GENET archive


6-Regulation: German biotech law under threat

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

TITLE:  German biotech law under threat
SOURCE: Biotech Mailout, Friends of the Earth Europe, by Heike Moldenhauer
        BUND - Friends of the Earth Germany
DATE:   Jul 2005

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German biotech law under threat

The German Chancellor, Gerhard Schröder, shocked many people by
announcing a general election for September - one year before the
official date of the next election. His move was an attempt to lift the
political blockade that has existed because of his small majority in
government. Because of the oppostion´s majority in the Bundesrat - the
second chamber besides the parliament (the Bundestag) - each proposed law
can either be watered down or completely blocked by the Conservatives and
the Liberals.

This has implications for the German biotech law (see Mailout December
2004). Even without the new elections, the new law was coming under
increasing attack from the opposition parties. Officially, the German
biotech law - the implementation of the EU´s Deliberate Release Directive
2001/18 - entered into force in February. But the opposition wants to
abolish all measures protecting GMO-free agriculture and food production.
In the case that there is a change in government, the Conservatives and
Liberals have declared a general revision of the law. Their aim is
becoming clear - no more hurdles for GMO growers.

Key points of planned amendments:

- Access to the public register shall be limited
Everybody who intends to grow GMOs commercially has the obligation to
report this only three weeks in advance (instead of the three months
notice period now). Only general data (postal code, community etc) will
be provided via the internet (instead of the exact location now). Only
people who have a "justified interest" like farmers, beekeepers and
estate owners (instead of the public in general now) will be able to get
exact information about the field locations and can ask the responsible
authorities where the fields are. The implications of this are that when
conventional and organic farmers finally have the information they need,
the GMOs are likely to already be in the ground. They will have no chance
to convince their neighbours not to grow GMOs or to discuss cultivation
management measures such as separation distances, etc.

- Joint and specific liability shall be delete
The current compensation scheme for economic damage means that all
neighbouring farmers who might have caused cross-contamination are
responsible for polluted harvests. If there are several GMO growers in a
specific area and it cannot be determined exactly who caused the damage,
the non-GMO grower will be free to decide which neighbour to claim
compensation from. This legal construction will be replaced by a
compensation fund, but it is unclear who shall pay for it. The seed
industry refuses to do so and cannot be forced to, the mighty mainstream
farmers' association (Deutscher Bauernverband) supports the idea of a
compensation fund and recently praised the Danish model (where tax payers
have to pay for economic damages - see Mailout July 2004). Another idea
suggested by the Conservatives is to copy the Dutch model where all
farmers have to pay - organic farmers included (see Mailout December 2004).

- No more protection of ecologically sensitive areas
The paragraph shall be deleted.

- The possibility to withdraw authorisationsfor specific GMOs if
coexistence is not possible
The paragraph shall be deleted.

In another development, the current German government has postponed the
listing of Monsanto's maize MON810 in the German national seed catalogue.
Originally, three varieties of MON810 should have been listed in the
German national seed catalogue by the end of May, but the Federal
Ministry of Consumer Protection, Food and Agriculture (the Greens) has
postponed its decision. The reason they give is that there are still
unanswered legal questions the Ministry wants to clarify whether the
notification procedure was correct or not. Monsanto has apparently
threatened to take proceedings against the Ministry. If, however, if
there is a change in government this autumn, as all the polls predict,
Monsanto will only have to wait until this autumn for the listing.

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

TITLE:  Environmental infringements: Commission takes legal action against
        Germany and Spain
SOURCE: European Commission, Press Release IP/05/947
DATE:   15 Jul 2005

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Environmental infringements: Commission takes legal action against
Germany and Spain

The European Commission has decided to continue legal infringement
procedures against Germany and Spain for breaches of EU environmental
legislation. Germany has received a first warning because it has not yet
complied with a 2004 ruling by the European Court of Justice. The Court
had condemned Germany for failing to incorporate into its national laws
an important EU law on genetically modified organisms (GMOs). Spain will
be referred to the Court in two cases involving wild bird protection and
protection of the Earth's ozone layer. In two other cases, concerning
public access to environmental information and strategic environmental
assessment, Spain has received final warnings before possible Court
action. These actions are part of a series of environment-related
infringement decisions against several Member States, which the
Commission is currently announcing.

Environment Commissioner Stavros Dimas said: "I know that Member States
understand the need to address the concerns of their citizens; concerns
that legislation must ensure a healthy environment and a high quality of
life. I am confident that Germany will act quickly to bring its laws on
GMOs in line with European legislation, and that Spain will continue to
work towards closing the gaps in its environmental protection."

Germany: first warning to comply with Court ruling concerning GMO legislation

The Commission has sent Germany a first written warning for non-
compliance with a judgement delivered by the European Court of Justice on
15 July 2004 (case C-420/03). The case concerns the failure to adopt and
communicate national legislation to give effect to an EU law[1] aimed at
controlling the release of genetically modified organisms (GMOs) into the

This law is at the centre of the EU's GMO legislation and aims to ensure
that only authorised GMOs are placed on the market and released into the
environment to avoid risks to human health and the environment. The
authorisation procedures includes, among other things, a scientific
safety check and environmental risk assessment, information to the
public, and close monitoring after the release. The deadline set for
adopting this legislation was 17 October 2002.

