Headnotes

to the judgment of the First Senate of 24 November 2010

- 1 BvF 2/05 -

 
1. Article 74.1 no. 26 second alternative GG gives the federal legislature comprehensive competence to make law on genetic engineering, which includes human genetic engineering and animal and plant genetic engineering.
 
2. In view of the fact that the state of scientific knowledge is as yet not finally confirmed in the assessment of the long-term consequences of the use of genetic engineering, the legislature has a particular duty of care, under which it must adhere to its mandate in Article 20a GG to protect natural resources, inter alia out of responsibility for future generations.
 
3. The creation of transparency with regard to the deliberate introduction of genetically modified organisms into the environment (§ 16a GenTG) makes a contribution to the process of public opinion-forming and constitutes an independent and legitimate purpose of legislation.
 
4. The supplementation and concretisation of private law relating to neighbours in § 36a GenTG achieves an appropriate and well-balanced adjustment of the conflicting interests by contributing to an amicable coexistence of methods of production that are conventional or organic or which use genetic engineering.

IN THE NAME OF THE PEOPLE

In the proceedings
for constitutional review

of § 3 nos. 3 and 6, § 16a.1, 16a.3, 16a.4 and 16a.5, § 16b.1 to 16b.4 and § 36a of the Act on the Regulation of Genetic Engineering (Gesetz zur Regelung der Gentechnik, Gentechnikgesetz — Genetic Engineering Act — GenTG) as most recently amended by Article 1 of the Act to Amend the Genetic Engineering Act, to Amend the Genetic Engineering Implementation Act and to Amend the Novel Foods and Novel Food Ingredients Ordinance (Gesetz zur Änderung des Gentechnikgesetzes, zur Änderung des EG-Gentechnik-Durchführungsgesetzes und zur Änderung der Lebensmittel- und Lebensmittelzutatenverordnung) of 1 April 2008 (Federal Law Gazette (Bundesgesetzblatt I — BGBl p. 499))

the Federal Constitutional Court - First Senate - with the participation of

Justices Kirchhof (Vice-President),
Hohmann-Dennhardt,
Bryde,
Gaier,
Eichberger,
Schluckebier,
Masing, and
Paulus

delivered the following

Judgment

based on the oral hearing of 23 June 2010:

§ 3 nos. 3 and 6, § 16a.1 to 16a.5, § 16b.1 to 16b.4 and § 36a of the Act on the Regulation of Genetic Engineering as most recently amended by Article 1 of the Act to Amend the Genetic Engineering Act, to Amend the Genetic Engineering Implementation Act and to Amend the Novel Foods and Novel Food Ingredients Ordinance of 1 April 2008 (BGBl p. 499)) are compatible with the Basic Law (Grundgesetz — GG).

G r o u n d s :

A.

The application for judicial review concerns the compatibility of provisions of the Act on the Regulation of Genetic Engineering (Gesetz zur Regelung der Gentechnik, Gentechnikgesetz — Genetic Engineering Act — GenTG —in the version promulgated on 16 December 1993, BGBl I p. 2066; most recently amended by Article 12 of the Act on the Reform of the Law of the Protection of Nature and Landscape Conservation (Gesetz zur Neuregelung des Rechts des Naturschutzes und der Landschaftspflege) of 29 July 2009, BGBl I p.2542) with the Basic Law. The challenge concerns provisions on the definitions of “genetically modified organism” and “placing on the market” (§ 3 nos. 3 and 6 GenTG), on the location register (§ 16a.1, 16a.3, 16a.4, 16a.5 and § 16b.1a GenTG), on the treatment of products placed on the market (§ 16b.1, 16b.2, 16b.3 and 16b.4 GenTG) and on claims in the case of interference with use (§ 36a GenTG) which are based on the Act on the Reform of the Law of Genetic Engineering (Gesetz zur Neuordnung des Gentechnikrechts (hereinafter: Genetic Engineering Reform Act 2004 (Gentechnikneuordnungsgesetz 2004 — GenTNeuOG 2004) of 21 December 2004 (BGBl I 2005 p.186) and the Act to Amend the Genetic Engineering Act, to Amend the Genetic Engineering Implementation Act and to Amend the Novel Foods and Novel Food Ingredients Ordinance (hereinafter: Genetic Engineering Amendment Act 2008 (Gentechnikänderungsgesetz 2008 - GenTÄndG 2008) of 1 April 2008 (BGBl I p. 499).

I.

1. The deliberate formation of new combinations of the genetic material of living organisms by technological means (genetic engineering; see Bundestag printed paper — BTDrucks 11/5622, p.19) creates the opportunity to make planned alterations to genetic makeup in order to create organisms with desired characteristics which could not be created using conventional breeding and cultivation methods. As defined by the Genetic Engineering Act, therefore, a genetically modified organism (GMO) is an organism, with the exception of human beings, whose genetic material has been altered in a way that does not occur naturally by crossbreeding or natural recombination (§ 3 no. 3 GenTG).

The application for judicial review primarily relates to the use of genetic engineering for crops and for commercial purposes, for example in agriculture and seed production, and also for research purposes. This procedure, colloquially referred to in German as "green" genetic engineering, is intended to achieve agronomically desirable results such as increases in productivity or reductions of environmental damage. For example, it is intended to improve the nutritional quality of plants and give them a better flavour, to enable them to be stored longer, to supply raw materials or to produce medicinal products. The risks and opportunities of this use of genetic engineering are disputed and have not been finally established. Transferring genetic material across species boundaries may on the one hand deliberately influence desirable characteristics, but on the other hand there is a risk of undesired side effects. If GMOs are released into the environment for experimental purposes or in the form of commercial products, they may propagate themselves and spread there. These effects may be irreversible.

Against this background, extensive legislation serves to control the risks associated with the deliberate introduction into the environment of GMOs, in order to protect human health and the environment, and both to create a foundation for the use of the new technology and also to protect the interests of agriculture free of genetic engineering. Essential legal requirements of the legislature of the European Union are laid down in Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of GMOs and repealing Council Directive 90/220/EEC (OJ L106, p.1; hereinafter Directive 2001/18/EC) and in Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed (OJ L 268, p.1; hereinafter Regulation (EC) 1829/2003).

Federal German law on releasing GMOs into the environment is contained primarily in the Genetic Engineering Act, which came into force in 1990 and has since been amended several times and its provisions on the release of such organisms and the placing on the market of products which contain or consist of GMOs.

2. (…)

The main emphasis of the Genetic Engineering Reform Act 2004 was implementing Directive 2001/18/EC and guaranteeing the coexistence of different types of agricultural crops.

a) In altering the definitions of "GMO" and "placing on the market" (§ 3 nos. 3 and 6 GenTG, Article 1 nos. 4.b and 4.c GenTNeuOG 2004), the legislature intended, on the basis of Article 2 nos. 2 and 4 of Directive 2001/18/EC, to indicate that in particular the products of cross-pollination are also GMOs within the meaning of § 3 no. 3 GenTG (BTDrucks 15/3344, p. 39) and, even if they result from an authorised release, fall under the definition of placing on the market within the meaning of § 3 no. 6 GenTG and thus in the area of application of the Genetic Engineering Act (§ 2.1 no. 4 GenTG) and of its provisions on placing on the market (BTDrucks 15/3088, pp. 22 and 56). The background was the question, which was controversial before the Genetic Engineering Reform Act 2004 came into force, as to whether products from conventional production which as a result of an unintentional introduction of GMOs have characteristics arising from genetic alterations, require authorisation under genetic engineering law if they are to be placed on the market.

b) On the basis of Article 26a of Directive 2001/18/EC, inserted by Article 43 of Regulation (EC) 1829/2003, several instruments were to prevent the unintended presence of GMOs in other products and guarantee the coexistence of different types of agricultural crops. Together with this went the desire to ensure that producers and consumers had freedom of choice and, beyond the discussion of risks, to achieve social peace (BTDrucks 15/3088, pp. 19 and 21). The legislature assumed that cultivating a genetically modified crop on a large area, or release on a smaller scale, might result in cross-pollination on neighbouring land and thus affect economic operators who wish to do without the use of genetic engineering or who are obliged to do without it under the current provisions on organic agriculture and the labelling of organically produced products. In order to take account of these developments in agriculture and the food industry, the guarantee of coexistence was made a statutory purpose (§ 1 no. 2 GenTG). The purpose of the Genetic Engineering Act, under § 1 GenTG, is now

1. taking into account ethical values, to protect the life and health of human beings, the environment in its interactive structure, animals, plants and material goods from harmful effects of genetic engineering operations and products and to take precautions against the emergence of such risks,

2. to ensure that it is possible for products, in particular food and feed, to be produced and placed on the market conventionally, organically or with the use of GMOs,

3. to create the legal framework for research into and development, use and promotion of the scientific, technological and economic possibilities of genetic engineering.

