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Federal Constitutional Court on the Genetic Engineering Act

“An appropriate and well-balanced adjustment of the conflicting interests”

Germany’s Federal Constitutional Court in Karlsruhe has dismissed as unfounded the action brought by the Land Saxony-Anhalt against the Genetic Engineering Act, ruling that the provisions for the cultivation of genetically modified crops and liability are compatible with the Basic Law, Germany’s constitution.

Federal Constitutional Court: Restrictive provisions for the cultivation of genetically modified crops are compatible with the Basic Law

Horst Rehberger, former Minister of Economic Affairs in Saxony-Anhalt, brought the action. He was disappointed that the court upheld the existing regulations, claiming that the legal framework in Germany was out of date. Photo: Thurmann

The case brought by the Land Saxony-Anhalt focused primarily on the special provisions that farmers have to comply with when growing GM crops approved for cultivation in the EU. These regulations date back to 2004 from the Genetic Engineering Act passed by the Red-Green coalition at the time of Social Democrats and Greens, and have remained unchanged in the amended Act passed by the Grand Coalition of Christian Democrats and Social Democrats. In particular, the claim was that the rules on liability and on the public GMO location register violated the right to occupational freedom enshrined in the German constitution, the fundamental right to property and the principle of equality before the law.

With today’s ruling, the Federal Constitutional Court dismissed the action and upheld the restrictive provisions for the cultivation of GM plants. The reasons given by the judges made reference to “the particular duty of care of the legislature in view of the fact that the state of scientific knowledge has not yet been finally established when assessing the long-term consequences of the use of genetic engineering.”

In making law, it must not only balance the use of genetic engineering with protection against potential risks, but must also comply with its constitutional duty to protect natural resources for future generations. As Heribert Prantl writes in the Süddeutsche Zeitung, it is the first time that the Federal Constitutional Court has pronounced a judgement with express reference to this article, which was introduced into the Basic Law in 1994.

The judges consider the restrictive rules for the cultivation of GM crops to be “suitable and necessary” to achieve the objects prescribed by law. They are also appropriate.

Saxony-Anhalt also failed in its attempt to restrict public access to the location register. The court did not agree with their reasoning that extreme anti-GM activists could find information there about the precise location of fields with GM crops. In the court’s view, the location register creates transparency and makes an “important contribution to the formation of public opinion”. Wilful destruction of genetically modified crops should be dealt with by the means of police and criminal law.

The court also upheld the current liability provisions in the Genetic Engineering Act, saying that they were integrated in the system of private law relating to neighbours, and represented “an appropriate and well-balanced adjustment of the conflicting interests”. A farmer who grows GM plants will continue to be liable for any economic loss caused by GMOs outcrossing to conventional crops. The GMO farmer remains liable even if he has respected all the rules and is not therefore to blame for the losses caused by the outcrossing. If a single originator cannot be identified, all the GMO farmers in the region will be jointly liable.

At the moment, the Amflora potato is the only GM crop that can be grown commercially in Germany. Approval for the cultivation of GM maize (MON810) was suspended in April 2009 by Germany’s Minister of Agriculture, Ilse Aigner (Christian Social Union). Binding rules of good farming practice have been in place since 2008 for the cultivation of GM crops, and in particular for GM maize. They stipulate that a minimum distance of 150 metres must be respected between fields with GM maize and fields with conventional maize, and a distance of 300 metres for organic maize.

The Genetic Engineering Act is due to be amended again before the end of the year. In particular, the regions are to be given greater latitude to set their own rules for the cultivation of GM crops. It is doubtful, however, whether this will be compatible with the ruling of the Constitutional Court. The ruling affirms that it is the task of the national government to ensure standard regulations nationwide. Ilse Aigner had previously announced that she would wait for the decision of the Constitutional Court before presenting a draft amendment to the Genetic Engineering Act.

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