6-Regulation: FoEE analysis of the new German genetech act

[GENET <coordination@genet-info.org>]

                                  PART I
-------------------------------- GENET-news -------------------------------

TITLE:  German law on co-existence - improved
SOURCE: FoEE Biotech Mailout
DATE:   July 2004

------------------- archive: http://www.genet-info.org/ -------------------


German law on co-existence - improved

On 18 June 2004, the Bundestag (the German Parliament) adopted a new law,
aimed at ensuring GM-free production and the co-existence of GM crops and
non-GM crops. The law is based on the EU's deliberate release Directive
2001/18, which gives EU member states the possibility to take measures to
avoid the presence of GMOs in other products. Compared to the draft
proposal presented by the German federal government in February (see
Biotech Mailout, April 2004) several improvements have been introduced.

The key provisions of the law are:
- a public register providing farmers and others with precise information
about the cultivation of GM crops in their neighbourhood;
- an obligation for GM operators to take precautionary action to protect
GM free farming and to prevent "material negative effects" (economic
damage) as a result of releases of GMOs, in particular compliance with
"good farming practice" during the cultivation of GM crops;
- a compensation scheme which compensates conventional and organic
farmers if crosscontamination through GMOs causes economic damage;
- protection of ecologically sensitive areas.

The new law amends the Federal Nature Conservation Act and states that
field trials and the use and handling of GMOs will not be allowed if
- they affect an ecologically sensitive "Natura 2000" area significantly;
- the possibility to refuse authorisations if it can be shown (in
advance) that for a specific product, co-existence is not possible;
- the possibility to refuse and/or withdraw approvals on the basis of
potential ecological damage of a GMO due to enhanced invasive potential.


Public Register

The public register will be designed with the aim of ensuring co-
existence. Precise information about the location of parcels where GMOs
are intended to be released will be available to the public. Anybody who
intends to commercially grow GMOs has the obligation to report this at
least three months in advance to the authorities for the purpose of
registration. However, for field trials this period is only three days.
In the register, a unique identifier (based on OECD criteria) and other
data relating to the GMO will be kept for 15 years.

Compared to the draft law (see Biotech Mailout April 2004) these are
considerable improvements. For example: under the draft law the register
was not fully accessible to the public and GMO growers could make a
special application for "exclusion of information". Also in the draft
law, the unique identifier was not mentioned. Though this may seem a
detail, the unique identifier is an important tool to trace genetic
contamination.


Genetic contamination

The new law obliges GMO operators to take precautionary action to avoid
"material negative effects", especially during the cultivation (including
field trials) of GM crops, but also during other specific ways of
handling GMOs, such as processing. According to the law, material
negative effects (economic damage) occurs when products cannot be placed
on the market because of cross contamination with GMOs.

Contrary to the recently adopted Danish co-existence law, (see page 10 of
this Biotech Mailout) the German law recognises that economic damage can
also occur when the contamination stays below the European labelling
threshold of 0.9 % (1).

This is of great importance, since the market (retailers etc.) might
refuse to sell products that contain less than 0.9 % GM pollution. It was
the German Parliament who strengthened the law on this crucial aspect.
Furthermore, according to the law, economic damage also occurs if owing
to the presence of GMOs, a neighbouring farmer is no longer able to label
his produce as "organic" within the meaning under EU Regulation No.

2092/91 or as produced "without genetic modification" within the meaning
of the relevant German legislation (2).


Provision of product information

The new law lays down that 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,
such as recommended isolation distances between the GMO crop and non-GM
crops in neighbouring fields.

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 are under the obligation to monitor for
negative effects and to notify the authorities of new findings relevant
to risk.


Compensation scheme

The new law establishes the principle of 'joint and several liability' of
all neighbouring farmers which might have caused the cross-contamination,
so that a farmer who has sustained damage will be free to decide which
neighbour to claim compensation from. The reasoning behind the principle
of joint and several liability is that - 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.

