Brussels, 23 Feb 2004
On 11 February 2004 the Federal Government tabled a draft law to reform the law on genetic engineering. The legislative process will probably be completed in summer or autumn 2004.
As well as implementing 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 (OJ L 106/2001, p. 1), the draft law contains fundamental rules on coexistence and liability.
Coexistence - meaning the coexistence of farming using genetic engineering techniques with GMO-free (conventional and organic) farming is a matter of great importance for Germany. Such coexistence is to be realised, in conformity with the Commission Recommendation of 23 July 2003 on guidelines for the development of national strategies and best practices to ensure the coexistence of genetically modified crops with conventional and organic farming, by the adoption of "good practice" principles for the cultivation of genetically modified crops, together with a right of access for neighbouring landowners to information from the list of sites and civil provisions for prevention and compensation.
The aim of "good practice" is that licensed genetically modified organisms should be handled in a responsible way. It is targeted at three different groups: a basic duty of care is being established which applies to all who cultivate, process or place on the market licensed genetically modified organisms.
In addition, good practice principles which must be observed by anyone who wishes to cultivate genetically modified crops or keep transgenic animals are being defined. Anyone who places genetically modified organisms on the market will also be required to supply product information. Good practice must take into account the many possible pathways by which genetically modified organisms may enter the production process. In crop cultivation, for example, this covers seed production, sowing, harvest, transport and storage. The user must also have knowledge of the genetic outcrossing and other dissemination characteristics of the genetically modified organism, and of appropriate equipment and production management methods, in order to prevent substantial harm to neighbouring tracts of land by genetic outcrossing.
A further element of coexistence is the list of sites. It is not only to enable the authorities to monitor the cultivation of genetically modified crops and ensure transparency for the public, but also to contribute to safeguarding the coexistence principle. Plans to cultivate genetically modified organisms must be reported by the person farming the land to the competent authority at least two months before cultivation begins. Neighbouring landowners have a right to complete information. This promotes communication between those concerned and allows agreements to be made before cultivation starts.
Inclusion of a new liability provision complements the rules on the coexistence of different methods of agricultural production. Civil claims for prevention and compensation are possible where contamination by GMOs has substantially interfered with the use of someone else's property. Interference with property and the associated financial losses can arise through unintended genetic outcrossing or other contamination by genetically modified organisms because the profits earned from GMO-free products are reduced - perhaps in the future as well.
The new rules define fundamental principles of the laws relating to relations between neighbours, i.e. the concept of substantial interference. Care was taken to cover the following cases where interference with another's property through unintended genetic outcrossing or other contamination by genetically modified organisms may occur:
- Products may not be placed on the market because no authorisation has been given for placing on the market the planned use of the GMOs introduced by genetic outcrossing or some other means, in particular where the GMOs in question are present as a result of releases.
- Products must be indicated as "genetically modified" in accordance with the applicable thresholds.
- They cannot be indicated as products of organic farming in accordance with the principles of Council Regulation (EEC) No 2092/91 of 24 June 1991 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs.
- The possibility available under German law of indicating them as "GMO-free" does not apply.
Where thresholds exist, e.g. for indicating genetically modified foodstuffs, those thresholds are used to assess whether interference is substantial. In addition, joint and several liability is provided for. This means that where, in an individual case, more than one person is responsible for the unintended presence of genetically modified organisms in GMO-free stocks and it is not clear at the outset that each person is only partly responsible, any one of a number of such persons can be held liable for all the damage on his own.
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