May 29, 2009
Higher Administrative Court in Lüneburg upholds ruling by lower court
German ban on cultivating genetically modified MON810 maize in 2009 is final
The ban on cultivating MON810 maize, issued by Germany’s Agriculture Minister Ilse Aigner on 14 April 2009, will remain in force for 2009. Following a recent ruling by the Braunschweig Administrative Court, the Higher Administrative Court of Lower Saxony in Lüneburg has now also upheld the legality of the decision. The court’s reasoning states that there do not need to be confirmed scientific findings for a temporary cultivation ban. The authority responsible also has considerable discretion when it comes to taking decisions, which the courts cannot examine in full.
Maize field: damage caused by the European corn borer (Thüringen, 2004). In regions severely affected by pests, farmers will now use pesticides to control the European corn borer.
Monsanto had submitted an urgent appeal against the Agriculture Minister’s decision in an attempt to delay immediate enforcement of the cultivation ban until a decision is reached in the main court proceedings. The Braunschweig Administrative Court rejected the appeal, prompting Monsanto to appeal to the Higher Administrative Court in Lüneburg. However, the judges consider that Monsanto’s appeal stands little chance of success in the main court proceedings, and therefore ruled that the public interest in seeing the ordinance issued by the Federal Office of Consumer Protection and Food Safety (BVL) enforced immediately should take precedence.
The reasons given for the judgement state that confirmed scientific findings do not need to be produced because the ban is only a temporary measure. The final assessment of the new findings and the decision on whether to approve MON810 has to be taken at European level. National courts do not have the right to anticipate the European decision-making process. The court’s reasoning also states that a temporary ban does not have to be based on the discovery of a specific risk. Because of the importance of human health and environmental protection, it is sufficient if an abstract risk is predicted based on new information.
The court also pointed out that the national authorities have a considerable amount of discretion that the courts are not able to examine in full. It was not the court’s job to replace the assessment of the relevant authority with an assessment of its own. The court’s job was simply to check whether the authority had exceeded its remit and taken an arbitrary decision. This was not the case. It was also admissible to include non-scientific aspects in a ban decision, such as MON810 cultivation bans in other European countries. The fact that a ban on cultivating MON810 has been in force in Austria since 1999 and that the ban has been upheld, despite attempts by the EU Commission over several years to have it overturned, was a clear argument against the BVL’s decision having been taken arbitrarily.
The commercial interests of Monsanto and its licensees and the farmers affected were, in the court’s view, to be regarded as subordinate to the protection of human health and the environment. Those involved had acted at their own risk, since it was evident that the potential risks of genetically modified plants were still under discussion and that governments had repeatedly made use of safeguard clauses.
The ruling means that the ban on cultivating MON810 will remain in place in Germany, at least for 2009. A decision in the main court case, which is still pending with the Braunschweig Administrative Court, is due in the autumn.