However, if damage through crosscontamination to non-GM farmers occurs,
although neighbouring GM farmers have respected the instructions provided
by the GM seed producer (see paragraph above), the seed producers can be
held liable. In that case the GM farmer can sue the GM seed producer for
providing inadequate product information. This will force the producer of
GMOs to take into account the latest scientific evidence about the
dissemination of a particular GMO and will make it impossible to only
rely on those studies that mention the shortest "safe distance" to
neighbouring fields.


Ecologically sensitive areas

The new law contains special provisions for the protection of
ecologically sensitive areas, which form part of the "Natura 2000"
network. Field trials, the use and handling of GMOs in such areas will
not be allowed if they affect a "Natura 2000" area significantly.


Refusal of authorisations

The law gives the possibility to refuse and/or withdraw authorisations if
it can be shown that in a specific case (specific product in a specific
region) coexistence is not possible. A refusal can take place when it can
be shown in advance, that co-existence cannot be guaranteed. An
authorisation can be withdrawn if during the cultivation of GM crops it
becomes apparent that the GM plants are cross-contaminating non-GM
plants. The legal basis for the refusal and/or withdrawal is the
Recommendation on co-existence that was published by the European
Commission in July 2003. In this Recommendation the Commission states
"measures of a regional dimension could be considered" if other measures
(such as separation distances between adjacent fields) are not effective
(Recommendation, point 2.1.5).


Cases of high invasive potential

In those cases where it can be shown that GMOs have a greater potential
to invade nature than their natural counterparts, the authorities have
the possibility to stop the introduction of a certain GMO. This is in
order to prevent that a GMO establishes itself permanently in nature.


FoE's assessment

Friends of the Earth, believes that the new German law contains several
interesting elements for the protection of GM-free agriculture and GM -
free food production. For example, the public register is essential to
ensure that non-GM farmers can demand that their neighbours take
appropriate measures to avoid genetic contamination. The register could
also be useful for nature protection organisations and (regional)
authorities to intervene when it becomes apparent that GMOs could
threaten ecologically sensitive zones. It is however very strange that in
the case of field trials the notification period for GM releases is only
three days in advance, which makes it extremely difficult to take
appropriate measures in time.

It is positive that the law recognises that measures are needed to avoid
GM contamination below 0.9 %. This is essential, since the biotech
industry is lobbying for an interpretation of EU law, whereby any
contamination below 0.9 % would be taken for granted. Needless to say
this would violate consumers' and farmers' right to choose.

It still remains to be seen how effective the new German law will be. The
effectiveness of the law heavily depends on actions by seed producers and
GM farmers. It is as yet unknown if they can avoid GM contamination - it
is quite obvious that this will be extremely difficult, given the fact
that GM contamination can travel long distances.

Possibly the only solution is the establishment of large GM-free zones
and it is very questionable if GM producers and GM operators would take
the initiative in that direction.

Another issue is control. How will it be controlled if GM producers and
GM operators abide by the law? Probably the German state will have to
play a more important role and set up a control mechanism, since the
control should not be left to affected farmers alone, who may not have
the means to do so.

Also in the area of liability, more state intervention is needed. In the
current law there is only civil liability, which means that the claiming
of damage as a result of GM contamination is left to private parties.
This means that the victims themselves will have to take the risk of
initiating a legal procedure against their neighbours. It would be better
if the state would play a more active role in these procedures.

Another area of weakness is the protection of nature against the risks of
GMOs. What happens if an ecologically sensitive area is damaged by the
release of GMOs? Will the state claim compensation or will NGOs get the
possibility to do so? The law does not anwser these questions.

Also, in effect the protection that the law offers for ecologically
sensitive zones is restricted to Natura 2000 areas, which only form 2.5 %
of the surface area of Germany.

This is because the possibility to intervene outside Natura 2000 areas in
cases of "enhanced invasiveness" of GMOs is fairly restricted, since this
possibility is only mentioned in the reasoning accompanying the law and
not in the law itself.

