Complete Text of New German "Polluter Pays" GMO Liability Law

Posted 11/29/04
Information on the proposed Amendment to Germany´s Genetic Modification Act

I. Introduction

Under Article 26a of Directive 2001/18/EC on the deliberate release of
genetically modified organisms into the environment, Member States are
entitled to take appropriate measures to avoid the unintended presence of
genetically modified organisms in other products. The Amendment to the
Genetic Modification Act (the Amendment) implements Directive 2001/18/EC and
aims to ensure GM-free production and the co-existence of GM crops and
non-GM crops.

The Amendment has been voted by the Bundestag (chamber of representatives)
and now has to pass the Bundesrat (chamber of federal states). The
parliamentary procedure is likely to be completed by the end of 2004.

Its key provisions are set out below.

II. Provisions to ensure the protection of GM-free farming (coexistence
provisions)

To protect GM-free farming, the Amendment provides three instruments:

* an obligation to take precautionary action to prevent "material
negative effects" of GMOs, in particular compliance with "good farming
practice" in the cultivation of GM crops,
* a site register providing farmers with precise information about the
cultivation of GM crops in their neighbourhood,
* a compensation scheme which compensates conventional and organic
farmers if cross-contamination through GMOs occurs with material negative
effects.

A "material negative effect" arises in particular in the following three
cases:

* If products cannot be placed on the market because of
cross-contamination with GMOs. This situation may arise, in particular,
where owing to cross-contamination with GMOs released, for example, in a
field trial a neighbouring farmer can no longer market his products because
they contain traces of GMOs that have not been authorised to be placed on
the market.
* If owing to cross-contamination with GMOs a neighbouring farmer is
obliged to label his produce as "genetically modified".[1]
* If owing to the presence of GMOs a neighbouring farmer is no longer
able to label his produce as "organic" within the meaning of Regulation
(EEC) No. 2092/91 or as produced "without genetic modification" within the
meaning of the relevant German legislation[2].
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[1] Under EC legislation, all food and feed containing, consisting of or
produced from GMOs must be labelled "genetically modified". If the content
of genetically modified material amounts to less than 0.9% of the relevant
ingredient, labelling is not mandatory if the presence of the material is
adventitious or technically unavoidable.

[2] In Germany, the label "without genetic engineering" can be used on a
voluntary basis and is subject to specific requirements laid down in
national law.
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1. Obligation to take precautionary action and comply with "good farming
practice", Section 16b

* Under the Amendment, material negative effects must be avoided
especially in the cultivation of GM crops, but also in other specific ways
of handling GMOs such as processing.

In order to achieve this objective, the Amendment lays down various
fundamental obligations, such as observance of minimum distances between
fields. In addition, persons who handle GMOs commercially must be able to
prove that they possess the appropriate reliability, knowledge, skills and
equipment. Persons placing GMOs on the market must supply accompanying
information with the product. This information must show how material
negative effects can be avoided in the handling of the relevant GMO, for
example through precise details of the GMO´s cultivation design. Rules of
"good farming practice" will be issued to specify these obligations in
greater detail. To enable the authorities to modify these rules in the light
of future experience with the cultivation of GM crops, those marketing or
handling GMOs must notify the authorities of new findings relevant to risk.

2. Site register, Section 16a

The public register foreseen in Article 31(3) of Directive 2001/18/EC will
also be designed with the aim of ensuring co-existence. Therefore the public
can obtain information about a parcel of land where GMOs are intended to be
released. Anyone able to prove a legitimate interest will be entiteled to
further information.

3. Defensive and compensatory claims under civil law, Section 36a

Cross-contamination or other GMO inputs depend on a variety of factors, such
as climate or specific geographical features. Material negative effects
cannot therefore be ruled out in the cultivation of GM crops even if the
obligations of precautionary action and good farming practice are met.

Until now such risk has not been sufficiently covered under German civil
law. The Civil Code has defensive and compensatory provisions for material
negative effects arising between adjacent properties, but these contain many
undefined legal terms, giving rise to considerable legal uncertainty.

