Monday, November 28, 2005

European national laws for coexistence of crops – implications for Australia

Roger Kalla, Director Korn Technologies

1 Preamble:

EU lifted is ‘de facto’ moratorium on the authorisation of genetically modified (GM) crops for importation and cultivation in 2004 at the same time as Australian State Governments introduced moratoria on the cultivation and marketing of genetically modified (GM) canola. In the following I have compared different European national regulatory regimes aiming at achieving crop coexistence. They follow on from the adopted EU wide labelling standard for GM crops and foods. The alternative legislatory approaches taken by individual European member states to achieve coexistence, and the analysis of the underlying political aims of these enacted or drafted regulations, will serve to enlighten the Australian political debate on what important EU markets accept as thresholds for accidental presence of authorized GM crops in non-GM crops. Moreover they address the important issue of who should be held liable for any economic damage resulting from the accidental presence of authorized GM crops in conventionally grown crops.

2 Introduction

The EU is an opportunistic market for Australian canola. A number of individual EU member states prefer to import produce free of GM traits or in the years EU doesn’t produce enough canola for its internal market according to recent advice received from grain marketers and summarised in a Victorian State Government report 1.

To safeguard the coexistence and freedom of movement EU wide of authorised GM crops and the rights of farmers that choose to continue to produce non-GM crops several new regulations and directives and amendments to earlier Directives such as Regulation (EC) No 1829/2003 on GM food and feed, Regulation (EC) No 1830/2003 concerning traceability and labelling of GM food and feed products derived from GMOs, and the amendment to Directive 2001/18/EC were adopted in 2003 and 2004. These regulations have implications for any country that wishes to export their produce into the EU2.

3 Different European coexistence models explained

3.1 GM regulation gain in Spain

Spain has been growing in the order of 25,000 -50,000 hectares of insect resistant GM maize annually since 1998 and the Spanish farmers has found a ready internal market for their GM produce within the animal feed industry3. It was only in July 2005 the Spanish government announced a new framework that aims to regulate the coexistence of genetically modified, conventional and organic crops. According to the proposed legislation the Spanish GM farmer needs to notify the local authorities one month in advance of planting what allowed variety he wishes to plant and what the introduced gene is in the culture of interest.

The farmer must adhere to specific rules for the preparation of the seed, the surveillance of fields, and the cultivation of the harvest in addition to any existing contractual obligations between the farmer and the GM seed provider. A crop exclusion zone of 50 meters has to be kept between the fields of GM crops and other crops. The anticipated period of flowering of the GM crops has to be declared in order to facilitate the prevention of accidental cross-pollination with conventional crops during flowering. In addition, a buffer area of four rows of conventional maize to act as a GM pollen trap, which is to be handled as GM, has to surround the GM field.

In addition the farmers must participate in education programs concerning GM crop cultivation. If a non-GM variety is deemed to be a source of GM seed at trace levels it could be cancelled from the national register of varieties that are traded and cultivated.

France is allowing 500 hectares of insect resistant GM maize to be grown this year for commercial use despite the resistance of the very vocal French anti-GM lobby enamoured with direct action as a method of choice in getting their message across 5.

3.2 The Danish Act on coexistence - based on science and applied to local crops

“Solutions on coexistence are in demand. But so is knowledge and science. In order to reach viable solutions we need to make facts and knowledge - not sentiment or affection - the basis for political decision making.”

Mariann Fischer-Boel, Danish Minister of Food, Agriculture & Fisheries, November 20036

Denmark was the first European country to enact new coexistence laws after the lifting of the moratorium. The Minister for Food, Agriculture and Fisheries, Mariann Fischer-Boel, the present European Commissioner for Agriculture, successfully steered the new law on coexistence through the Danish Parliament in May 2004. The Danish coexistence laws have the dual aim to protect the non-GM farmers while allowing for continued development and breeding of Danish superior GM sugar beets and cultivation of two other crops7.