The aim of guaranteeing coexistence was defined in greater detail in the challenged provisions on the location register, on the treatment of products placed on the market and on claims in the case of interference with use.

aa) In order to implement European Union law requirements under Article 31.3 of Directive 2001/18/EC and as a contribution to ensuring coexistence, a location register was established (§ 16a GenTG, Article 1 no. 14 GenTNeuOG 2004). Under § 16a.1 sentences 1 and 2 GenTG, the location register kept by the Federal Office of Consumer Protection and Food Safety (Bundesamt für Verbraucherschutz und Lebensmittelsicherheit) as the competent superior federal authority (see § 31 sentence 2 GenTG) records the information notified on the release and cultivation of GMOs for the whole territory of the Federal Republic of Germany for the purpose of monitoring any effects of GMOs on the legal interests and concerns named in § 1 nos. 1 and 2 GenTG and for the purpose of informing the public. If an authorised release is to take place, the operator (see § 3 no. 7 GenTG) must, at the latest three working days before the release is made, give notification of the release, the designation of the GMO, its genetically modified characteristics, the release land and the size of the release area, and the period of release, to the Federal Office of Consumer Protection and Food Safety (§ 16a.2 sentences 1 and 2 GenTG). If an approved genetically modified plant is to be cultivated, the farmer (see § 3 no. 13a GenTG) must give notification to the Federal Office of this intention at the latest three months before the sowing and state the designation and the unique identifier of the GMO, its genetically modified characteristics, the name and address of the person who farms the area, the cultivation land and the size of the cultivated area (§ 16a.3 sentences 1 and 2 GenTG). Changes in the information and the termination of the intention to release must be notified without delay (§ 16a.2 sentence 3 and 16a.3 sentence 3 GenTG). Parts of the location register are accessible to the public. Information on the designation and - in the case of cultivation - on the unique identifier of the GMO, its genetically modified characteristics and the release or cultivation land, and the size of the area, may be automatically retrieved on the internet (§ 16a.4 GenTG). The remaining information, which is not publicly accessible, is normally supplied provided the applicant gives prima facie evidence of a justified interest and there is no reason to assume that the person affected has an interest warranting protection in the refusal of information which carries more weight (§ 16a.5 GenTG). Measures complying with the current state of the art must be taken to guarantee data privacy and data protection (§ 16a.6 sentence 1 GenTG). The data in the federal register are deleted on the expiry of fifteen years after they are first stored (§ 16a.6 sentence 2 GenTG).

bb) As a further contribution to guaranteeing coexistence, a precautionary duty and requirements of good professional practice in dealing with GMOs were introduced (§ 16b GenTG, Article 1 no. 14 GenTNeuOG 2004), which are intended to avoid introductions of these organisms or reduce them to a minimum. § 16b.1 sentence 1 GenTG imposes a duty to take precautions against substantial interference with the legal interests and concerns named in § 1 nos. 1 and 2 GenTG on a person who deals in a way defined in more detail with products authorised to be placed on the market which contain or consist of GMOs or who places these on the market for profit, for commercial purposes or in a comparable manner. Compliance with the precautionary duty under § 16b.1 sentence 1 GenTG is defined in more detail in relation to the areas of the treatment of genetically modified plants and the keeping of genetically modified animals in provisions on good professional practice in § 16b.2 and 16b.3 GenTG. Under § 16b.1 sentence 2 GenTG in the version in force until 4 April 2008 (hereinafter: § 16b.1 sentence 2 GenTG old), acts were expressly impermissible where, in the circumstances of the individual case, it was not guaranteed that the concerns set out in § 1 no. 2 GenTG would be satisfied. Supplementing the duties of conduct in § 16b.1 to 16b.3, § 16b.4 GenTG contains a provision on the suitability to satisfy the precautionary duty of the person and the equipment of the person who handles the products for profit or for commercial or comparable purposes. § 16b.5 GenTG, which is not challenged in these proceedings, imposes on the person who places the products on the market a duty to supply accompanying product information, which must contain the provisions on authorisation and also information that the duties under § 16b.1 to 16b.3 have been complied with. § 16b.6 GenTG, which is also not objected to, authorises the Federal Government to make more detailed provisions on individual aspects of § 16b.3, 16b.4 and 16b.5 GenTG by delegated legislation. § 16a and § 16b GenTG also apply if the placing on the market is governed by legal provisions which have priority over the provisions of the Genetic Engineering Act on release and placing on the market (see § 14.2 GenTG).

cc) Finally, private law relating to neighbours was put into concrete terms and supplemented by legislation on claims for interference with use, in order to ensure that in the case of material interference with use by the introduction of GMOs there is a civil defensive claim and claim for compensation (§ 36a GenTG, Article 1 no. 24 GenTNeuOG 2004).

(1) In private law relating to neighbours, § 1004.1 of the German Civil Code (Bürgerliches Gesetzbuch — BGB, in the version promulgated on 2 January 2002, BGBl I pp. 42 and 2909, BGBl I 2003, p. 738), the owner may require the originator of the nuisance to remove or cease the interference if there is interference with the property in another way than removal or withholding of possession or if a future interference is to be feared. Under § 1004.2 BGB in conjunction with § 906.1 sentence 1 BGB, however, the owner is obliged to tolerate the interference and the owner's defensive claim is excluded if the use of the owner's land is not impaired, or is only insignificantly impaired, by the introduction of gases, vapours, smells, smoke, soot, warmth, noise, vibrations and similar invasive impacts. Under § 906.2 sentence 1 BGB, the owner must even tolerate a material interference where this arises from a use of the other land which is customary in the location and cannot be prevented by measures which are financially reasonable for users of this kind. In this case, the owner may require from the user of the other land reasonable monetary compensation if the effects interfere with a use of the owner's land which is customary in the location or with its yield to an unacceptable degree. By analogy to § 906.2 sentence 2 BGB, the Federal Court of Justice (Bundesgerichtshof) has consistently held that there is a general claim to compensation under the law relating to neighbours if, under private-sector use, unlawful impacts from a plot of land affect another plot of land and the owner or the person in possession of the latter plot is not obliged to tolerate these, but for specific reasons cannot prevent them under § 1004.1, § 862.1 BGB, insofar as the owner or possessor suffers disadvantages from this which exceed the acceptable degree of interference that can be accepted without compensation (Decisions of the Federal Court of Justice in Civil Matters (Entscheidungen des Bundesgerichtshofes in Zivilsachen — BGHZ 155, 99 <102-103.> with further references). According to the case-law of the Federal Court of Justice, the provision of § 906 BGB applies to public law relating to neighbours, defining here too more precisely the standard of what an owner or possessor of land must accept without indemnification and compensation in the case of air pollution and noise by act of state (BGHZ 91, 20 <21-22>; 97, 97 <104>). Before the introduction of § 36a GenTG, it was disputed whether and how far, by this standard, introductions of GMOs in neighbouring areas can be defined as "similar influences" within the meaning of § 906.1 sentence 1 BGB and thus create defensive claims and claims for compensation.

(2) § 36a GenTG now establishes that the defensive claims and claims for toleration and compensation laid down in §§ 1004, 906 BGB apply both to the transfer of the characteristics of an organism based on genetic engineering operations and to other introductions of GMOs (§ 36a.1 GenTG).

(a) In § 36a.1 to 36a.3 GenTG, the area of application of § 906 BGB with regard to the legal terms used there without precise definition of "material interference" by the use of another plot of land (§ 36a.1 GenTG), the measures to prevent interference which are "financially reasonable" for the user of a plot of land (§ 36a.2 GenTG) and the use of a plot of land which is "customary in the location" (§ 36a.3 GenTG) is defined in more detail.

Introductions of GMOs constitute a material interference within the meaning of § 906 BGB in particular if the products of the person entitled to use who is affected may consequently no longer be placed on the market (§ 36a.1 no. 1 GenTG) or their intended marketing is possible only with restrictions or is excluded by reason of the applicable provisions on the labelling of products (§ 36a.1 nos. 2 and 3 GenTG). Where there are threshold values in the individual groups of cases, for example for the labelling of genetically modified food products, these are to be the applicable point of reference for the question as to whether interference is material (BTDrucks 15/3088, p. 31). The cases listed in § 36a.1 GenTG are not exhaustive; cases which are comparable as regards their evaluation are to be included under the provision with the necessary modifications (BTDrucks 15/3344, p. 41). If there is no case under § 36a.1 nos. 1 to 3 GenTG and also no comparable interference, the introduction of GMOs on neighbouring areas is insignificant and may, under § 906.1 sentence 1 BGB, not be forbidden.

§ 36a.2 GenTG is tied to § 906.2 sentence 1 BGB, which provides that even a material interference must be tolerated where this arises from a use of the other land which is customary in the location and cannot be prevented by measures which are financially reasonable for users of this kind. § 36a.2 GenTG provides that observing good professional practice under § 16b.2 and 16b.3 GenTG may be regarded as financially reasonable in this sense.

§ 36a.3 GenTG modifies the criterion of what is customary in the location within the meaning of § 906 BGB to the effect that it is not relevant to the assessment of this whether the products are obtained with or without GMOs.

(b) § 36a.4 GenTG supplements private law relating to neighbours by the addition of a provision to overcome difficulties in proving causality. § 36a.4 sentence 1 GenTG contains a presumption as to cause modelled on § 830.1 sentence 2 BGB, which introduces joint and several liability of more than one possible persons responsible under § 840.1 BGB. § 36a.4 sentence 2 GenTG prescribes the order of priority of proportionate liability where it is established that each of several neighbours is only proportionately liable for causation and the compensation can be allocated under § 287 of the Code of Civil Procedure (Zivilprozessordnung — ZPO).

3. (…)

The purpose of the most recent amendment of genetic engineering law [by the Genetic Engineering Amendment Act 2008] was to promote research into and use of genetic engineering in Germany. But in this connection, the protection of human beings and the environment were to remain the highest aim of genetic engineering law, pursuant to the precautionary principle, and the freedom of choice of farmers and consumers and the coexistence of the different types of agricultural crops were to continue to be guaranteed. Against this background, operations for work in genetic engineering facilities were simplified and statutory exemptions for particular GMOs were extended. Subject to certain conditions, permission was given for the exploitation of products containing proportions of organisms not authorised to be placed on the market.

§ 16b.1 sentence 2 GenTG old was deleted without replacement, and instead § 16b.1 sentences 2 to 4 GenTG contained an exemption from the precautionary duty (with regard to § 16b.1 sentence 2 GenTG, below, the old and new versions are distinguished from each other). It is now not necessary to comply with the duty to take precautions with regard to the concerns relating to another person set out in § 1 no. 2 GenTG insofar as the latter waives protection by agreement in writing or, in response to an enquiry by the person with the precautionary duty, does not provide the information necessary for this protection within one month, and in the given individual case the duty exclusively serves to protect the other person (§ 16b.1 sentence 2 GenTG new). A permissible deviation from good professional practice must be notified to the competent authority under § 16b.1 sentence 4 GenTG in good time before sowing or planting, and in compliance with the newly introduced § 16b.1a GenTG notified to the location register (§ 16a GenTG). In this connection, the farmer, in addition to the information under § 16a.3 sentence 2 GenTG, must, at the latest one month before sowing or planting, inform the Federal Office of Consumer Protection and Food Safety, designating the land affected, of the fact that an agreement under § 16b.1 sentence 2 GenTG new has been entered into, or the fact that no information has been received from the neighbour in response to an enquiry, where he intends to deviate from the requirements of good professional practice by reason of the failure to supply information (§ 16b.1a sentence 1 GenTG). The information on deviations from good professional practice relating to the land in question (§ 16b.1a sentences 1 and 2 GenTG) is made accessible to the public. Apart from this, the data collected under § 16b.1a GenTG are governed by § 16a GenTG with the necessary modifications (§ 16b.1a sentence 3 GenTG).