The Amendment aims to define these terms more clearly, thus creating clarity
and legal certainty. This includes defining the term "material negative
effects" (see above) and also clarifying the rules for burden of proof of
causation, since if several neighbouring farmers cultivate GMOs it cannot
always be determined after the event which one has been responsible for
damage in a specific case. Under the Amendment, in principle joint and
several liability of all neighbouring farmers which might have caused the
cross-contamination will apply, so that a farmer who has sustained damage
will be free to decide which neighbour to claim compensation from.

Thus farmers cultivating GMOs will be liable to pay compensation if they are
responsible for material negative effects.

III. Other key provisions

1. Precautionary principle, Section 1

According to the Amendment, the Genetic Modification Act will include an
explicit reference to the precautionary principle. This is important for the
interpretation of all the provisions of the Act concerned with safety, in
particular the provisions for the authorisation of deliberate releases and
products. Under the precautionary principle, the authorities may take
preliminary protective measures even if there are uncertainties over the
presence or extent of risks to the environment and human health without
having to wait for formal confirmation of the existence and severity of
these risks.

2. Monitoring, Section 16c

Under Directive 2001/18/EC, an applicant must submit a monitoring plan with
any request for authorisation to market GMOs at Community level. The
monitoring procedure is intended to ensure that any unforeseen effects of
the GMO on human health or the environment can be traced and identified.

3. Time limit for consents, Section 16d

In accordance with Directive 2001/18/EC, consent for marketing of GMOs will
be given for a maximum period of ten years. When renewing consents, the
results of monitoring will be taken into account.

4. Protection of ecologically sensitive areas, Article 2 (Amendment of the
Federal Nature Conservation Act)

The Amendment contains special provisions for the protection of ecologically
especially sensitive areas which form part of the "Natura 2000" network. The
use and handling of GMOs in such areas will in future only be allowed after
notification to the local nature conservation authority prior to the
beginning of use. The nature conservation authority can prohibit such use if
a material negative effect on the area is deemed likely.

5. Cross-contamination from field trials, Section 3 (6)

Cases of GMO cross-contamination from field trials to a neighbouring field
have hitherto been a controversial issue between the supervisory authorities
of the Länder (federal states) and between various courts. Under the
Amendment, cross-contaminated products cannot be placed on the market. A
neighbouring farmer who as a result is no longer able to market his products
can therefore claim compensation from the person conducting the field trial.

6. Authorisation authorities and bodies, Sections 4 ff., Section 16 (4)

The Amendment also provides for a stronger focus on environmental
conservation in decisions by German authorities involved in the EU approval
procedure. Henceforth the Federal Agency for Nature Conservation will have
power of veto for the purpose of the German opinion, including the German
position with respect to product notifications filed in other Member States.

A new Committee which will only submit expert opinions on authorisation of
field trials and marketing will be established at the existing Central
Commission for Biosafety. This Commission is a body of experts made up of
natural scientists and representatives of the social groups concerned.

IV. Summary

To ensure the coexistence of cultivation of GM and non-GM crops and to
review the legislation on genetic modification in Germany, the Bundestag
(chamber of representatives) has voted an Amendment to Germany´s Genetic
Modification Act. In addition to protecting the environment and human
health, its main aim is to protect conventional GM-free and organic
agriculture from cross-contamination by genetically modified organisms. To
this end, the Amendment includes several new provisions to protect GM-free
farming. These include an obligation to take precautionary action in order
to avoid material negative effects caused by GMOs (in particular by
complying with "good farming practice" in the cultivation of GMOs), a site
register providing farmers with information on the cultivation of GMOs in
their neighbourhood and provision for compensation claims against a GM
farmer in the event of material negative effects through
cross-contamination.
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© Bundesministerium für Verbraucherschutz, Ernährung und Landwirtschaft
(BMVEL) 2004