Jun 1, 2004

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Genetic Engineering Act in the Bundestag:

No compromise in sight

(1 June 2004) On 27 May the German government brought its proposed new Genetic Engineering Act before the Bundestag. The ensuing debate in the German parliament saw a clash between the diametrically opposed views of the government coalition and opposition parties. The most controversial issues continue to be the liability provisions and the rules on coexistence of conventional and GM crops. The German Minister for Consumer Protection, Renate Künast, has announced that, if necessary, she will split the legislation into two parts. This would enable the government to pass the proposed liability regulations without approval from the federal states in the Bundesrat.

Gerda Hasselfeldt, CDU/CSU: “This bill entails extra bureaucracy. It will cause greater uncertainty, so will fail to produce legal security. The liability regulations are arbitrary. Instead of encouraging, it hampers and obstructs.”

Renate Künast, Minister for Consumer Protection: “What we need is certainty – certainty for our farmers. They need to know what is happening on their fields and they need to be able to decide which opportunities they want to take advantage of.”

In terms of content, the first reading of the draft legislation did not hold anything new. With the new Act the red-green government coalition aims to protect “GM-free” agriculture and is proposing special rules and liability provisions for the cultivation of GM crops. The opposition considers the proposed regulations to be too strict and is concerned they will prevent the cultivation of genetically modified plants, as well as research into green genetic engineering, altogether.

Both sides accused each other of delaying the legislative process. According to the opposition, the federal government should really have submitted the new legislation by the autumn of 2002 to incorporate the EU’s Deliberate Release Directive (2001/18/EC) into German law. Meanwhile, the coalition parties accuse the CDU/CSU-governed federal states of blocking the bill in the Bundesrat and thereby preventing the establishment of legal security for both conventional and GMO farmers.

Both the government coalition and the opposition parties see their positions strengthened by test plantings of GM maize that started in May. Speakers from the government coalition parties criticised the programme, which was initiated by the federal state of Saxony-Anhalt, for attempting to create facts before the legislative framework for cultivation and accompanying research was properly in place. The CDU/CSU and FDP camp emphasised that the cultivation of GM maize was legal – after all, it had been authorised by the Federal Office of Plant Varieties. Rather, they claim, the federal government has failed in the past to carry out its own test plantings to collect data about the coexistence of GM and conventional plants.

A separate law on liability?

On 14 June there will be an expert hearing. The Parliamentary Committee for Food, Agriculture and Consumer Protection will deliberate on the bill a couple of days later and prepare its recommendation. This will then be put to the vote in a second and third reading in the Bundestag and Bundesrat. However, their positions are so diametrically opposed that an agreement between the two parliamentary bodies seems extremely unlikely. It is also doubtful whether the Mediation Committee will be able to bring about a compromise.

In an interview with the Berliner Morgenpost, the Minister for Consumer Protection, Renate Künast, announced that in this case she would be able to regulate the issue of liability in separate legislation – without approval from the Bundesrat. And this also applied to the proposed site register, which will list all fields with GMO plants. Establishing rules of “good farming practice” for the cultivation of GM crops, however, is not possible without the approval of the federal states.

Who is liable in the case of outcrossings?

The debate about liability centres around the criteria for compensation payments in the event of contamination of conventional or organic crops with GM crops from neighbouring fields through outcrossing or other transfer methods, and any subsequent losses in income as a result of produce having to be labelled as genetically modified. Two models in particular are currently under discussion:

• Joint and several liability: in cases where the GMO contamination cannot be traced back to a single source, the current draft of the new Act provides for joint liability of all neighbouring GMO farmers – irrespective of fault. However, the opposition parties and federal states are demanding that farmers growing GM crops should be liable for compensation only if they have contravened the rules of “good farming practice”.
• Liability fund: the Bundesrat favours a fund model as an alternative solution. Any economic damage that cannot be attributed to the culpable behaviour of individual farmers should be compensated from a liability fund. The federal states suggest that this should be financed via contributions from seed companies, GMO farmers and the federal government. However, Künast objects to using taxpayers’ money for this purpose.