II.

In its application for judicial review (…) [the applicant] ultimately challenges (…) the incompatibility of “§ 3 nos. 3 and 6, § 16a.1, 16a.3, 16a.4 and 16a.5, 16b.1 to 16b.4 and § 36a GenTG” as amended by Article 1 GenTNeuOG 2004 as most recently amended by Article 1 GenTÄndG 2008 with the Basic Law. (…)

The provisions thus challenged and § 16a.2 GenTG read as follows:

§ 3

Definitions

Within the meaning of this Act,

…

3. genetically modified organism

means an organism, with the exception of human beings, whose genetic material has been altered in a way that does not occur naturally by crossbreeding or natural recombination; a genetically modified organism also means an organism which was created by crossbreeding or natural recombination between genetically modified organisms or with one or more genetically modified organisms or by other methods of reproduction of a genetically modified organism, provided that the genetic material of the organism has characteristics which arise from genetic engineering operations,

…

6. Placing on the market

means the supply of products to third parties, including provision for third parties, and introduction into the area of application of the Act, where the products are not intended for genetic engineering operations in genetic engineering installations or for authorised release; however, the following do not constitute placing on the market:

a) international transit conducted under the supervision of the customs authorities,

b) provision for third parties, supply and introduction into the area of application of the Act for the purpose of an authorised clinical test,

...

§ 16a

Location register

(1) For the purpose of monitoring any effects of genetically modified organisms on the legal interests and concerns set out in § 1 nos. 1 and 2 and for the purpose of informing the public, the information to be notified under subsection 2 on the release of genetically modified organisms and the information to be notified under subsection 3 on the cultivation of genetically modified organisms shall be recorded in a federal register. The register will be kept by the competent superior federal authority and will contain the information notified under subsection 2 or subsection 3 for the whole territory of the Federal Republic of Germany. Pursuant to subsection 4, the register must be publicly accessible.

(2) The operator shall notify the competent superior federal authority at the latest three working days before the authorised release that the release of genetically modified organisms will actually be effected. The notification shall comprise the following information:

1. the designation of the genetically modified organism,

2. its genetically modified characteristics,

3. the release land and the size of the release area,

4. the period of release.

Changes in the information and the termination of the release shall be notified without delay.

(3) The cultivation of genetically modified organisms shall be notified to the competent superior federal authority by the person who farms the area at the latest three months before the sowing. The notification shall comprise the following information:

1. the designation and the unique identifier of the genetically modified organism,

2. its genetically modified characteristics,

3. the name and the address of the person who farms the area,

4. the cultivation land and the size of the cultivated area.

Changes in the information shall be notified without delay.

(4) The publicly accessible part of the register comprises:

1. the designation and the unique identifier of the genetically modified organism,

2. its genetically modified characteristics,

3. the release or cultivation land and the size of the area.

Information from the publicly accessible part of the register will be available for automatic retrieval on the internet.

(5) The competent superior federal authority will provide information from the part of the register which is not publicly accessible, including information on personal data, where the applicant gives prima facie evidence of a justified interest and there is no reason to assume that the person affected has an interest warranting protection in the refusal of information which carries more weight.

...

§ 16b

Dealing with products placed on the market

(1) A person who cultivates products permitted to be placed on the market which contain or consist of genetically modified organisms, or further processes them, in the case of animals keeps them, or places them on the market for profit or for commercial purposes or in a comparable manner shall take precautions to ensure that the legal interests and concerns set out in § 1 nos. 1 and 2 are not materially interfered with by the transfer of characteristics of an organism which arise from genetic engineering operations, by admixture or by other introductions of genetically modified organisms. The person need not comply with this duty with regard to the concerns relating to another person set out in § 1 no. 2 GenTG where the latter waives protection by agreement in writing or, in response to an enquiry by the person with the precautionary duty, does not provide the information necessary for this protection within one month, and in the given individual case the duty exclusively serves to protect the other person. The written agreement or the enquiry must inform the other person of the legal consequences of the agreement or of the failure to give information and must notify the other person that the latter must take account of third-party rights deserving protection. The permissible deviation from the requirements of good professional practice must be notified to the competent authority in good time before sowing or planting.

(1a) Supplementing the information under § 16a.3 sentence 2, the farmer shall also notify

1. the fact that an agreement within the meaning of subsection 1 sentence 2 has been entered into or

2. the fact that no information has been received from the neighbour in response to an enquiry within the meaning of subsection 1 sentence 2, where the farmer intends to deviate from the requirements of good professional practice by reason of the failure to supply information

to the competent superior federal authority at the latest one month before the sowing or planting, designating the land affected. In addition to the information under § 16a.4 sentence 1 no. 3, the publicly accessible part of the register established according to § 16a.1 sentence 1 includes the information relating to the land affected under sentence 1. Apart from this, § 16a applies with the necessary modifications.

(2) In connection with the cultivation of plants, with dealing with plants in other ways and with the keeping of animals, the precautionary duty under subsection 1 is satisfied by complying with good professional practice.

(3) Good professional practice, insofar as this is necessary to comply with the precautionary duty under subsection 1, includes without limitation

1. in dealing with genetically modified organisms, complying with the requirements of the authorisation for placing on the market under § 16.5a,

2. in the cultivation of genetically modified plants and in the production and application of fertilisers which contain genetically modified organisms, measures to prevent introductions on other plots of land and cross-pollination with other cultures on neighbouring areas and further dissemination by wild plants,

3. in keeping genetically modified animals, the prevention of escape from the area intended for keeping and of the intrusion of other animals of the same species into this area,

4. in the transport, storage and further processing of genetically modified organisms, the prevention of loss and of mixing and combining with other products.

(4) A person who deals for profit, for commercial or comparable purposes with products which contain or consist of genetically modified organisms must have the trustworthiness, knowledge, skills and equipment to be able to comply with the precautionary duty under subsection 1.

...

§ 36a

Claims in the case of interference with use

(1) The transfer of characteristics of an organism which arise from genetic engineering operations, or other introductions of genetically modified organisms, constitutes a material interference within the meaning of § 906 of the Civil Code if, contrary to the intention of the person entitled to use, by reason of transfer or other introductions products in particular

1. may not be placed on the market or

2. under the provisions of this Act or under other provisions may be placed on the market only when labelled with a reference to the fact that they are genetically modified or

3. may not be placed on the market with labelling which would have been possible under the legal provisions governing the method of production in each case.

(2) Observing good professional practice under § 16b.2 and 16b.3 is deemed to be financially reasonable within the meaning of § 906 of the Civil Code.

(3) In order to assess what is customary in the location within the meaning of § 906 of the Civil Code, it is not relevant whether the products are obtained with or without genetically modified organisms.

(4) If, in the actual circumstances of the individual case, more than one neighbour comes into consideration as the person responsible and if it cannot be established which of them caused the interference by its act, each of them shall be responsible for the interference. This shall not apply if each has caused only part of the interference and it is possible to allocate the compensation between the persons responsible under § 287 of the Code of Civil Procedure.

The applicant regards these provisions as substantively unconstitutional. In essence, it submits the following reasons:

1. In § 36a GenTG, the legislature intervened substantially in the liability regime, which was characterised by mutual consideration and balanced, of §§ 906, 1004 and 823 BGB and created a special liability law for the use of genetic engineering exceeding the previously applicable provisions. (…)

a) This is not consistent with the occupational freedom of the farmers and seed producers using genetic engineering, which is protected by Article 12.1 GG. (…)

b) § 36a GenTG interferes without justification with the property of users of genetic engineering and with a business enterprise established and operated by the farmers and seed producers affected by the liability (Article 14.1 GG). (…)

c) § 36a GenTG violates the principle of equality before the law (Article 3.1 GG). (…)

2. The location register governed by § 16a GenTG violates the right to informational self-determination (Article 2.1 in conjunction with Article 1.1 GG) of the users of genetic engineering. When personal data on the cultivation of GMOs and the name, address and land of the persons affected are collected, stored and made accessible to third parties — in part publicly — this encourages the politically motivated destruction of fields and endangers the property of the users of genetic engineering. Conversely, the location register is neither suitable nor necessary to achieve the goal of monitoring potential effects on the environment of GMOs admitted to the market or to achieve the intended transparency and the coexistence of the various crops. In particular, this objective and the requirements of EU law could be satisfied by publishing the municipality of the relevant location. (…)

§ 16a GenTG also violates Article 12.1 and Article 14.1 GG [with regard to the protection of trade and business secrets]. (…)

3. The precautionary duty contained in § 16b.1 to 16b.4 GenTG and good professional practice, and also the requirements imposed on the suitability of person and equipment, are incompatible with the occupational freedom of all persons who cultivate, further process or place on the market GMOs admitted to the market. (…)

4. With regard to the definition of the term "placing on the market" in connection with the definition of the GMO, § 3 nos. 3 and 6 GenTG is incompatible with Article 5.3 sentence 1 and Article 12.1 GG. For a placing on the market needing authorisation also exists if a farmer of conventional or organic crops supplies or stores products which have been mixed together with GMOs from a permitted release, either accidentally or because this was not technologically avoidable. The defensive claims and claims for compensation under § 36a.1 no. 1 GenTG would then apply; these have a massively deterrent effect. As a result of this, it becomes considerably more difficult, if not impossible, for university and non-university research institutions in particular to conduct release experiments for the purpose of researching into and developing transgenic plants. (…)

III.

(…)

1. The Federal Government regards the challenged provisions as constitutional. It states that the Genetic Engineering Amendment Act 2008 has no effect on the essential questions of law.

With the reform of genetic engineering law, the legislature strengthened the legal positions of all those involved. The Act promotes the coexistence of the different methods of production and the responsible treatment of genetic engineering. It offers appropriate protection against potential interference by genetic engineering and in doing so strengthens the acceptance of new technologies. The Act creates a reasonable balance between the fundamental rights of all those involved. In doing so, it protects natural resources.

(…)

2. The representatives of the Federal Office of Consumer Protection and Food Safety and the Federal Agency for Nature Conservation (Bundesamt für Naturschutz) submitted opinions on existing health and ecological risks and on disadvantages for agriculture free of genetic engineering.

