Dr. Ina Ebert, Munich

Green genetic engineering   A case for insurance (or not)?

The cultivation of genetically modified (GM) products is very common in the United States. In the EU, however, "green genetic engineering" is regarded with more scepticism. One of the reasons for this is the uncertainty as to what liability risks are involved in the cultivation of GM crops and how farmers can protect themselves against these risks.

As links to possible health hazards have yet to be established, current interest focuses on pure financial losses. Farmers whose products contain a certain percentage of genetically modified organisms (GMOs) due to accidental mixing — i.e. cross-pollination — must label them as GM products.

As a consequence, the goods can only be sold at a lower price if at all. Establishing liability in such cases and providing insurance is a problem for four reasons:

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  As a rule, it is impossible to determine whose GM plants are responsible for accidental cross-pollination. So when proof of causality is called for, liability issues frequently remain unresolved.
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  The risk of cross-pollination varies from plant to plant: it is almost inevitable in oilseed rape but certainly avoidable in potatoes and maize. A standard ruling for every type of plant therefore makes little sense. But given the sheer number of different plants, treating them all individually would involve considerable time, effort, and expense.
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  It is debatable whether the cross-pollination risk should only be carried by those who cultivate GM crops without extending the liability to those who benefit from such cultivation (e.g. manufacturers of GM seed).
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  There is hardly any justification in making the cultivation of GM crops subject to much stricter liability than the manufacture of products which are known to be more hazardous. Why should the manufacturers of conventional agricultural products — regardless of any property damage or personal injury — be entitled to pass on their turnover risk to a third party whose product (GM plants) does not have any defects?

Legal situation in the EU

The EU regulations on liability in connection with the cultivation of GM plants are not very specific. The directive on "the deliberate release into the environment of genetically modified organisms" (2001/18/EC) on the one hand merely requires member states to ensure that "potential adverse effects on human health and the environment [...] are accurately assessed" but on the other hand says that national laws may not "prohibit, restrict or impede" the placing on the market of GM products which comply with the requirements of this directive.

The guidelines on the "coexistence of genetically modified crops with conventional and organic farming" (2003/556/EC) also only emphasise the necessity to ensure that consumers and manufacturers have freedom of choice with regard to the various cultivation methods.

Member states are advised "to examine their civil liability laws to find out whether the existing national laws offer sufficient [...] possibilities in this regard". National laws should ensure that GM products are labelled, their cultivation monitored, and liability rules established for cases of cross-pollination, so that the various methods of cultivation can coexist in the agricultural sector. All endeavours to further standardise the legal position in the EU have been unsuccessful so far.