GMW: New German government plans illegal law on GMOs

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GMW: New German government plans illegal law on GMOs

" GM WATCH " <info

Sun, 13 Nov 2005 23:10:48 GMT

 

 

 

 

GM WATCH daily

http://www.gmwatch.org

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The new German Government is apparently planning to repeal strict

liability for GMO contamination but the press release below points out

that

its plans contravene both German and European Law.

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Germany plans illegal law on GMOs

Press Release

The Institute for Nature Protection and Nature Protection Law,

Tuebingen

 

The future German government - a coalition of Social Democrats and

Christian Democrats - on November 10th 2005 reached an agreement on a new

German Genetic Engineering Law.

 

The draft provisions de facto repeal liability for contamination of

GMO-free agriculture and take away any incentive for GMO-farmers to take

care of their GMO-free neighbors. But the new provisions contravene both

German and European law:

 

1. Following the law of the WTO and EU-law the German Constitution

favors a market economy basically free of state influence. The

entrepreneur

has the right to take the profit of his activities but also has to

burden the risks of it. The corollary of this principle is that a company

may not generate profits at the expense of the taxpayer. As regards the

environment this tenet is even part of the EC-Treaty as Art. 174

explicitly stipulates the polluter pays principle. If the state via a

fund

bears the costs of GMO contamination inflicted on conventional or organic

farmers, he infringes Art. 174 EC-Treaty. Apart from that, it also

constitutes an illegal state aid according to Art. 87 EC Treaty because

this subsidy distorts the competition between GMO and GMO-free produce.

 

2. But even a fund completely financed by private companies wouldn't be

compatible with long standing tenets of German civil law. According to

§ 906 German Civil Code a polluter who inflicts damage to his neighbor

has to pay compensation even if he complies with good professional

practice or other civil obligation. The reason for that is simple:

neighbors are bound together in a very special way .They depend in their

personal and commercial existence on their plot of land. If there are

incompatible uses of the adjacent properties they can't evade this

conflict.

So the only way to strike a just balance between two neigbors, who both

carry out legally admitted activities but nevertheless harm each other

is to allow the noxious activity but in turn grant the neighbor

compensation claims. This strict liability has been a long standing

tenet of

German adjacent law right from the beginning until today. If the

proposed law would change that in case GMOs are involved the

legislator would

act arbritrarily and thus breach the prinicple of equality stipulated

in Art. 3 of the German Constitution. This unequal treatment specially

designed to promote the GMO industry would be a severe discrimination

against all GMO-free farmers.

 

3. But even if the proposed privilege for GMO farmes is not considered

as foiling German adjacent law, there is an overwhelming chance, that

the concrete design of the new liability rules will run against

fundamental guarantees of the German Consitution such as the

protection of

property of GMO-free farmers (Art. 14) and the obligation of all state

powers to protect the environment (Art. 20a). Besides it would also be a

breach of Europen law such as the Convention on Biodiversity which the EU

is contracting of or the precautionary principle as laid down in Art.

174 EC-Treaty.

 

The Institute for Nature Protection and Nature Protection Law,

Tuebingen

Dr. Christoph Palme, environmental lawyer

Ursrainer Ring 81

D- 72076 Tuebingen

www.institut.naturschutzrecht.net

Phone/Facsimile +49 7071 687038

Mobile 0163 435 4160

Christoph.palme(a)naturschutzrecht.net

 

 

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