3. The German Farmers' Association (Deutscher Bauernbund e.V.), the German Advisory Council on the Environment (Sachverständigenrat für Umweltfragen), BUND/Friends of the Earth Germany (Bund für Umwelt und Naturschutz Deutschland e.V.), the Organic Food Industry Federation (Bund Ökologische Lebensmittelwirtschaft e.V.), the Institute for Applied Ecology (Öko-Institut e.V.), the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V.) and the Association of the Catholic Rural Population (Verband Katholisches Landvolk e.V.) are opposed to the application for judicial review.

4. The German Farmers' Union (Deutscher Bauernverband e.V.), the German Raiffeisen Association (Deutscher Raiffeisenverband e.V.), the German Plant Breeders' Association (Bundesverband Deutscher Pflanzenzüchter e.V.), the Society for Plant Breeding (Gesellschaft für Pflanzenzüchtung e.V.), the Federal Association of German Seed Producers (Bundesverband Deutscher Saatguterzeuger e.V.), the German Research Association (Deutsche Forschungsgemeinschaft) and the German Biotechnology Industry Association in the German Chemical Industry Association (Deutsche Industrievereinigung Biotechnologie im Verband der Chemischen Industrie e.V.) support the application for judicial review.

B.

(…)

Extending the scope of the application for judicial review, § 16a.2 GenTG must also be included in the review of constitutionality. This is necessary by reason of the internal connection between the challenged provisions on the information in § 16a.1, 16a.4 and 16a.5 GenTG, to be notified under § 16a.2 GenTG, and § 16a.2 GenTG, which is not challenged.

C.

The application for judicial review is unfounded. § 3 nos. 3 and 6, § 16a.1, 16a.2, 16a.3, 16a.4 and 16a.5, § 16b.1, 16b.1a, 16b.2, 16b.3 and 16b.4, and § 36a GenTG as amended by Article 1 GenTNeuOG 2004 as most recently amended by Article 1 GenTÄndG 2008 are compatible with the Basic Law.

I.

The challenged provisions are formally constitutional.

1. The legislative competence of the federal legislature to enact the challenged provisions follows from Article 74.1 no. 26 second alternative GG in conjunction with Article 72.2 GG (…).

a) (…)

Article 74.1 no. 26 second alternative GG] is to be understood in a broad sense. In addition to human genetic engineering, it also covers genetic engineering in relation to animals and plants, and gives the federal legislature comprehensive competence to make law on genetic engineering. (…)

b) The requirements of Article 72.2 GG old and of Article 72.2 GG new are satisfied. Paying due regard to the legislature's prerogative of evaluation (see Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts — BVerfGE) 111, 226 <255> with further references), it is at all events necessary for there to be uniform federal legislation in the interest of the nation as a whole, to preserve legal unity (see BVerfGE 111, 226 <253-254> with further references).

2. The Genetic Engineering Reform Act 2004 and the Genetic Engineering Amendment Act 2008 also came into existence correctly. These Acts did not require the consent of the Bundesrat.

(…)

II.

The challenged provisions are substantively constitutional.

1. The Federal Constitutional Court may decide on the application without a referral for a preliminary ruling from the Court of Justice of the European Union under Article 267 of the Treaty on the Functioning of the European Union (TFEU). It is true that, in particular in changing the definitions of “genetically modified organism” and “placing on the market” in § 3 nos. 3 and 6 GenTG and in establishing the location register in § 16a GenTG, the legislature intended to implement requirements to this effect in Article 2 nos. 2 and 4 and Article 31.3 of Directive 2001/18/EC (BTDrucks 15/3088, pp. 22 and 26). However, since all the provisions challenged are compatible with the Basic Law, the interpretation of Community or European law provisions is not relevant to the decision. In this case, a referral is neither required nor permissible (see BVerfG, judgment of the First Senate of 2 March 2010 - 1 BvR 256/08 and others -, Neue Juristische Wochenschrift (NJW) 2010, p. 833 <835> marginal no. 185).

2. § 3 nos. 3 and 6 GenTG are compatible with Article 12.1 and Article 14.1 and with the freedom of scholarship guaranteed by Article 5.3 sentence 1 GG.

a) With the possibility of making deliberate changes to genetic makeup in order to create desired characteristics of organisms in a way that would not be possible with tradition breeding methods, genetic engineering intervenes in the elementary structures of life. It is extremely difficult or impossible to reverse the consequences of such intervention. Once genetically modified material has been released into the environment, it is difficult or impossible to restrict its spread, depending on numerous factors. On the other hand, research into and production of GMOs also holds considerable opportunities. Above all, with the help of such organisms larger yields can be harvested and the resistance of plants to pests and diseases can be increased.

In addition to the opportunities of genetic engineering, the health and ecological risks and in particular also disadvantages for agriculture free of genetic engineering must be borne in mind. A genetic engineering modification may have a variety of unintended effects, which may have consequences not only for the environment, but also for agricultural cultivation practice. Thus, where appropriate, even conventionally or organically planted crops — where they contain accidental or technologically unavoidable incidences of GMOs exceeding the tolerance threshold laid down in European law — must be correspondingly labelled. In addition, labelling referring to organic or biological production or with the words "Free of genetic engineering", which is subject to even stricter conditions, may cease to be permitted. As a result of this, the market price of products may be reduced or sale may become more difficult. In addition, producers may have additional costs because they have to introduce surveillance systems and measures to minimise the mixture of genetically modified and unmodified cultures.

In view of the highly controversial discussion in society between supporters and opponents of the use of genetic engineering in crops and the fact that the state of scientific knowledge is as yet not finally confirmed, in particular with regard to the causal relations and long-term effects of such a use of genetic engineering, the legislature has a particular duty of care in this area. In legislating, the legislature must balance not only the interests affected by the use of genetic engineering on the one hand and their regulation on the other hand: these are protected in particular by the right to life and physical integrity (Article 2.2 sentence 1 GG), the freedom of scholarship (Article 5.3 sentence 1 GG), occupational freedom (Article 12.1 GG) and the guarantee of property (Article 14.1 GG). But it must likewise comply with the duty contained in Article 20a GG also to protect natural resources out of responsibility for future generations (see BVerfGE 118, 79 <110>). This duty may be imposed both in order to avert dangers and also to take precautions against risks. The environmental interests thus protected by Article 20a GG also include the preservation of biological variety and the guarantee of a species-appropriate life for endangered animal and plant species.

b) § 3 nos. 3 and 6 GenTG do not violate Article 12.1 GG.

aa) The challenged provisions are definitions which in concurrence with other provisions may lead to encroachments upon fundamental rights. Occupational freedom is indirectly affected. In clarifying that in particular the products of cross-pollination are GMOs and that the GMOs arising from a release, such as, for example, cross-pollinated plants, are not excluded from "placing on the market" within the meaning of § 3 no. 6 GenTG, the legislature ensured that in these cases too the Genetic Engineering Act serves as a legal framework for the practice of an occupation or profession using genetic engineering and therefore encroachments upon Article 12.1 GG based on the Genetic Engineering Act extend to these cases too.

bb) Where there is indirect encroachment upon occupational freedom, however, this is justified.

The challenged amendments of § 3 nos. 3 and 6 GenTG serve legitimate public-interest goals. They are not only intended to clarify definitions against the background of a legal situation which was previously disputed, and thus promote legal certainty, but they also ensure that the Genetic Engineering Act (§ 3 no. 3 GenTG) and the special provisions on placing products on the market (§ 3 no. 6 GenTG) are applied as comprehensively as possible, and in particular also to the accidental descendants of GMOs which have been legally released. The amendments therefore serve the legitimate purposes of the Genetic Engineering Act under § 1 nos. 1 to 3 GenTG and the protection of important values of constitutional status, such as human life and health, the environment, but also occupational freedom and the freedom of property of persons potentially affected (Article 2.2 sentence 1, Article 12.1, Article 14.1 and Article 20a GG).

If the definition of the GMO in § 3 no. 3 GenTG and thus the area of application of the Genetic Engineering Act had been restricted to deliberately and directly caused genetic engineering modifications, the descendants that arose through chance events would have been excluded from the outset from every supervision under genetic engineering law. This relates not only to placing on the market (§§ 14 et seq., § 16d GenTG), but also to the treatment of products placed on the market (§ 16b GenTG), the observation of these (§ 16c GenTG), their labelling (§ 17b GenTG), the duties of notification of the operators and others involved (§ 21 GenTG) and the official powers (§§ 20, 25, 26, 28 et seq. GenTG). However, the intended protection of the legal interests and concerns set out in § 1 nos. 1 and 2 GenTG would no longer be fully guaranteed by general police and regulatory law, which is directed not to taking precautions against risks, but to averting dangers. The legislature was also entitled to regard the descendants of GMOs in general and the GMOs which are created by chance cross-pollination in particular as carrying a general risk and to subject them to the provisions of genetic engineering law in the amended version of § 3 no. 3 GenTG. The assumption of such a "basis risk" (see Schleswig-Holstein Administrative Court (Schleswig-Holsteinisches Verwaltungsgericht), order of 7 November 2007 - 1 B 33/07 -, juris, marginal no. 76; Hannover Administrative Court (Verwaltungsgericht Hannover), judgment of 1 October 2008 - 11 A 4732/07 - , Natur und Recht — NuR 2009, p. 67 <72>; Mecklenburg, NuR 2006, p.229 <232>) is within the legislature's prerogative of evaluation and does not require any empirical scientific evidence of the real danger potential of the GMOs and their descendants. For in a situation like the present, in which scientific knowledge is uncertain, the legislature is entitled to assess the potential dangers and the risks, particularly since the protected legal interests are enshrined in the constitution and carry great weight. In particular, the fact that the cases where § 3 nos. 3 and 6 GenTG applies may be unintended or technologically unavoidable events does not decrease the risk entailed by the release of GMOs into the environment and the marketing of genetically modified products of undesired or harmful, possibly irreversible effects, a risk which is to be controlled in the sense of the greatest possible precautions (see Recital 4 and 5 of Directive 2001/18/EC). In addition, the legislature would run the risk of failing to comply with its responsibility to protect natural resources (Article 20a GG) if it did not subject the descendants of GMOs which arose by chance events to any control.

c) A violation of the freedom of property of farmers affected (Article 14.1 GG) by reason of the requirement in § 3 nos. 3 and 6 GenTG of authorisation for placing on the market products which are contaminated with GMOs accidentally or because this was not technologically avoidable is also not relevant for these reasons.

d) Nor does § 3 nos. 3 and 6 GenTG violate Article 5.3 sentence 1 GG.

aa) However, the freedom of scholarship is affected when it coincides with other statutory requirements for intervention of the Genetic Engineering Act. The fundamental right of freedom of scholarship (Article 5.3 sentence 1 GG) is a fundamental provision that determines values (wertentscheidende Grundsatznorm) which governs the relationship of scholarship to the state and as a defensive right against the state protects free scholarly activity against state encroachments (see BVerfGE 15, 256 <263-264>; 35, 79 <112>; 95, 193 <209>). This free space of the scholar is available above all to the processes, practices and decisions in establishing knowledge and interpreting and disseminating it, which are based on the intrinsic laws of scholarship (see BVerfGE 35, 79 <112>; 47, 327 <367>; 90, 1 <11-27>; 111, 333 <354>).

