant like any other). Subsequently opponents of the technology, reversing the burden of proof, assumed a priori the existence of a proven risk and called for the application of the precautionary principle. It should be noted in passing that after thirty years of field cultivation including twenty years of intensive cultivation, no negative feedback has ever been obtained from all the studies conducted on GMOs. The rapporteurs from the independent commission set up by the EU stated as long ago as 2010 that “The main conclusion to be drawn from the efforts of more than 130 research projects, covering a period of more than 25 years of research, and involving more than 500 independent research groups, is that biotechnology, and in particular GMOs, are not inherently riskier than, for example, conventional plant breeding technologies” (1).
While transgenesis-related questions no longer seemed to be in the news, in 2012 researchers Emmanuelle Charpentier and Jennifer Doudna developed a new technology that has led to a great number of improvements, including increasing the accuracy of the intervention on the genome. The solution, called Crispr-Cas9 (pronounced as “Crisper Cass Nine”) uses a property of certain bacteria to “cut” out portions of the genome and “replace” them with selected other portions. Until now, this miracle technology has been presented as a real revolution: “Laboratories around the world are immediately taking up this gene surgery, more precise, faster, and above all cheaper than traditional gene editing techniques. In future, creating a transgenic mouse will require only two months’ work and a few thousand Euros of material. Some researchers even managed to modify the technique so that the Cas9 enzyme does not just cut out the target genes, but stimulates their expression, inhibits them or replaces them with another gene, transforming the “gene scissors” into a real “gene Swiss Army Knife”. These successes are such that the journal Science considers Crispr-Cas9 as one of the greatest scientific breakthroughs of 2013 and as the scientific innovation of 2015” (2)
It will be recalled that before becoming controversial in 1996, GMO’s media coverage also focused on technological innovation. It was following a lead story in the newspaper Libération, entitled “Mad Soy Alert”, that everything changed, with the technology suddenly stigmatised by being framed as a health crisis rather than a technological innovation, which had been considered up to that point as revolutionary. The article in question followed the first imports of genetically modified soya into Europe, and Greenpeace activists chaining themselves to the port at Antwerp. NGO activism redoubled to give substance to the polemic and tip the “scientific” subject into the realms of the sensational. This was how “the volunteer reapers” appeared, a new type of Luddites who enlivened the media summer quiet season for over a decade. They seized their opportunity to make their big media comeback the minute the ECJ delivered its verdict: in Druelle, about fifty individuals destroyed a plot of two hectares of sunflower crops entirely dedicated to research, belonging to the RAGT company. An article in the newspaper La Dépêche describes the destruction, relating that “Anti-GM activists denounce Variety, the mutated plants made herbicide-resistant which have just been recognized as GMO by the Court of Justice of the European Union”.
“Nature” questioned again
As we have shown, the “GMO Debate” was based on an ideological opposition between two visions of Nature. The return of the reapers brings us back to this problem. In fact, as we read in the ECJ press release, “In today’s judgement, the Court of Justice takes the view, first of all, that organisms obtained by mutagenesis are GMOs within the meaning of the GMO Directive, in so far as the techniques and methods of mutagenesis alter the genetic material of an organism in a way that does not occur naturally” Here we are again, back with the argument of the “phenomenon which does not occur in nature ” and which follows the affirmation that there is no substantial equivalence. While researchers are convinced that they are constantly improving their tools to enable them to know and therefore modify living organisms, their opponents want these modifications kept out of all beings that meet their definition of the concept of Nature. There are indeed two opposing visions: the first, the “anti” brigade’s vision, rejects human intervention and considers as “natural” only living things resulting from the vertical transfer of genetic information, i.e. resulting from reproduction. The “pro” brigade on the other hand, have a broader vision that also includes beings resulting from the horizontal transfer of genetic information (whether induced or spontaneous) and includes all gene modifications: according to them, there is a real continuum between all possible living things and biotechnological modifications. In addition, the limited viewpoint of the anti camp allows them to be led into a paralogism: “All natural beings are good”, “GMOs are not natural”, “GMOs are not good.” However, this apparently logical reasoning is a Petitio Principii (begging the question) which is not based on anything scientific but rather, based only on unsubstantiated beliefs. Only a case-by-case study can determine the properties of a given seed and it is not possible to rely solely on how it is obtained. Yet, obviously, it is this self-same fixed and reductive vision of nature that the ECJ has used to formulate their a priori judgement on the status of NBTs.
Is Directive 2001/18 now obsolete?
In a publication from 2016, Agnès Ricroch, Klaus Ammann and Marcel Kuntz (3) accurately predicted the current situation and called for changes to EU legislation to adapt it to the editing (or rewriting) of genomes, knowing that this had made it totally obsolete: “European biotechnology regulation is based on the technical process of genetic improvement of an organism (a plant variety for example), rather than on the properties of the organism itself (the phenotype). In addition: only one technique is dealt with: transgenesis. Our publication shows that this regulation is out of touch with reality and has played a major role in the blocking of ‘GMOs’ (genetically modified organisms), whereas this was not its initial aim, and that it is now obsolete.” The authors claim that the new biotechnologies will suffer the same fate. “The European Union (EU) has gone all out politically for its misinterpretation of the precautionary principle and is unable to engage in a positive way with the question of new biotechnologies (gene editing or re-writing) and genetic engineering in general.” This could have the effect of totally blocking the development of new biotechnologies. In conclusion, they call instead for the establishment of a real risk assessment: “a simple operational method, which focuses on the phenotype of a new variety rather than the method used to generate it. (…) This system should assess the real risks and not overestimate the perceived risks of varieties that have fallen within the regulatory framework of ‘GMOs’ ”
It is unfortunate that the ECJ did not take this point of view into consideration before giving its opinion. By basing it solely on the ideological position of the Confédération paysanne union, it turns its back on science and its capabilities for evaluation. In the GMO context, we could understand the reluctance of some – who remained attached to a kind of respect verging on worship of living organisms – with regard to transgenesis, which played fast and loose with the species barrier to accelerate modifications, but with NBT, we have a technology that makes it possible to obtain rapid results simply by having a good knowledge of the genome of the organisms we want to modify. Let us hope that it is not too late and that the European Union revises its view… Because if Europe misses this train yet again, we can be sure that others will develop this new technology instead.
(2) Laurianne Geffroy, Pierre Tambourin, Jean-François Prud’Homme, in “Le génie des genes, la genénomique au service de la santé et de l’environnement, collection ” Cherche Midi “, p. 42.
(3) Agnes E. Ricroch, Klaus Ammann, Marcel Kuntz, Editing EU legislation to fit plant genome editing, EMBO reports (2016) e201643099, http://embor.embopress.org/content/early/2016/09/14/embr.201643099.