German regulation to ensure coexistence of genetically modified, conventional and organic agricultur

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German regulation to ensure co-existence of
genetically modified, conventional and organic
agricultureWolfgang KoehlerFederal Ministry
of Food, Agriculture and Consumer Protection
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• Legal basis in European Law
• Article 26a of Directive 2001/18/ECMember
  states are entitled to take appropriate measures
  to avoid the unintended presence of genetically
  modified organisms in other products.
• This article was inserted in the Directive by
  Regulation (EC) No. 1829/2003 on genetically
  modified food and feed

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Legal situation in GermanyIn 2004
the German Parliament adopted an amendment to the
Genetic Modification Act implementing Directive
2001/18/EC into German law to ensure GM-free
production and the co-existence of GM-crops and
Non-gm-crops. (Came into force an February
2005)Discussions in Germany about further
amendment to the existing Genetic Modification Act
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• Provisions to ensure the protection of GM-free
  farming (coexistence provisions)
• precautionary principle
• good farming practice
• Register of locations (sites)
• Compensation scheme

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Overall principle of the German Genetic
Modification Act- Precautionary
principleObjectives of the Act- Protection
of human health and the environment- to
guarantee that products, in particular food and
feed, can be produced and placed on the market
conventionally, organically or using genetically
modified organisms (GMOs).
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• Good farming practice
• Directive by the Federal Government
• General part on obligations about sowing of
  GMOs, growth, harvesting, storage, transport and
  documentation
• Annexes with special obligations concerning
  different crops (until now only maize)

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Site registerObligation in European
Directive 2001/18/EC Article 31Member States
shall establish registers for recording the
location of GMOs grown under part C.. ..the
said locations shall be known to the public in
the manner deemed appropriate and in accordance
with national provisions.First purpose
monitoringCan be used as important element for
coexistenceDiscussion about public transparency
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Compensation scheme First alternative
Infringing rules of good farming practice as
stipulated by the directive. German Civil Law
If you act in contradiction to regulations
aimed at protecting other persons, you are
liable to cover the damage. (full liability
also for further damages in the product chain,
joint obligation ( full liability, in case
several neighbours may have caused the
damage) Condition action on purpose
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Compensation schemeSecond alternative
Respecting rules of good farming practice or
acting without purpose German Civil Law has
defensive and compensatory provisions for
significant impediments arising between adjacent
properties, but these contain many undefined
legal terms giving rise to considerable legal
uncertainty. Therefore we amended a provision
in the Genetic Modification Act to define these
terms more clearly, thus creating clarity an
legal certainty.
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In sect. 36a of German Genetic
Modification Act significant impediment is
defined as in Civil LawThere is a case of
significant impediment if a product, contrary to
the intention the neighbour, - cannot be placed
on the market- under the provisions of this Act
or other provisions, may be placed on the market
only if labelled with a reference to the genetic
modification, or- cannot be placed on the
market with a label that would have been
permitted under the relevant l egal provisions
for the production method.
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• It is explicitely stipulated that in cases
• - where several neighbours may have caused the
  significant impediment,
• - and it is not possible to determine which of
  them has caused the impediment by their actions,
• each of them shall be liable for the nuisance.

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Farmer using GM-crops will always be
liable for damages caused by cross-contamination
to neighbours fields, irrespective of whether he
is in line with rules of good farming practice or
not.Political discussions in Germany Undue
restriction for placing on the market of
GMOs??Possible alternative Creation of a fund
which takes over liability for damages in case
the farmer using GMOs is in line with rules of
good farming practice.
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Further (and ongoing) political
discussion in Germany on GMO-compensation
schemeWhat sort of damage is covered by
liability?? (only damage of the product itself,
or damages in the food chain)What about
economic damages caused by contaminations less
than 0.9 (No obligation to label for the
presence of GMOs)
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• Outlook
• Need of harmonisation on European level.
  Implications on trade and market conditions.
  Ongoing discussions on European level.