The Danish laws were based on a three years of intense and rigorous economic, legal and scientific study and evaluation of the preparedness of the Danish farmers and seed industry for an introduction of GM crops. This resulted in a comprehensive report to the Government including key recommendations 7.

3.2.1 The Danish Act – trusting the seed industry

An important conclusion from the studies performed was that the Danish seed industry was able to segregate different types of seeds of maize, potato, and sugar beet down to a tolerance level of 0.1 %. From this followed that the 0.9% threshold level of GM in the end product that reaches the consumer could be upheld through the use of simple and cost effective on farm measures such as appropriate separation distances based on the observed pollen spread of the GM crops under consideration.

3.2.2 The Danish Act – informed choice

The Danish GM farmer needs to notify neighbours of their intention to grow an authorised GM crop. This information is put on a public register. The GM farmer is also required to take an obligatory course for GM growers which will give them a ‘GMO licence’ required by law before any GM crop is cultivated. The cultivation of some GM crops (including rape seed, grasses and clover) where the seed industry could foresee technical problems in upholding the 0.1 % level of tolerance in segregation are temporarily blocked in Denmark.

3.2.3 The Danish Act – no fault compensation fund to protect non-GM farmers

Economic loss that occur as result of spread of GM crops to conventional and organic crops will be addressed through the establishment of a compensation fund based on a fee of 100 Danish krone ( AUD 21.5) per hectare to be imposed on GM growers. Compensation is only paid out in case of documented economic loss and under very specific conditions. Only the part of the non-GM crop grown in the centre of the paddock can be included in any claim. Areas of the paddock bordering other fields sown to other crops or roads are excluded. The testing for unintentional presence of GM crops can only be performed by the Danish Plant Directorate laboratory and is to be paid upfront by the claimant. The cost for the testing will be refunded if the testing reveals the presence of GM crop and it is above the threshold. The claim is time limited to one year after the harvest.

3.3 The German gene technology prevention law – caught in the act

“It is quite clear that our farmers desire agriculture free from GMOs.”

Renate Künast, German Federal Minister for Consumer protection, Food & Agriculture, May 2004.

The contentious German Act drafted under instruction from Renate Künast, the former Minister for Consumer Protection, Food and Agriculture, the present co-leader of the Green opposition party, was opposed by the Bundesrat (Upper House) when it was first debated in 2004 and was fiercely criticized by all major German research organizations which labeled it a ‘gene technology prevention law’8. The law was finally passed by the Bundestag (Lower House) in late 2004 bypassing legislatory scrutiny by the Upper House due to a technicality.

3.3.1 The German Act – in breach of the EU principle of proportionality

The German Act has been seen by some law experts to breach EC standards on proper authorization of marketing of GM crops and the free movement of authorized products.

In particular under Article 26a of Directive 2001/18/EC on the deliberate release of genetically modified organisms into the environment, Member States are entitled to take ‘appropriate measures’ to avoid the unintended presence of genetically modified organisms in other products.

However the same article specifically invokes the principle of proportionality, a fundamental principle of EU law. According to this principle, members of the EU may only act to exactly the extent that is needed to achieve its objectives, and no further. This principle applies to any nationally legislated restrictions of the free movement of goods (including GMOs). Any such restrictive regulation must avoid excessive interference with free use of authorized GMOs for its intended purpose.

Moreover EU legislation is very clear on the point that national prevention measures for avoidance, like the ones adopted in Germany for the protection of organic farmers, are only appropriate and proportional if they aim at a tolerance or threshold level that lies within the threshold established by the relevant EU regulation for labeling of GM products and crops. This level is set at 0.9% for authorized GM crops.

3.3.2The German Act - its asymmetric approach to coexistence

The aim of the German Act is to favour certain agricultural production and production methods over others by varying the threshold levels that apply for GM crops and linking this variable regime with strict civil liability provisions. Minister Künast made this clear while the bill was being debated. Not surprisingly, the German Act has been considered by one authoritative source as being “ inspired by a bias for certain forms of agricultural production” and “ imposing strict conditions on the cultivation of GM crops in order to give expression to underlying political aim of qualifying genetically modified crops as an undesirable use of authorized GM crops”9.

