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Farming regulations: German Constitutional Court confirms biotech law

(25 November 2010) The Federal Constitutional Court of Germany (the BVerfG, seated in Karlsruhe) has confirmed essential stipulations of what is known as the ‘genetic engineering act’. Currently-valid restrictions on the cultivation of genetically modified (GM) plants remain in effect thereby. In 2005, the federal state of Saxony-Anhalt had filed suit against the genetic engineering act put through by the ruling federal government of the time, a coalition of Socialists and Greens.

Saxony-Anhalt had raised particular issue with the regulations on legal responsibility and on the keeping of a site register, claiming that these inappropriately hinder the cultivation of GM plants. According to the suit, such regulations are compatible neither with the freedom of employment ensured by the constitution nor with the guarantee of ownership and the concept of equality before the law.

In the decision announced on 24.11.2010, the Constitutional Court dismissed the suit and confirmed the restrictive regulations applied through the genetic engineering act to cultivation of genetically modified plants. In their legal reasoning, the judges in Karlsruhe cited “…particular duty of care 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”.

With regard to legal responsibility, regulations of the genetic engineering act remain valid therewith. According to these regulations, a farmer who sows GM plants is liable for all economic damage that results in conventional stocks through cross-pollination. This liability is binding even in the case in which the ‘GMO-farmer’ has complied with all directives and therefore bears no fault for the cross-breeding damage. In the case that no individual source of the damage may be identified, all GM-planting farmers of the affected region are collectively responsible.

Legally binding directives on best-practice procedures have existed since 2008 for the cultivation of GM plants and particularly for GM maize. According to these, a minimum distance of 150 metres is to be kept between fields of GM and conventional maize. For fields with organic maize, this distance is even increased to 300 metres.

Saxony-Anhalt also failed in its suit against the public availability of the site register. The federal state had argued that the register would provide radical opponents of gene technology with information on the precise whereabouts of fields with GM plants, which then would be vulnerable to acts of destruction.

Changes in the biotechnology law are still expected this year. In particular, federal states are expected to receive greater leeway in the determination of internal rules for the cultivation of GM plants. Before presentation of a concrete draft in relation to the issue, Minister Aigner had announced her intention of waiting for the decision of the Constitutional Court.


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