On this basis, research into GMOs falls into the area of protection, and this is also the case where living organisms are introduced into the environment for experimental purposes — whether in release experiments or as part of test cultivations, followed by scientists, of GMOs admitted to the market — and can propagate themselves and spread out in it. Article 5.3 GG is therefore also affected if research takes place outside the closed system and incorporates the environment including the legal interests of third parties in the controlled experiment. This applies at all events to experimental research at universities.

In the amended version of § 3 nos. 3 and 6 GenTG, the legislature intended to clarify that in particular the products of cross-pollination are GMOs and that the GMOs arising from a release, such as, for example, cross-pollinated plants, are not excluded from "placing on the market" within the meaning of § 3 no. 6 GenTG, in contrast to the organisms intended for release. In this way the legislature ensured that scientific outdoor trials and their unintended consequences are also subject to the state's powers of supervision and intervention and the responsibility of research for consequences under the Genetic Engineering Act. It defined the basic conditions for research and influenced the practical implementation of research projects and their formulation of questions and methodology. Even if one were to see the amended version of § 3 nos. 3 and 6 GenTG only as a clarification of what could previously be known through interpretation of the provisions, the legislature would at minimum have clarified a disputed legal position in the sense of this interpretation and prevented it being given a different interpretation by the courts.

bb) However, insofar as there is indirect encroachment on the freedom of scholarship, this is justified.

Like other unconditionally guaranteed fundamental rights, the freedom of scholarship may be restricted on the basis of conflicting constitutional law (see BVerfGE 47, 327 <369>; 57, 70 <99>), in general, there must be a statutory basis for this (see BVerfGE 83, 130 <142>; 107, 104 <120>; 122, 89 <107>). A conflict between constitutionally protected fundamental rights must be solved by recourse to further relevant constitutional provisions and principles and to the principle of practical concordance by interpretation of the constitution (see BVerfGE 47, 327 <369>; 122, 89 <107>).

The protection of human life and health, of the occupational freedom and freedom of property of those potentially affected and of natural resources (Article 2.2 sentence 1, Article 12.1, Article 14.1, Article 20a GG) are important values of constitutional status which justify a restriction not only of occupational freedom and of property (see b and c above), but also of the freedom of scholarship.

3. The provisions on the location register in § 16a.1, 16a.3, 16a.4 and 16a.5 and § 16b.1a GenTG are, where they are linked to the cultivation of GMOs, compatible with the fundamental right to informational self-determination (Article 2.1 in conjunction with Article 1.1 GG) and with occupational freedom (Article 12.1 GG), the guarantee of property (Article 14.1 GG) and the freedom of scholarship (Article 5.3 sentence 1 GG) (a to d). Exactly the same applies insofar as § 16a.1, 16a.4 and 16a.5 GenTG relate to information on releases of GMOs which are to be notified under § 16a.2 GenTG; this subsection is also unobjectionable (e).

a) The fundamental right to informational self-determination (Article 2.1 in conjunction with Article 1.1 GG) is not violated by the provisions on the location register which relate to the cultivation of GMOs.

The fundamental right to informational self-determination guarantees the authority of the individual to decide in principle independently when and within what limits real-world personal fact situations may be revealed (see BVerfGE 65, 1 <43>; 78, 77 <84>; 84, 192 <194>; 96, 171 <181>; 103, 21 <32-33>; 113, 29 <46>; 115, 320 <341>). In particular, the right grants those who hold it protection against unlimited collection, storage, use or transmission of the data relating to them which are individualised or can be individualised (see BVerfGE 65, 1 <43>; 67, 100 <143>; 84, 239 <279>; 103, 21 <33>; 115, 320 <341>).

aa) Reference persons for the information on the cultivation of GMOs collected in the location register under § 16a.1 and 16a.3, § 16b.1a sentence 1 GenTG and made accessible under § 16a.4 and 16a.5 and § 16b.1a GenTG are the farmers of the cultivated areas and their "neighbours" set out in § 16b.1a GenTG. Under § 16a.3 sentence 1, § 16b.1a sentence 1 GenTG, the duty to notify the necessary information to the office keeping the register is that of the farmers of the cultivated areas.

Under § 3 no. 13a GenTG a farmer is "a legal or natural person or an association of persons without legal personality who or which has the power of disposition and physical control of an area for the cultivation of GMOs". A neighbour is a person who under § 16b.1 sentence 2 GenTG new waives his or her protection by written agreement or has not given the information necessary for this protection.

If the persons affected are natural persons, these hold the fundamental right to informational self-determination under Article 2.1 in conjunction with Article 1.1 GG. Legal persons under private law are recognised as holders of the fundamental right to informational self-determination, provided this fundamental right is based on Article 2.1 GG (see BVerfGE 118, 168 <203>). These differences in the range of protection between natural and legal persons, however, are not relevant in the present case of the abstract review of a statute, since in every case natural persons are among those affected and the protection of legal persons is no more extensive.

bb) § 16a.1 and 16a.3, § 16b.1a sentence 1 GenTG provide that personal data are recorded in the location register.

The area of protection of the fundamental right to informational self-determination only comprises personal data (see BVerfGE 118, 168 <184> with further references). Personal data means particulars of the personal or factual circumstances of a specific or ascertainable person (see BVerfGE 65, 1 <42>).

This relates in the first instance to the information to be notified under § 16a.3 sentence 2 no. 3 GenTG on the name and address of the person who farms the cultivated area and to corresponding information on the neighbour under § 16b.1a sentence 1 GenTG. Details of the factual circumstances of specific or ascertainable persons are given by the information on the designation and the unique identifier of the GMO, its genetically modified characteristics and the cultivated land and the size of the cultivated area (§ 16a.3 sentence 2 nos. 1, 2 and 4 GenTG) and the information relating to land on a restriction of protective measures with relation to a third party (§ 16b.1a GenTG). In each case, the office keeping the register can unequivocally establish the reference person from the notification, which links to each other the information on the personal and factual circumstances of those affected, and the fact that the data are stored together.

In this connection, the value and the sensitivity of a piece of information are not relevant. It is true that the name and address of a person are merely elementary information which is necessary for identification. And international and European law already require that the information contained in the publicly accessible part of the location register on the designation, the unique identifier and the genetically modified characteristics of the GMO (§ 16a.3 sentence 2 nos. 1 and 2, § 16a.4 sentence 1 nos. 1 and 2 GenTG) are made public, and they can be retrieved on the internet, in particular in the Living Modified Organism (LMO) Registry of the Biosafety Clearing-House (Article 20 of the Cartagena Protocol of 29 January 2000 on Biosafety to the Convention on Biodiversity (http://bch.cbd.int/protocol/, BGBl II 2003 p. 1506) and in the Community register of genetically modified food and feed (Article 28 of Regulation <EC> no. 1829/2003). Finally, the location and size of a cultivated area can normally be ascertained by the public, for farming takes place not in the private but in the social realm. In its natural surroundings, however, the cultivated area cannot generally be ascertained without further ado, either with regard to the farmer or with regard to the cultivation of a particular organism. However, the protection of the right to informational self-determination covers all information that gives any evidence about the reference person. It also covers basic data such as name and address, and information that is common knowledge or publicly accessible. Under the conditions of automated data processing in principle no data are now irrelevant (see BVerfGE 65, 1 <45>). Because they are linked, the data on personal and factual circumstances recorded in the location register acquire a new significance. Taken together, they give information in particular that a particular GMO is being cultivated by a particular person on a particular site.

cc) The provisions on the location register which are to be reviewed in the present case authorise the office keeping the register to collect and process these personal data on the cultivation of GMOs, and thus encroach upon the right to informational self-determination.

Interference with the right to informational self-determination may be constituted in particular by the acquisition, storage, use and transmission of personal information.

(1) The provisions on the notification (collection) and recording (storage) of the personal data on the cultivation of GMOs in § 16a.1 and 16a.3, § 16b.1a GenTG and on the supply of information from the part of the register which is not publicly accessible (transmission) in § 16a.5 GenTG are therefore an encroachment upon fundamental rights.

(2) The supply of information from the publicly accessible part of the register under § 16a.4 and § 16b.1a sentences 1 and 2 GenTG on personal data by automatic online retrieval is a special form of state transmission of data and thus a form of data processing (see § 3.4 sentence 2 no. 3.b of the Federal Data Protection Act (Bundesdatenschutzgesetz — BDSG) in the version promulgated on 14 January 2003 (BGBl I p. 66). If it is envisaged that personal data will be transmitted in this way, this is an encroachment upon the right to informational self-determination.

However, the legislature has provided that the publicly accessible part of the location register is to contain only information which describes factual circumstances (§ 16a.4, § 16b.1a sentence 2 GenTG). Information on personal circumstances such as name and address of a person, on the other hand, is recorded in the part of the register which is not publicly accessible and are referred to by the legislature as "personal data" (§ 16a.5 GenTG). However, this division does not cause the data uploaded to the internet to lose their personal connection. This continues as long as the reference person is "ascertainable" or "identifiable". Therefore - notwithstanding the distinction chosen by the legislature between personal data in § 16a.5 GenTG and other data in § 16a.4, § 16b.1a sentence 2 GenTG - the sole determining factor for the question of an encroachment upon fundamental rights is the distinction between ascertainability and non-ascertainability of the reference person. This is the criterion by which, in the present case, personal information can be retrieved on the internet. It must be assumed that an undetermined number of recipients have additional knowledge which makes it possible for them to identify the reference person in a short time and without great financial expense. In particular those who live locally may without further ado know who farms which agriculturally used cadastral units in a local subdistrict. The office keeping the register is authorised by § 16a.4, § 16b.1a sentence 2 GenTG to transmit personal data, at least with regard to these cases of transmission.

dd) The encroachment is constitutionally justified.

