Jun 18, 2004

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Red-green government splits Genetic Engineering Act

Liability and site register without Bundesrat approval

(17/18 June) The red-green coalition government has split the draft Genetic Engineering Act into two parts in order to avoid the requirement for approval by the Bundesrat for key issues surrounding the cultivation of GM crops. Using its Bundestag majority, the German government will now be able to push through its proposals concerning the site register and liability regulations for GMO contamination of conventional crops. The federal states may be able to delay the legislation, but will no longer be able to prevent it coming into force.

On Wednesday 16 June 2004, a substantially modified draft of the amendment to the Genetic Engineering Act was passed by the Bundestag’s Committee for Consumer Protection with the votes of the red-green coalition. The government’s original bill had been reworded and shortened in such a way that approval by the Bundesrat is now no longer a requirement.

Two days later, the Bundestag passed the remaining part of the bill in its second and third reading. It includes liability regulations and provisions for a publicly accessible site register. The revised draft sees much stricter handling of both issues than the original draft proposed by the federal government.

The opposition was incensed, particularly since they had received the 40-page document only a few hours before the vote took place. When the coalition parties in the Bundestag’s Committee for Consumer Protection refused to postpone the vote to the following day, the members of the opposition parties left the meeting in protest.

The main reason the red-green government gives for taking out the passages requiring Bundesrat approval is to speed things up. The original draft as proposed by the federal government was unlikely to have achieved a majority vote in the Bundesrat. The views of the government and the federal states are too far apart on many of the proposed regulations. In a statement issued at the beginning of April, the Bundesrat had called for about a hundred amendments to the draft legislation. Some of these have been included in the revised version now passed.

However, as far as liability and coexistence are concerned, the federal government was not prepared to compromise. On the contrary: these provisions are now stricter than in the original draft. They have been rephrased in such a way that they are ‘of no concern to the federal states’ and can therefore be passed without requiring Bundestag approval.

Liability: compensation even for GMO contamination below the 0.9% threshold

The ‘slimmed-down’ version of the legislation, which no longer requires Bundestag approval, has retained the controversial concept of joint and several liability. Conventional and organic farmers are entitled to compensation if GMO contamination of their crops from a neighbouring field leads to loss of income. If the contamination cannot be traced back to a single source, the new legislation holds all GMO farmers within a region liable, irrespective of fault.

Under the original draft, conventional and organic farmers were entitled to claim compensation only if the contamination of their crops with GMO material exceeded the labelling threshold of 0.9%. Now even lower GMO levels will give entitlement to compensation if they lead to economic losses.

Nationwide site register

In order to introduce a publicly accessible site register listing all GMO fields without the Bundesrat’s approval, the government has abandoned its original proposal of introducing a site register in each federal state. Instead, it now proposes one central nationwide register, which is to be maintained by the Federal Office for Consumer Protection (BVL). The publicly accessible part will now list all GMO fields on a plot-by-plot basis. In the original draft, only the districts containing GMO fields were to be listed in the publicly accessible part of the register. Farmers and beekeepers with a ‘legitimate interest’ will now also be able to request the names and addresses of GMO-farming neighbours.

Special conditions for the approval of GMO cultivation in ecologically sensitive areas will be incorporated in the nature protection legislation.

‘Necessary’ says the government – ‘dubious’ says the opposition

The government coalition parties SPD and Bündnis 90/The Greens regard the latest draft of the legislation as a ‘great success’. Their spokeswomen Waltraud Wolff and Ulrike Höfken praised in particular the ‘speedy implementation of a transparent site register and comprehensive liability provisions to safeguard GM-free food production’.

The opposition, on the other hand, called the government’s swift rewrite of the legislation ‘dubious’ and said it showed a disregard for parliament. During Monday’s expert panel hearing, the issue was raised that the timetable did not leave enough room for proper consideration of the experts’ statements. Much of the discussion at the hearing centred on liability criteria and the pros and cons of a liability fund, as well as issues surrounding the detailed, publicly accessible site register.

Bundesrat: can delay, but not block

Following the law’s approval by the Bundestag, the draft will be discussed once again by the Bundesrat. However, even if the federal states reject the draft legislation, the red-green majority in the Bundestag will still be able to pass the Genetic Engineering Act.

The parts that have been removed from the original bill and which still require the Bundesrat’s approval are to be negotiated with the opposition at a later date. They mainly include provisions on procedures and concern in particular the operation of genetic engineering facilities and the authorisation of release experiments. Also postponed are the rules and regulations concerning ‘good farming practice’ for GMO cultivation and detailed provisions for the implementation of GM monitoring.

Germany’s exit from agricultural biotechnology?

While the tighter Genetic Engineering Act was welcomed by environment and consumer organisations opposed to genetic engineering, science and industry representatives see it as putting a stop to innovation and believe it will result in ‘Germany’s de facto exit from agricultural biotechnology’. Following the Bundestag’s decision, KWS Saat AG, Germany’s largest plant breeder, declared, that ‘under this legal framework’ they would be ‘unable to carry out field experiments in Germany’.

Equally, the German Farmers Union (DBV) expressed its regret that the new law had failed to ‘safeguard the coexistence of GM and non-GM crops’. The liability provisions would lead to an incalculable economic risk for farmers wishing to grow GM crops. ‘The DBV sees no option but to advise farmers against the cultivation of GM crops.’