"I have no problem with liability, if you do something wrong, you should pay for it. But with this law, you have liability without blame. This is an absolutely impossible situation."

Mark Stitt, Managing Director at the Max Planck Institute of Molecular Plant Physiology 9

The political aim underpinning the drafting of the German Act is most clearly enunciated in the draconian civil liability provisions. For example, a German non-GM farmer that has signed a contract to deliver a product that contains less than 0.9% GM can according to the German Act hold neighboring GM farmers jointly liable for damages caused by accidental presence of authorized GM crop at trace levels down to 0.1% in his crop. Liability for accidental presence of authorized GM crops has thus been extended to voluntary assumed contractual obligations. The GM farmer is still held liable even if he followed all safety precautions and on farm segregation protocols to the best of his ability.

The contractual obligation of the non-GM farmer to grow a crop with lower tolerance than 0.9% does not have to be disclosed to neighboring farmers while the GM farmers will have to notify the authorities of his intentions to grow a GM crop. Moreover the location of the GM crops is required by law to be put on a publicly available register.

3.3.3 The German Act - introducing an incalculable and unpredictable liability regime

However the new provisions for liability for perceived loss due to presence of trace levels of authorized and safety evaluated GM crops are even more wide ranging. An organic farmer can hold neighboring GM farmers jointly liable for loss of “ethical” values as well as loss of future market opportunities or change in market perception.

Liabilities can thus arguably be attributed to anything that runs contrary to the subjective views on the perceived dangers with GM crops held by non-GM farmers and GM sensitive market segments.

These liabilities have been labeled “incalculable and unpredictable” by authoritative legal sources. Due to the inherent uncertainties of the practical application of such an ephemeral liability regime other jurisdictions, e.g. US and Canada, have deliberately stayed away from imposing GM crop liabilities except for physical harm causing significant economic damages, the same as for adventitious presence from any agricultural crop. The US and Canada do not allow pure economic loss claims with respect to GM crops10. Predictably, the German Act is being opposed by individual German States as well as other EU member states with a different view on how to achieve coexistence which balances the interests and rights of both GM and non-GM farmers.

4 Conclusion

The immediate result of the new EC directives and regulations and amendments to Directives on the labeling and cultivation of GM crops that came into place in 2003 – 2004 have been to end the ‘de facto’ moratoria on importation and authorization of new GM crops into one of Australia’s trading partners. It has done so through the enforcement of a 0.9% threshold level of adventitious or technically unavoidable presence of authorized GM crop. The EU specifically did so because in the production of food, feed and seed, it is practically impossible to achieve products that are 100% pure. The implementation of these directives has given European national governments some reference points for enacting their own legislation to ensure coexistence and freedom of movement of authorized products including GM crops or foods derived from GM crops across EU.

However in enacting their own legislation the individual EU member state has to take into account the principle of proportionality which prevents individual countries to overreach and put in place regulations that act counter to the freedom of movement of authorized goods in the whole of EU. Germany, on one hand, and Denmark on the other, have taken very different approaches to their coexistence legislation. While the previous German government arguably over stepped the mark, as articulated in the EU directives, driven by political motivation to favour one farming system over another, the Danish Government have taken in consideration both the interests of GM farmers and non-GM farmers and taken a evidence based approach to coexistence policy making. The new German coalition Government (minus the Green party influence) has made statements that it intends to repeal its’ coexistence legislation .


I thank Professor Drew Kershen, Oklahoma University for sharing his deep insights in comparative and international liability regimes with me.

Information sources quoted:








8) The coexistence of GM crops with other forms of farming. Herdegen, M. ( 2005) Journal of Int Biotechnology Law, Vol 02, pp 89-98.


10) Personal communication , Professor Drew Kershen, Oklahoma University , Law Faculty

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