Legal opinion: National GMO coexistence rules continue to apply

Nation­al GMO coex­is­tence rules still apply to all genet­i­cal­ly mod­i­fied (GM) plants, includ­ing those dereg­u­lat­ed under new EU laws, a new legal opin­ion shows. This is because the EU has nev­er exhaus­tive­ly reg­u­lat­ed these areas, also not in its lat­est Reg­u­la­tion (EU) 2006/1388 on plants derived from “new genom­ic tech­niques” (NGT). The Ger­man fed­er­al min­istry of agri­cul­ture dis­putes this find­ing, say­ing EU reg­u­la­tions leave no room for nation­al rules in this domain.

The legal opin­ion by Dr Georg Buch­holz of GGSC (in Ger­man) argues that the EU’s new law gov­ern­ing NGT plants only removes EU-lev­el autho­ri­sa­tion and labelling require­ments for NGT plants – but not Ger­many’s nation­al coex­is­tence rules, lia­bil­i­ty pro­vi­sions, or site-reg­is­tra­tion sys­tem. Com­pe­tence over GMO coex­is­tence rules lay, and still lies, with the EU Mem­ber States. The opin­ion was com­mis­sioned by the Ger­man Asso­ci­a­tion Food with­out Genet­ic Engi­neer­ing (VLOG).

What are GMO coexistence rules?

GMO coex­is­tence rules are mea­sures that pro­tect those who farm GMO-free, as well as nature reserves, from GMO con­t­a­m­i­na­tion. In Ger­many, this includes an oblig­a­tion to noti­fy neigh­bours, to main­tain min­i­mum dis­tances between fields, a pub­lic reg­is­ter of GMO plant­i­ng sites, and lia­bil­i­ty if con­t­a­m­i­na­tion hap­pens. Fur­ther rules apply at a region­al lev­el. In Bavaria and Hesse, for exam­ple, the cul­ti­va­tion of GM plants is pro­hib­it­ed through­out their entire ter­ri­to­ries.

Such rules are set at nation­al lev­el, accord­ing to the EU’s GMO regime that express­ly allows Mem­ber States to take mea­sures to pre­vent the unin­tend­ed pres­ence of GMOs in oth­er prod­ucts. The Euro­pean Com­mis­sion mere­ly col­lects rel­e­vant infor­ma­tion and devel­ops guide­lines on the coex­is­tence of genet­i­cal­ly mod­i­fied, con­ven­tion­al and organ­ic crops. Accord­ing to the lat­est guide­lines issued in 2010, mat­ters relat­ing to finan­cial com­pen­sa­tion or lia­bil­i­ty for eco­nom­ic dam­age fall with­in the exclu­sive com­pe­tence of the Mem­ber States.

Why would national rules not apply?

The EU has just passed a new reg­u­la­tion, pub­lished as Reg­u­la­tion (EU) 2006/1388, that excludes GM plants with no more than 20 genet­ic changes “per mono­ploid genome” from EU require­ments such as risk assess­ment, sup­ply chain trace­abil­i­ty and con­sumer labelling. These GM plants fall under a new cat­e­go­ry of plants termed “NGT Cat­e­go­ry 1” or NGT1. Accord­ing to the Euro­pean Com­mis­sion, the mod­i­fi­ca­tions intro­duced in these plants “could also occur nat­u­ral­ly or be obtained by con­ven­tion­al breed­ing”. The new rules will apply from 17 July 2028.

In response to the new legal opin­ion, Ger­many’s fed­er­al min­istry of agri­cul­ture has said the new EU reg­u­la­tion leaves no room for nation­al rules on GMO coex­is­tence or lia­bil­i­ty. The min­istry claims the Euro­pean Com­mis­sion is of the same view. A spokesper­son told Tagesspiegel Back­ground: “Accord­ing to the legal view of the Fed­er­al Min­istry of Agri­cul­ture, Food and Region­al Iden­ti­ty and of the Euro­pean Com­mis­sion, there is no scope for nation­al coex­is­tence mea­sures with regard to cat­e­go­ry 1 NGT plants.”

New EU NGT law does not preclude national measures

The legal opin­ion states, how­ev­er, that nation­al pro­tec­tive mea­sures relat­ing to the cul­ti­va­tion of GM crops con­tin­ue to apply to NGT1 plants as well, even after the EU’s new reg­u­la­tions take effect.

Accord­ing to expert lawyer Dr Georg Buch­holz, the new EU NGT reg­u­la­tion does not affect these rules, nei­ther exclud­ing nor pro­hibit­ing them in any way. He argues that the reg­u­la­tion express­ly lifts the appli­ca­tion of EU-lev­el GMO rules to NGT1 plants and their prod­ucts – but does not pre­clude the appli­ca­tion of nation­al-lev­el GMO rules such as GMO coex­is­tence rules or nature con­ser­va­tion laws.

Support in principle from Minister Rainer

In May, Agri­cul­ture min­is­ter Alois Rain­er had reas­sured the sec­tor that GMO-free pro­duc­tion will remain pos­si­ble even after the EU’s new NGT law enters into force. He told the Non-GMO Sum­mit in Frank­furt: “I am con­vinced that we can enable inno­va­tion with­out com­pro­mis­ing the high labelling and trace­abil­i­ty stan­dards for non-GMO prod­ucts.”

Alexan­der Hisst­ing, direc­tor at the Ger­man Asso­ci­a­tion Food with­out Genet­ic Engi­neer­ing (VLOG), believes how­ev­er that Germany’s non-GMO stan­dards “depend on the exist­ing pro­tec­tion rules remain­ing in place”. He called on the fed­er­al min­istry of agri­cul­ture to ensure that nation­al coex­is­tence rules are applied to all GMOs, includ­ing NGT1 plants.

National protections more important than ever

For farms pro­duc­ing GMO-free dairy, eggs, or meat, nation­al coex­is­tence rules are of crit­i­cal impor­tance: with­out the oblig­a­tion to pass on reli­able infor­ma­tion along the sup­ply chain, they may no longer be able to know whether the feed they use con­tains NGT1 crops. Exist­ing pro­tec­tions should there­fore con­tin­ue to be applied.

“The new EU law was always designed to under­mine food trans­paren­cy and make GMOs invis­i­ble in order to cir­cum­vent pub­lic oppo­si­tion. But the explic­it recog­ni­tion that all GMOs remain banned in organ­ic pro­duc­tion means that these plants – even if hid­den from con­sumers – must remain vis­i­ble in the field. Ensur­ing this is the respon­si­bil­i­ty of nation­al and region­al gov­ern­ments, and they can­not evade that respon­si­bil­i­ty,” said Franziska Achter­berg, Head of Pol­i­cy at Save Our Seeds.

Save Our Seeds calls on all EU gov­ern­ments to enforce and strength­en their nation­al GMO coex­is­tence rules to pro­tect GMO-free pro­duc­ers and nature pro­tect­ed areas against any GMO con­t­a­m­i­na­tion, includ­ing con­t­a­m­i­na­tion with NGT1 plants.