In February 2005, Germany informed the Commission that it had partially
transposed the legislation and that additional legislation was being
finalised to fully transpose the Directive. However, so far no further
transposition legislation has been communicated to the Commission.

Spain: two Court referrals for breaches of EU legislation on nature
conservation and the protection of the ozone layer

The Commission has decided to refer Spain to the European Court of
Justice in two cases.

Protection of wild birds: One case relates to a planned irrigation
project in the province of Lleida in Catalonia that would severely affect
an area hosting a number of steppe bird species protected under EU law.
They include Bonelli's Eagle, the Stone Curlew, the Black-bellied
Sandgrouse, the Pin-tailed Sandgrouse, the Dupont's Lark and the Lesser
Grey Shrike. In the EU's Birds Directive of 1979[2], they are listed as
particularly threatened and in need of special conservation measures.
Spain should have classified the habitats of these steppe birds as
Special Protection Areas (SPAs) under the Directive, but has failed to do
so. As a matter of fact, the Commission has already referred Spain before
the European Court of Justice for the lack of sufficient designation of
SPAs at a national level (see C-235/04). Catalonia is one of the
Autonomous Communities in Spain where, in the Commission's view, further
protection areas should be classified.

In 2004, the Commission sent Spain a first and then a second written
warning (see IP/05/46 from 14 January 2005), asking Spain not to adopt
any project that might alter the habitat of the endangered bird species
in areas that the Spanish authorities had failed to classify as SPA in
spite of their ornithological values. In response, the Spanish
authorities announced their intention to classify new SPAs in the region
of Catalonia which would include the steppe area. However, this new
proposal has not been made official yet.

Protection of the ozone layer: The second case that the Commission will
bring before the Court of Justice concerns Spain's failure to comply with
the EU Regulation on substances that deplete the ozone layer[3]. This
Regulation aims to curb and eventually eliminate the use of substances
that destroy the ozone layer. The ozone layer in the stratosphere
protects life on Earth from harmful solar rays, which can cause skin
cancer and blindness in humans and also negatively affect animals and

The Regulation requires Member States to take measures to ensure the
recovery, recycling, reclamation and destruction of the controlled
substances and to prevent leakages. Member States have very detailed
reporting obligations. They must report to the Commission the quantities
of substances recovered, recycled, reclaimed or destroyed; describe the
measures taken, including information which organisations and users have
been assigned which tasks; detail the minimum qualification requirements
for all personnel involved; and provide information on annual leak checks
for equipment containing more than 3 kg of ozone depleting substances.

After warnings from the Commission (see IP/04/84), Spain has sent some
reports, but some important information is still missing.

Spain: two further final warnings

Alongside several other Member States, Spain has also received two final
warnings before possible Court referrals for failure to transpose into
its national legislation two EU Directives: the first concerns public
access to information on the environment held by public authorities[4]
(see IP/05/892), and the second is a Directive aimed at assessing the
environmental effects of a wide range of plans and programmes (see IP/05/897).

Legal Process

Standard procedure

Article 226 of the Treaty gives the Commission powers to take legal
action against a Member State that is not respecting its obligations.

If the Commission considers that there may be an infringement of EU law
that warrants the opening of an infringement procedure, it addresses a
"Letter of Formal Notice" (first written warning) to the Member State
concerned, requesting it to submit its observations by a specified date,
usually two months.

In the light of the reply or absence of a reply from the Member State
concerned, the Commission may decide to address a "Reasoned Opinion"
(final written warning) to the Member State. This clearly and
definitively sets out the reasons why it considers there to have been an
infringement of EU law and calls upon the Member State to comply within a
specified period, normally two months.

If the Member State fails to comply with the Reasoned Opinion, the
Commission may decide to bring the case before the European Court of
Justice. Where the Court of Justice finds that the Treaty has been
infringed, the offending Member State is required to take the measures
necessary to conform.

The infringement actions mentioned in this press release have been taken
under Article 226 unless otherwise stated.

'Follow-up' procedure

Article 228 of the Treaty gives the Commission power to act against a
Member State that does not comply with a previous judgement of the
European Court of Justice, again by issuing a first written warning
("Letter of Formal Notice") and then a second and final written warning
("Reasoned Opinion"). The article then allows the Commission to ask the
Court to impose a financial penalty on the Member State concerned.

For current statistics on infringements in general see:

For rulings by the European Court of Justice see:

[1] Directive 2001/18/EC of 12 March 2001 on the deliberate release into
the environment of genetically modified organisms and repealing Council
Directive 90/220/EEC
[2] Council Directive 79/409/EEC on the conservation of wild birds
[3] Regulation (EC) No 2037/2000 of 29 June 2000 on substances that
deplete the ozone layer
[4] Directive 2003/4/EC of 28 January 2003 on public access to
environmental information and repealing Council Directive 90/313/EEC


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