The right to informational self-determination is not guaranteed without limits. The individual must accept restrictions of this right which are in the predominant interest of others or of the public. Such restrictions must have a statutory basis from which the requirements and the scope of the restrictions follow clearly and in a way discernible to the citizen (1) and which satisfies the principle of proportionality (2). In addition, the effective protection of fundamental rights requires that the proceedings are structured in a way that satisfies the objective requirements (3).

(1) The collecting and processing of data on the cultivation of GMOs under § 16a.1, 16a.3, 16a.4 and 16a.5 and § 16b.1a GenTG satisfy the requirement that a provision be clear and specific.

The basis of this requirement with regard to the right to informational self-determination is in Article 2.1 in conjunction with Article 1.1 of the Basic Law itself. The occasion, the purpose and the limits of the encroachment must in principle be set out in the authorisation in a way that relates specifically to the area of relevance and is precise and well-defined (see BVerfGE 100, 313 <359-360, 372>; 110, 33 <53>; 113, 348 <375>; 118, 168 <186-300>). These requirements are satisfied in the present case.

Under § 16a.1 sentence 1, § 16b.1a sentence 3 GenTG, the collection and processing of data serve the purpose of monitoring any effects of GMOs on the legal interests and concerns set out in § 1 nos. 1 and 2 GenTG and for the purpose of informing the public.

Under § 16a.1 sentence 2 GenTG, the register is to be kept by the superior federal authority which is competent under § 31 sentence 2 GenTG, to which, under § 16a.3 sentence 1, § 16b.1a GenTG, the necessary information must be notified and which, under § 16a.4 and 16a.5, § 16b.1a sentences 2 and 3 GenTG, provides the information from the register. In this connection, § 16a.1 sentence 1, 16a.3 and in § 16b.1a sentence 1 GenTG define precisely who must notify what information at what time. In addition, § 16a.4, § 16b.1a sentence 2 GenTG state what information may be retrieved in what way from the publicly accessible part of the register.

Finally, § 16a.5 (where applicable in conjunction with § 16b.1a sentence 3) GenTG defines with sufficient precision the requirements for the grant of information from the part of the register which is not publicly accessible. Where the legislature used broad legal terms in this connection, this does not conflict with the principle of certainty. The terms “justified interest” and “interest warranting protection which carries more weight" occur in the context of the provisions on the location register, which narrow their meaning, and in this context they are sufficiently specific.

(2) The provisions to be reviewed on the collection and processing of data on the cultivation of GMOs under § 16a.1, 16a.3, 16a.4 and 16a.5 and § 16b.1a GenTG are not disproportionate.

(a) In these provisions, the legislature pursues legitimate aims of public interest. They implement Community law, create reasonable transparency and serve the purposes of § 1 GenTG. Their constitutional basis is found in particular in Article 2.2 sentence 1, Article 12.1, Article 14.1 GG and in the state aim of protection of natural resources in Article 20a GG.

§ 16a.1 sentence 1 GenTG provides that the location register serves to inform the public. The introduction of GMOs into the environment by release and cultivation is to be made transparent for the public (see BTDrucks 15/3088, p.26). In this connection, the creation of transparency is an independent and legitimate purpose of legislation (see Federal Constitutional Court, order of the First Chamber of the First Senate of 25 February 2008 - 1 BvR 3255/07 -, NJW 2008, p. 1435 <1436>). In a democratic and pluralistic society, the information recorded and published in the location register on the release and cultivation of GMOs makes an important contribution to the process of public opinion-forming. The public exchange of opinions and the involvement of society in these decisions relevant to the environment and their implementation not only protect the individual but also strengthen the effective control of state action. In order to create such transparency, it is legitimate to make particular public data generally accessible to the public, without further connection to particular purposes. The right to informational self-determination does not in principle exclude the creation of records generally accessible to the public, even if they are personal. In particular, the location register represents the high value accorded by Directive 2001/18/EC to the public's interest in having freely available information. Under Article 25.4 of Directive 2001/18/EC, the Member States are prohibited from treating as confidential information submitted in the authorisation procedure relating to a general description of GMOs, the name and the address of the registrant, the purpose and site of the release (see Article 2 no. 3 of Directive 2001/18/EC) and the intended purposes of use. In its judgment of 17 February 2009, the Court of Justice of the European Union stated that the notification of the information set out in Article 25.4 of Directive 2001/18/EC cannot be challenged by any reservation for the benefit of the protection of public order or of other statutorily protected interests (see ECJ, judgment of 17 February 2009 - C-552/07 -, ECR 2009, p. I-00987 <1029-1030.> para. 55 and operative part no. 2).

The location register also benefits the surveillance of any effects of GMOs on the legal interests named in § 1 no. 1 GenTG (§ 16a.1 sentence 1 GenTG). It thus in particular serves to protect human health, the environment and the property of others against harmful effects of the cultivation of genetically modified crops and to take precautions against such risks arising.

In addition, the location register is intended to monitor any effects of GMOs on the guarantee of coexistence under § 1 no. 2 GenTG and to ensure that potentially affected third parties are informed of the planned cultivation (§ 16a.1 sentence 1 GenTG). In this way, it makes a contribution to implementing the concern of coexistence (§ 1 no. 2 GenTG), which was made part of the purpose of the statute by the Genetic Engineering Reform Act 2004, and the European concept of coexistence on which this is based (on this, see: Article 26a of Directive 2001/18/EC; Commission Recommendation of 13 July 2010 on guidelines for the development of national co-existence measures to avoid the unintended presence of GMOs in conventional and organic crops, OJ C 200, p. 1). The aim of an amicable coexistence of the various agricultural production methods has its constitutional basis not only in the freedom protected by Article 14.1 GG of other producers to use their property in a self-determined manner, but also in their occupational freedom protected by Article 12.1 GG.

Finally, the location register serves the purpose of creating the legal framework for research into and development, use and promotion of the scientific, technological and economic possibilities of genetic engineering (§ 1 no. 3 GenTG). In particular, the information on the introduction of GMOs into the environment is capable of enabling the public to form its own opinion on the state authorised and monitored use of genetic engineering and improving the acceptance of the state decisions.

(b) The provisions relating to cultivation in § 16a.1, 16a.3, 16a.4 and 16a.5 and § 16b.1a GenTG are suitable to achieve these purposes.

The location register can support the effective surveillance of any effects of GMOs on the legal interests and concerns set out in § 1 nos. 1 and 2 GenTG and in this way it contributes to averting dangers and taking precautions against risks, and also to guaranteeing coexistence.

Giving information to the competent authorities on the areas where genetically modified crops are cultivated enables them in particular to observe and monitor the cultivation and its effects on the environment, to deliberately control production processes, to guarantee that coexistence measures are applied correctly and to carry out accompanying scientific research related to the location in order to record long-term or unforeseen effects.

The location register is suitable to inform the public and those potentially affected on the introduction of GMOs into the environment and in this way to promote the desired transparency, coexistence and social peace. In particular, neighbouring enterprises and other persons potentially affected may inform themselves in good time of the intended cultivation of such organisms and take measures to protect themselves against introductions into their products.

(c) The provisions relating to cultivation in § 16a.1, 16a.3, 16a.4 and 16a.5 and § 16b.1a GenTG are necessary to attain the purposes of the statute. Taking into account the scope for judgment and prognosis accorded the legislature in assessing necessity (see BVerfGE 102, 197 <218>; 115, 276 <309>; 116, 202 <225>), no method of collecting and processing data on the cultivation of GMOs is evident that is equally effective but less burdensome for those affected.

The competent state agencies have no comparable information to which they could have recourse to achieve the purposes of the location register. In particular, it is not the case that this information is already available as a result of the process for authorisation of placing on the market. The authorisation process relates not to the farmer of cultivated areas, but to the person who first places a product on the market (see § 15.3 sentence 3 no. 1 in conjunction with § 3 no. 7 GenTG).

The legislature was also entitled to regard the notification period of three months before the sowing or planting under § 16a.3 sentence 1 GenTG as necessary in order to implement the concept of a coordinated planning of cultivation. For before genetically modified plants are sown, not only must the notification to the location register be made. The neighbour must also be informed, and if appropriate, the neighbour's information must be taken into account by adapting the cultivation plans. In addition, agreements in writing may be made on good professional practice. These alterations and agreements in turn must be notified to the location register. In addition, in-company deviations from good professional practice must be notified to the competent authorities.

In the same way, data processing under § 16a.1, 16a.4 and 16a.5, § 16a.1a GenTG is necessary to attain the purpose. Application proceedings for the supply of information on the precise cultivation locations would not implement the purposes pursued by the statutory provisions as effectively. The high degree of transparency aimed for could not be achieved if only the municipality or local subdistrict of the site under § 16a.4 GenTG were posted on the internet. The possibility of early planning, agreement and coordination of conflicting user interests and the economic efficiency of the supply of information would also not be guaranteed in the same way by application proceedings.

If the justified interest in the supply of information under § 16a.5 GenTG were restricted to cases in which there was a threat of a "material impairment of property" and "substantial impairments of the neighbour's property", this would not be qualified to adequately ensure that persons potentially affected would be informed to the extent intended by the legislature. In particular in the phase of cultivation planning, it will generally not be foreseeable whether such disadvantages are to be expected, with the consequence that information on the name and address of the farmers may be given either in a restricted form or not at all. The possibility of using the location register to coordinate local production structures with each other by cultivation planning and to coordinate the separation of genetically modified and non-genetically modified crops would then not be available to a comparable extent.

(d) The provisions relating to cultivation in § 16a.1, 16a.3, 16a.4 and 16a.5 and § 16b.1a GenTG also comply with the requirement of proportionality in the narrow sense.

