Aug 2, 2004

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European Commission response to German genetic engineering law

Brussels demands redraft

(30 July 2004) In an official statement, the European Commission has criticised the German government’s draft Genetic Engineering Act, which, in its current draft, is seen as being in breach of EU legislation. The German government has been asked to revise the draft and resubmit it to the Commission for approval. If Germany fails to comply with this request the Commission will start formal enforcement proceedings.

Liable despite adhering to good farming practice? The European Commission criticises the fact that liability provisions in the new Genetic Engineering Act lead to incalculable risks for GM farmers.
(Photo: field with Bt maize)

The European Commission is notified as a matter of principle of all new laws and regulations that are passed in the member states. The Commission then checks whether the legislation conforms to EU law and the Community treaties. The German Genetic Engineering Act has not yet been formally agreed and a formal notification is therefore not yet possible. However, the Commission has already expressed its misgivings about the current version of the German Genetic Engineering Act in a detailed opinion statement. Germany has now been asked to take account of this in a redraft. The Commission will then be formally notified of the final and agreed version of the Act.

Germany applying its own rules

In its statement of 26 July 2004, the European Commission ruled that the German government’s draft legislation breaches several EU laws and contravenes basic principles of the EC Treaty.

The Commission criticised the German government for failing to correctly transpose EU legislation in its Genetic Engineering Act. In addition, it accused the German government of trying to undermine formally agreed and legally binding EU standards with its own national legislation.

• The reason for the review of the Genetic Engineering Act was the long-overdue incorporation of EU legislation such as the Deliberate Release Directive (2001/18) into German law.
• The Commission lists a number of individual provisions in the German draft legislation, which the Commission feels do not implement the EU Directive sufficiently, if at all. These include, for example, the provisions for informing the public and for labelling GMOs.
• The two EU Regulations (EC) No 1829/2003 on genetically modified food and feed and (EC) No 1830/2003 on traceability and labelling have been in force since April 2004. They apply directly in all member states and do not require national legislation to implement them. According to the case law of the European Court of Justice, introducing national rules for the implementation of EU Regulations is considered a breach of Community law.
• The Commission feels this applies to parts of the German legislation, as submitted by the red-green coalition. In several instances the text does not incorporate the provisions agreed by the EU and already in force in all other member states, but introduces its own standards ‘through the back door’. If the German law were to enter into force in its current form, a different legal framework would apply in Germany – and in particular in German agriculture – from the rest of the EU.

Commission criticises German rules on coexistence

In particular the provisions concerning liability and coexistence of GM and conventional crops – which are also fiercely debated within Germany – are considered by the Commission to be in breach of EU law.

• German thresholds? Economic losses resulting from outcrossings or other adventitious presence of GMOs in conventional harvests must be compensated. This applies if the GMO contamination exceeds the 0.9% threshold laid down in EU regulations, thereby triggering labelling requirements.
  However, the German law provides for liability and compensation even below this threshold, for instance in situations where stricter limits have been agreed between the farmer and his buyers. The Commission regards this as ‘additional national labelling requirements’ and an inadmissible attempt to introduce national thresholds.
• Liability: one-sided risks The Commission is equally critical of the German proposal for joint and several liability without fault. This rule makes German GMO farmers liable even if they abide by the ‘rules of good farming practice’, which have yet to be agreed. In addition, all GMO farmers of a region could be jointly liable in the event of economic losses incurred by a conventional farmer.
  Making farmers liable for any losses irrespective of their adherence to good farming practice is deemed ‘unacceptable’ by the Commission. Furthermore, it could lead to farmers being liable for losses they did not cause – for instance if seed contains too much GM material, or if a conventional farmer fails to abide by good farming practice. In general, the Commission is concerned that the liability provisions in the German law would lead ‘to a high and incalculable risk for GMO farmers’.
• EU authorisations apply in Germany: A key feature of the EU genetic engineering regulations is the EU-wide authorisation procedure, which includes a thorough scientific safety assessment. Each approved GM plant is subjected to specific requirements, which have to be adhered to in its cultivation and marketing and which are binding throughout the EU. According to the Commission, some provisions of the German Genetic Engineering Act can be seen as additional and, in places, inappropriate measures, leading to a separate legal framework in Germany from that in other member states. In addition, the German law is seen as requiring precautionary measures even where these are unnecessary.
• Federal states are confirmed in their objection: The European Commission’s statement confirms the majority of federal states in their criticism of the new legislation. On 9 July they had rejected the draft legislation in the Bundesrat and called in the Mediation Committee.
  Even if the red-green coalition government eventually succeeds in pushing through its legislation in the Bundestag, the text could still be revised during the mediation process, which will start after the summer break. However, if the Berlin government sticks to its current course, conflict with the Commission and, ultimately, European Court proceedings will be inevitable.