What's next ?

The law as adopted by the German Partliament will now go to the
Bundestag. The Bundestag is a legislative body representing the 16 German
states, who together make up the Federation. The Bundestag can still
overrule the law adopted by the Parliament, but only when its reaches a
twothirds majority against it. In that case there will be no law at all.
The vote in the Bundestag is expected in the autumn of 2004, with 24
September 2004 as the first potential date.

References:
1. Under EC legislation, all food and feed consisting of or produced from
GMOs must be labelled "genetically modified". If the content of
genetically modified material amoutns to less that 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 subject to specific requirements laid down in
national law.


                                  PART II
-------------------------------- GENET-news -------------------------------

TITLE:  German draft biotech law offers no guarantees
SOURCE: FoEE Biotech Mailout, by Heike Moldenhauer
DATE:   April 2004

------------------- archive: http://www.genet-info.org/ -------------------


German draft biotech law offers no guarantees

On 11 February 2004 the German government adopted the draft of a new
biotech law aimed at the transposition of 2001/18/EG into German law.

The draft is a compromise within the (biotech-critical)Green- (pro-
biotech)Socialist-Coalition. Prior to its final adoption it has to be
passed by the Bundestag - the parliament and the Bundesrat, the
conservative and liberal dominated second legislative chamber.

What this means is that a conciliation procedure is required, which is
expected after the parlamentary summer break. Whether there will be
improvements or a watering down depends on the public pressure
environmental groups, farmers and consumers' organisations will exert on
the big coalition of very GMO-friendly politicians. The present version
does not guarantee the protection of GMO-free agriculture and food
production. The most critical points are:

Coexistence rules only announced (1)

The draft only announces that there will be coexistence rules and refers
to an outstanding regulation no one has seen till now. It formulates
general guidelines according to the cause principle: measures securing
GMO-free agriculture and food production have to be taken by the GMO-
users. Therefore those who are placing GMOs on the market - biotech
companies, GMO-seed and feed dealers and farmers who grow GMOs have to
take care not to contaminate the GMO-free production.

Access to public registers to be limited (2)

Only general information shall be accesssible to the public: the name of
the GMO, its traits, name and postal code of the community where it is
grown and the dimension of the area. People who want to know where
exactly a GMO-field is will have to prove a "justified interest".

A "justified interest" per definitionem can only cover a specific group:
neighbouring farmers and landowners. But even if the authorities accept a
"justified interest" it is not sure if one will receive the information.
GMO-growers can make a special application for exclusion of information -
they can demand a so called "protection interest" which remains
undefined. At any rate: there is no obligation foreseen for GMO-farmers
to inform their neighbours. This means the non-GMO growers have to
investigate the location of GMO-fields and this information - if
available - probably will not be free of charge.

Liability problem not solved (3)

The draft defines GMO-contamination as "essential reduction of value".
Therefore the polluted farmers who either cannot sell their harvests or
can sell it only with a GMO-label canclaim financial compensation. If it
is not possible to identify who caused the contamination, all farmers in
the area, who have grown that detected GMO, are liable for the economic
damage of the non GMO-farmer.

Sounds good in theory but is complicated in practise: the contaminated
farmer has to carry the burden of proof. He has to do the testing and pay
for it, he has to investigate - with the help of the public register -
who has caused the contamination and he has to pay for the trial. It is
likely that he will suffer problems with his image - which can cost him
his economic existence; it is open whether he will be compensated because
it is possible that he has to go through all the courts. Last but not
least he will experience a lot of stress with his neighbours.

Due to the fact that there are many open questions and the unfavourable
political situation BUND (Friends of the Earth Germany) supports GMO-free
regions: For more (German) information see the website:
http://www.faire-nachbarschaft.de

Guest Contributor:
Heike Moldenhauer
 GMO Campaigner
BUND (FoE Germany)

1. Article 16c 
2. Article 16a
3. Article 36a




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GENET
European NGO Network on Genetic Engineering

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