Collecting and processing personal data on the cultivation of GMOs in the form envisaged, however, do constitute a serious encroachment.

The data to be notified under § 16a.3 and § 16b.1a GenTG are linked in the location register, with the result that new information going beyond the individual information is created. The collection of data acquires additional weight because violations carry fines under § 38.1 no. 9 GenTG. In addition, the processing of personal data under § 16a.4, § 16b.1a sentence 2 GenTG by automatic retrieval on the internet is a particularly comprehensive form of encroachment upon the right to informational self-determination (see BVerfG, order of the First Chamber of the First Senate of 25 February 2008 - 1 BvR 3255/07 -, NJW 2008, p. 1435 <1436>). After retrieval, the data may at will be further processed, linked and used for a large number of purposes, including the planning of criminal offences to the detriment of a farmer or neighbour.

However, under certain aspects the seriousness of this encroachment is mitigated.

The occasion for the encroachment upon fundamental rights is given by the persons affected themselves in their conduct, which may have considerable effects on the environment and the legal interests of third parties and therefore gives rise to the need for state surveillance and an interest of the public in having freely available information. In addition, the effort involved in the collection of data is relatively small. Insofar as a regulatory offence under § 38.1 no. 9 GenTG is committed if notification under § 16a.3 sentence 1 or 3 GenTG is not made or is not made correctly or not made in good time, correct conduct does not entail any particular difficulties for the farmer. The information to be notified under § 16a.3 GenTG relates solely to farmers and their occupational work, and farmers can check whether they are complete and correct. After all, the weight constituted by publication on the internet is qualified by the fact that the recipients can relate the information to a person only if they have additional knowledge or information from the part of the register which is not accessible to the public. For the overwhelming majority of the relevant recipients of information worldwide, the reference persons remain anonymous. These recipients will also normally have no interest in relating the specific cultivation to a particular person.

In view of the legitimate public interests served by the location register, the encroachment is therefore not inappropriate. In dividing the register into a section accessible to the public and a section not accessible to the public, the legislature created a workable and constitutionally unobjectionable compromise between the state's and the public's interest in freely available information on the one hand and the interest in confidentiality of the reference persons on the other hand.

Nor can it be raised as an objection to the statutory provisions that the establishment of the location register increases the likelihood of wilful destruction of crops. Even before the location register was introduced, there were repeated obstructions of the release and cultivation of GMOs; these had to be dealt with by police law and criminal law. Against this background, the legislature implemented and developed its concept of an amicable coexistence of the various means of production and of social peace. One component of the concept - notwithstanding the requirements of Community law, which apply in any case - is transparency in informing the public on the use of genetic engineering on the one hand and protection of the users of genetic engineering against the dangers emanating from this public by having a part of the location register which is not publicly accessible and by the means of police law and criminal law on the other hand. As in other cases where the freedom of property, occupational freedom or the freedom of research is obstructed by third parties, the state has a duty to promote and protect the unobstructed exercise of fundamental rights in the individual case. To date it is not apparent that the location register has created a situation of such great danger to farmers that the legislature has a patent duty to create more extensive protective mechanisms against unlawful and criminal destruction of fields.

Nor do the provisions on the part of the location register which is not publicly accessible, in § 16a.5 GenTG, limit the right to informational self-determination inappropriately. Under § 16a.5 GenTG, information from the part of the register which is not publicly accessible may be supplied only if the applicant gives prima facie evidence of a justified interest and there is no reason to assume that the person affected has an interest warranting protection in the refusal of information which carries more weight. Those applying the law therefore have a duty to weigh interests, which makes it possible to come to an assessment related to the individual case.

(3) Finally, the protection of fundamental rights is also ensured by an appropriate organisation of proceedings.

The use of personal data must be restricted to the purpose laid down by statute (see BVerfGE 65, 1 <46>). Duties of explanation, information and deletion are also important (see BVerfGE 65, 1 <46>). These requirements are satisfied in the present case.

The legal situation, which is clear in this respect, ensures that the persons affected are informed before data are collected of what data can be retrieved on the internet and subject to what conditions information may be given on the personal data supplied. It is constitutionally unobjectionable that in this connection particular data are also made accessible to the general public without further limitation of use to specific purposes.

Information on the notification to the location register may be given to the neighbour affected under § 16b.1a GenTG as part of the explanation of the legal consequences of a written agreement or of the failure to give information under § 16b.1 sentence 3 GenTG. At all events, the neighbour is adequately protected by the fact that the collection, storage and transmission of the data in § 16b.1a GenTG is expressly provided by statute. Accordingly, under § 19a.2 no. 3 BDSG there is no duty to inform a person affected without whose knowledge the data were collected on the basis of an express statutory provision.

It is not necessary to inform the person affected on the retrieval of data from the publicly accessible part of the register because the person affected knows even at the time when the data are collected which data will be made public, and the person affected can then prepare for this. Apart from this, § 19 BDSG provides for extensive duties of information on data collected and transmitted, and this applies with the necessary modifications to legal persons under § 16a.7 GenTG. There are no constitutional objections to § 19 BDSG in this connection (see also BVerfGE 120, 351 <365>).

In addition, the purpose of the collection and processing of data on the cultivation of GMOs, which is related to and limited to a specific project, requires that all data that are not needed or are no longer needed to achieve the purpose are deleted (see BVerfGE 113, 29 <58>). In the present case, the deletion of data fifteen years after they are first stored is ordered by statute in § 16a.6 sentence 2, § 16b.1a sentence 3 GenTG, which satisfies this requirement.

b) The provisions on the cultivation of GMOs in § 16a.1, 16a.3, 16a.4 and 16a.5 and § 16b.1a GenTG are compatible with Article 12.1 GG.

aa) The obligation to notify information on cultivation to the location register under § 16a.3 GenTG does not violate the occupational freedom guaranteed by Article 12.1 GG under the aspect of the protection of trade and business secrets.

In principle, the fundamental right of occupational freedom also guarantees the protection of trade and business secrets (see BVerfGE 115, 205 <229>). If trade and business secrets are disclosed by the state or if the state requires their disclosure, this impinges on the area of protection of Article 12.1 GG. In this connection, trade and business secrets include all facts, circumstances and events relating to an enterprise which are not known to the public but are accessible only to a restricted category of persons and whose non-disclosure is in the justified interest of the rightholder.

Thus, neither are the data to be collected under § 16a.3 GenTG on the GMO and its location trade and business secrets, nor does the collection and processing of these data appear qualified to entail considerable competitive disadvantages. Since the cultivation takes place in the public realm, observation and knowledge of it is not from the outset restricted to the agricultural business or enterprise concerned. The GMO, its genetically modified characteristics and the unique identifier are published on the internet without relevance to the location register. In addition, the desire for confidentiality must arise from justified interests, and it is therefore irrelevant whether an enterprise wishes to avoid a negative image which may be associated with the use of genetic engineering.

bb) The duty of the farmers to notify information to the register authority within specific periods of time is a regulation of the practice of an occupation or a profession; however, this is justified by the reasons of public interest of pre-eminent importance set out above.

Apart from this, the fundamental right of occupational freedom offers in principle no protection against state information measures which extends beyond the right to informational self-determination (see BVerfGE 118, 168 <205>).

c) For the same reason, a violation of Article 14.1 GG under the aspect of the protection of trade and business secrets or of the danger of violations of property by genetic engineering opponents is out of the question.

d) The provisions in § 16a.1, 16a.3, 16a.4 and 16a.5 and § 16b.1a GenTG which are tied to the cultivation of GMOs are compatible with Article 5 3 sentence 1 GG.

If the cultivation is carried out for scientific purposes, the duty of the farmers to supply information on the cultivation to the register authority within certain periods of time also applies to the conditions for carrying out the research project, and thus impinges on the area of protection of Article 5.3 sentence 1 GG. However, the restriction constituted by this is not of great weight when set against the freedom of research, and it is justified by the protection of the legal interests of constitutional status set out above which conflict with it.

e) On the same reasoning, the provisions in § 16a.1, 16a.4 and 16a.5 GenTG on the information to be notified to the Federal Office of Consumer Protection and Food Safety by the operator under § 16a.2 GenTG on the release of GMOs are compatible with the fundamental right to informational self-determination (Article 2.1 in conjunction with Article 1.1 GG) and with Article 12.1, Article 14.1 and Article 5.3 sentence 1 GG. For the reasons set out, there are also no inescapable constitutional objections to § 16a.2 GenTG.

4. § 16b.1, 16b.2, 16b.3 and 16b.4 GenTG are compatible with Article 12.1 GG. Nor can a violation of Article 5.3 sentence 1, Article 3.1 and Article 2.1 GG be established.

a) § 16b.1, 16b.2, 16b.3 and 16b.4 GenTG as most recently amended by Article 1 GenTÄndG 2008 are compatible with Article 12.1 GG.

aa) § 16b.1, 16b.2, 16b.3 and 16b.4 GenTG encroach upon occupational freedom. In these provisions, the legislature provides for the treatment of products permitted to be placed on the market which contain or consist of GMOs. § 16b.4 and § 16b.1 sentence 1 GenTG, in the alternative relating to placing on the market, relate directly to activity for profit-making purposes in this connection; the other provisions challenged at all events have an objective tendency to regulate an occupation or profession. For they typically relate to dealing for profit or for commercial purposes with the products permitted to be placed on the market and are primarily basic legal conditions for the practice of an occupation or profession. The obligation to take precautions against material interference with the legal interests and concerns set out in § 1 nos. 1 and 2 GenTG here goes beyond warding off specific dangers and enables the authority to intervene at an earlier point in time than would be possible when danger is warded off under police law.

bb) The encroachment upon occupational freedom is constitutionally justified.

(1) The provisions are sufficiently specific.

In § 16b.1 sentence 1 GenTG, the legislature defines the contents and the aim of the precautionary duty to the effect that particular legal interests and concerns may not be "materially interfered with". When an interference is material can be determined with the help of the recognised rules of interpretation. The legislature intends European threshold values on the labelling obligation to give orientation and the term to be defined in more detail by means of the rules of interpretation laid down in § 36a.1 GenTG (BTDrucks 15/3088, p. 27). § 36a.1 GenTG takes up the term "material interference" in § 906 BGB. Principles of interpretation which have been developed in connection with this provision may therefore also be consulted for the interpretation of § 36a.1 GenTG.

