Jan 26, 2006

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German government hopes to avoid penalty payments

Cabinet: First amendments to the Genetic Engineering Act

On the 18th of January 2006 the German government agreed a draft amendment to the Genetic Engineering Act. Initially, however, the government intends to carry out only those amendments that are required to implement European Union regulations. A more comprehensive amendment to the act, which the new government had announced in its coalition agreement, will therefore be postponed for the time being. Conditions and liability regulations implemented by the previous red-green government for the cultivation of genetically modified plants will therefore remain in force at least for this growing season.

The new black-red governing coalition had originally announced that it would do more than just make the amendments to the Genetic Engineering Act required to fully implement the European Deliberate Release Directive (2001/18). It intended to completely amend the statutory provisions on green genetic engineering so as to “promote research and application in Germany”. It was also its intention to water down some of the restrictive regulations which the previous government under the direction of Renate Künast, Consumer Protection Minister at the time, had implemented as recently as 2004. However the coalition partners were clearly unable to agree in the short-term, especially with regard to the announced changes to the liability law.

Horst Seehofer, Federal Minister for Food, Agriculture and Consumer Protection: “For the amendment to the Genetic Engineering Act, the protection of people and the environment has top priority.”

Under the direction of the Minister of Agriculture, Seehofer, the federal government therefore initially amended and adapted a range of procedural rules so that they comply with the EU Deliberate Release Directive which has been in force since October 2002. In so doing the government hopes at the eleventh hour to avoid the penalty payments imposed by the European Commission.

Back in July 2004 the European Court of Justice found that Germany was in breach of contract due to the delayed implementation of the Deliberate Release Directive. In December 2005 the Commission had set a final deadline of 19 February. From this date it could impose daily penalty payments of up to 800,000 euros.

First round of amendments: Implementing EU requirements, avoiding penalties

On the basis of the EU Deliberate Release Directive, the new regulations that need to be introduced relate primarily to formal and procedural requirements.

• Threshold values for non-EU-approved genetically modified plants: The government can use a statutory ordinance to set a lower tolerance threshold than the 0.5% which otherwise applies throughout the EU for accidental or technically unavoidable contamination by GMOs not yet approved in the EU. The prerequisite in each case is that the EU authorities have already judged these GMOs to be safe. The federal government can further specify which measures companies must provide evidence of to avoid such contamination as far as possible
• Informing the general public: The new Act should stipulate when the general public must be informed of prohibited field trials, marketing bans or suspected harmful effects of genetically modified plants and products.
• Monitoring plan: In applications for field trials of GM plants, applicants must submit plans for monitoring potentially harmful effects.

Further amendments include regulations relating to confidentiality and a simplified procedure for licensing certain field trials. With the approval of the Bundesrat (Upper House), the federal government can also pass a series of statutory instruments containing details for implementing individual passages of the Genetic Engineering Act. The government has passed its draft amendment on to the coalition parties in the form of a so-called “formulation guide”. On the basis of this the parties have drafted a bill, which was introduced to the Bundestag (Lower House) on 26 January.

Second round of amendments: Liability and cultivation of GM crops

In a further round of amendments, the Minister of Agriculture, Seehofer, intends to reformulate in particular passages relating to liability and coexistence so that the cultivation of genetically modified plants is associated with fewer conditions and liability risks for farmers. At present farmers who use such plants are obliged to compensate their conventional or organic neighbours for loss of income if, as a result of GMO contamination, the latter have to sell their crops at a lower price. It is irrelevant in this case whether or not the GM farmers have complied with the growing regulations for GM crops. If the GMO contamination could have originated from the fields of several farmers, then they are jointly liable.

Seehofer wants to make the liability of farmers who grow GM crops dependant on whether they can be shown to be at fault. The industry should also be encouraged to set up a compensation fund for cases where GMO contamination has occurred despite compliance with growing regulations or when the originator cannot be identified.