general remarks

Legal action against GMO

Dr. Christoph PalmeThe Institute for nature protection and nature

protection law Tübingen, Germany

Herrmannsdorf, 14.10.2006

Dr. Christoph Palme Institut für Naturschutz und Naturschutzrecht Tübingen

General remarks

What for measures can be targeted in the courts?

Who has legal standing?

Necessity of early action and advise

Basic terms and concepts

Biased scientists as real judges

No precedences/new statutes/fishy rulescontroversial legal issuesdetailed examination of each single case indispensable


Right to be free from hunger (Art. 11 para 2 international covenant on social

rights)

The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:

(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;

(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.


Right to be free from hunger (Art. 11 para 2 international covenant on social

rights)

Combatting hunger as main issue

significance in international law: primarily in politics, only indirecty in legal terms

significance in the respective state: depends on its constitution and the whether hunger is an issue


WTO law

• Current state of the panel proceedings

• fairy tales and the truths of the panel decision

• double standard of the EU-commission regarding• risk assessments?

• pivotal statements of the panel report

• the role of the protocol of cartagena

amicus brief?


Penal law/offenses regarding German GE Law

Which persons can be involved?

Unauthorises experimental release: 3 years/fine

Unauthorised placing on the market:

- 1 year/fine, if negligent- 3 years/fine, if intentional- 3 years also if putting in peril objectsof legal protection by

negligence

- International aspects (Bayer LL601)

- ample offenses in German GE law


EU-law/proceedings instituted by states

• potential subject matters

• admissibility

• legal grounds


EU-law/proceedings instituted by citizens

potential subject matters

admissibility

preliminary ruling

legal grounds


Review of the German GE law

German Constitution

EU-law

International covenants

Existing law probably in line

§ 34 a BNatSchG?§ 28 a GenTG?


Infringement of the Seehofer draft

legalisation of contaminations stemming from experimental releases

state funded compensation scheme

Protection of ecologically sensitive areas

0,9 threshold does not secure use of property of GMO-free production


Infringement of the Seehofer draft

Organic farmers not sufficienty protected

good professional practice not sufficientNecessity of two gpp-regimes? (one for

conventional/one for organic farming?)

"Specifying" of joint and several liability

limits in permitting derogations by private parties (Märka Modell)


litigation against experimental releases

- concept of experimental release delimitation of experiments with

GM- products

- Who may litigate? - legal grounds: - environment/health

issues - co-existence - nature protection - simplified

procedures- preclusive effects?


Litigation of environmental NGOs against GMO in general

currently no general litigation possibilities

be it experimental or commercial releases

Aarhus-Convention does NOT cover GMOs

---> the only rewarding approach is using protected areas as legal vehicle


Litigation of NGOs against GMO at areas protected by national

law

Statutary protection status miserablethough by invoking higher ranking

european law and the german constitution, the following seems possible:

dispensation procedure at areas protected

by national law grants right of action

GMOs near areas protected by national law


Litigation of NGOs against GMO at areas protected by european

law

If area is designated, right of action within the dispensation procedureseven if not in but near of the area

If area so far is only listed, some german

state laws prescribe impact assessment

usually no right of action in those cases


Litigation of NGOs against GMO at areas protected by european

law

Notified areas may grant right of action in case of impact assessment by state law

No right of action if involved:- the balance of notified areas- potential EU-protection areas - actual bird protection areas


civil law claims

neighbourhood claimsfarmes/hobby-farmes/bantam campaignsignificant adverse effects

claims against other perpetrators transport/stocking/authorities:relation to plot of land and neighbourhood

law?

claims against supplierswhat if GMO-free is not warranted?interface farmer/consumer below 0,9 %


Neighourhood actions against experimental

releasesadministrative act shaping private

law?- litigation on termination- litigation on protection measures- litigation on liability is there a co-existence caveat?

defense/liability actions cover:- contamination more than 0,1 % - infringements of property/health


Neigbourhood actions against cultivation

switching point: good professional practice

constitutional?

actionable thresholds- without consent: limit of detection- contamination > 0,9 - contamination < 0,9 preliminary ruling?


joint and several liability

- alternative and/or cumulative causation

- what potential to damages necessary?

- precedence of assessment of individual

causation share - transport and supply also

comprised? - costs of analysing - level of compensation - partially own fault of claimant


GMO-free regions (GFR)

- voluntarily- secured by mixture of

sovereign instruments - general opportunities - municipal actions ag.

experimental releases? - limited prohibition of cultivation? - biosphere reserves etc.


GMO-free regions (GFR)

- closed cultivation areas- labelling "without GMO"

- GFR under the open concept of significant adverse effect

- role of constitutional law- demands for EU-framework may

backfire


hazardous incidents (LL601 rice/Bayer)

liability action against Bayer in the US?

liability action against Bayer in Germany?

- court of jurisdiction- choice of law governing the case- establishment of fault/assignment of responsibility- scope of damage- effects of subsequent authorisation


hazardous incidents (LL601 rice/Bayer)

state liability actions against german authorities

state liability actions against EU-Commission

opting up in hazardous incidents


seed thresholds

politically negotiationed < 0, 5 %

Which threshold is legally binding?

current litigation possibilities litigation possibilities in case of

adoption of new thresholds


misleading advertising of food companies

freedom of Information actions

actions according to the EU-environmental liability directive


DISCLAIMER

This presentation of a general overview under no whatsoever circumstance can replace the legal advise and counselling necessary for consideration of the respective case!

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