§ 16b.1 sentence 2 GenTG new cannot be objected to on the grounds of a violation of the requirement of certainty under the rule of law. The actual requirements of the legal consequence contained in § 16b.1 sentence 2 GenTG new are recognisable in a way that can reasonably be expected of the persons affected. At all events, they can be determined by way of interpretation with the help of the recognised rules of interpretation. The possibilities of more extensive legislation are also limited, depending on the nature of the real-world fact situation involved. Whether and how far the precautionary duty may be waived in the individual case may in the last instance only be determined for each individual case, taking account of the specific local circumstances. The questions of liability arising from the application of § 16b.1 sentence 2 GenTG new were not dealt with by the legislature in § 16b GenTG. The legislature was therefore able to leave the general law of contractual and non-contractual liability and the principles developed in connection with this — also in connection with a contractual waiver of a favourable legal position — in place. Taken as a whole, § 16b.1 sentence 2 GenTG new gives rise to no inescapable objections with regard to the requirement of certainty under the rule of law.

§ 16b.2 and 16b.3 GenTG are also sufficiently specifically drafted. It is unobjectionable that the legislature did not exhaustively provide for the principles of good professional practice in § 16b.3 GenTG (“includes without limitation”). In drafting these principles in open terms, the legislature was entitled to take account of the variety of real-world fact situations legislated for. The concept of good professional practice is on the one hand open enough to allow new developments and on the other hand suited to create a framework within which the farmers can and must act. What good professional practice includes in the individual case can be adequately determined by interpreting the relevant provisions, in particular also in conformity with the evaluations on which the examples given in the provisions are based, with the help of the recognised methods of interpretation. Apart from this, in § 16b.6 GenTG the legislature provided for the Federal Government to authorise delegated legislation to be enacted which may put the principles of good professional practice in more specific terms.

Finally, the requirements imposed on the suitability of person and equipment in § 16b.4 GenTG are sufficiently described. In describing these requirements, the legislature uses indefinite legal terms such as "reliability" and "knowledge", which have always been used in statutes on economic administration (e.g. § 35.1 of the Industrial Code (Gewerbeordnung) and § 4.1 sentence 1 no. 1 of the Licensing Act (Gaststättengesetz)). These terms have been given substance in a long tradition of legislation, administrative activity and case-law in such a way that there can be no doubt as to their certainty under the rule of law, even though for every new area of application they have to be defined afresh (see BVerfGE 49, 89 <134>). In the same way, the terms "skills" and "equipment" used in § 16b.4 GenTG can be sufficiently defined using the traditional methods of interpretation. The purpose of the suitability of person and equipment is sufficiently defined in the reference to satisfying the precautionary duty under § 16b.1 GenTG.

(2) The encroachment upon occupational freedom is proportionate.

(a) The provisions on the precautionary duty and good professional practice in § 16b.1, 16b.2 and 16b.3 GenTG are permissible as provisions on the practice of an occupation or a profession because they are legitimated by sufficient reasons of public interest, are suitable and necessary to attain aims of public interest and do not unreasonably burden the persons affected (see BVerfGE 30, 292 <316>; 36, 47 <59>; 61, 291 <312>; 68, 272 <282>; 103, 1 <10>; established case-law). The expert knowledge requirements of § 16b.4 GenTG are also regulations of the practice of an occupation or a profession.

(b) The challenged provisions on the precautionary duty, good professional practice and the suitability of person and equipment serve legitimate aims of the public interest.

The precautionary duty is intended to achieve a responsible treatment of GMOs and thus guard against a material interference with the legal interests of § 1 nos. 1 and 2 GenTG by the introduction of these organisms (§ 16b.1 sentence 1 GenTG). This aim is also served by the principles of good professional practice and the requirements placed on the suitability of person and equipment, which in each case relate to compliance with the precautionary duty (§ 16b.2, 16b.3 and 16b.4 GenTG). In creating the precautionary duty, the legislature takes account of the uncertainty of knowledge and prognosis — which also exists with regard to the treatment of GMOs — which results from the current state of science and technology and from uncertainties in these. The precautionary duty and good professional practice are intended as far as possible to avoid the spread of such organisms from the outset or, if this is unavoidable, to reduce it to a minimum (BTDrucks 15/3088, pp. 26-27). The requirements of person and equipment (§ 16b.4 GenTG) are intended to ensure that the user is competent and prepared to do this and thus to guarantee that the work is carried out properly (BTDrucks 15/3088, p. 27).

§ 16b.1, 16b.2, 16b.3 and 16b.4 GenTG thus serve the purpose of taking precautions against harmful effects of genetic engineering procedures and products on human life and health, the environment in its interactive structure, animals, plants and physical goods (§ 1 no. 1 GenTG). The provisions also put into concrete terms the guarantee of coexistence (§ 1 no. 2 GenTG) and in this way serve in particular to protect occupational freedom and the freedom of property of persons potentially affected and the goal of preserving the freedom of choice for producers and consumers, to create certainty of law and reliability in planning and to establish social peace by guaranteeing an amicable coexistence of agricultural crops (BTDrucks 15/3088, pp. 19 and 27). Finally, the legislature also has the aim of creating the legal framework for research into and development, use and promotion of the scientific, technological and economic possibilities of genetic engineering (§ 1 no. 3 GenTG).

(c) The provisions on the precautionary duty and good professional practice and the suitability of person and equipment are suitable to achieve these purposes.

Insofar as the legislature, in the Genetic Engineering Amendment Act 2008, removed the prohibition of acts endangering coexistence in § 16b.1 sentence 2 GenTG old and replaced it for the benefit of the users of GMOs with an exception from the precautionary duty, the amendment remains within the priority of assessment and prognosis accorded it. It does not result in the provision being unsuitable for failure to pursue the aim of precaution with sufficient focus.

(d) The challenged provisions on the precautionary duty and good professional practice and the suitability of person and equipment are necessary to achieve the statutory purposes. Taking into account the scope for judgment and prognosis also accorded the legislature in assessing necessity (see BVerfGE 102, 197 <218>; 115, 276 <309>; 116, 202 <225>), no equally effective means which is less burdensome for those affected is apparent to achieve the intended responsible dealing with GMOs.

In particular, the argument that the protection of the legal interests set out in § 1 no. 1 GenTG is already ensured by the assessment and authorisation procedure in the course of authorisation for placing on the market cannot be used to deny the necessity of the provisions on the precautionary duty and good professional practice. Admittedly, the grant of authorisation for placing on the market is fundamentally associated with the assessment that unjustifiable harmful effects on the legal interests set out in § 1 no. 1 GenTG such as human health and the environment are not to be expected (§ 16.2 sentence 1 GenTG). However, this decision is a prognosis, which cannot exclude the possibility of unforeseen harmful effects, for example on human health or the environment. The purpose of the precautionary duty relating to the interests protected by § 1 no. 1 GenTG is precisely to guarantee, supplementing the conditions for the authorisation of placing on the market, responsible dealing with the GMOs permitted to be placed on the market and thus a protection of legal interests after placing on the market which is as comprehensive and complete as possible.

(e) The challenged provisions on the precautionary duty, good professional practice and the conditions for the suitability of person and equipment are also proportionate in the narrow sense.

The public-law obligations laid down in § 16b.1, 16b.2, 16b.3 and 16b.4 GenTG contain strict requirements for the practice of an occupation or profession using GMOs permitted to be placed on the market and therefore encroach to a considerable extent upon the occupational freedom protected by Article 12.1 GG:

The burden associated with this is already limited by the fact that the Act accepts a spread of GMOs for the benefit of the use of "green" genetic engineering which does not lead to a material interference with the interests protected by § 1 nos. 1 and 2 GenTG. The weight of the encroachment is also mitigated by the possibility existing under § 16b.1 sentences 2 to 4 GenTG new of not complying with existing requirements which exist solely for the protection of the neighbour’s economic coexistence (§ 1 no. 2 GenTG) in the individual case where that neighbour either consents in writing or fails to respond. In addition, the requirements for conduct contained in § 16b.3 GenTG are only part of good professional practice "insofar as this is necessary to comply with the precautionary duty under subsection 1". They contain — at present supplemented and put into concrete terms by the Ordinance on Good Professional Practice in the Breeding of Genetically Modified Plants (Verordnung über die gute fachliche Praxis bei der Erzeugung gentechnisch veränderter Pflanzen — Gentechnik-Pflanzenerzeugungsverordnung — GenTPflEV — Genetic Engineering Plant Breeding Ordinance) of 7 April 2008, BGBl I p. 655) — the recommendations of the European Union for coexistence measures (see Commission Recommendation of 13 July 2010 on guidelines for the development of national co-existence measures to avoid the unintended presence of GMOs in conventional and organic crops, OJ C 200, p. 1) and the provisions for use laid down in the accompanying product information (§ 16b.5 GenTG) - normative requirements, to which a user of GMOs and a person potentially affected can adapt themselves. As a result of this, the certainty of law and reliability in planning has improved for the users too. In addition, the operational measures necessary to implement the statutory requirements can build on already existing practices or procedures of separating crops and on existing experience of the treatment of identity-protected plant cultivars and on seed production practices. Finally, there is the possibility of cooperating with neighbouring producers. Management and production may be coordinated and, for example, cultivars with different flowering times may be used, different sowing times be agreed or crop rotation processes be coordinated. In this way alone, the costs of the separation of genetically modified and unmodified crops can be considerably reduced, the risk of cross-pollination with neighbouring cultures be minimised, compliance with the threshold values for labelling food and feed be enabled and ultimately even cases of liability be avoided in advance (see BTDrucks 15/3088, p. 27 with reference to Commission Recommendation of 23 July 2003on guidelines for the development of national strategies and best practices to ensure the coexistence of genetically modified crops with conventional and organic farming —2003/556/EC —, OJ, L 189, p. 36).

In contrast, the legitimate aims of public interest, which caused the legislature to provide for a precautionary duty, for good professional practice and for the suitability of person and equipment, carry more weight. Notwithstanding the classification of § 16b.4 GenTG as the regulation of the practice of an occupation or a profession, they could even justify legislation on the choice of an occupation or profession. The protection of humans, animals, plants and the environment in its interactive structure are constitutionally established in Article 2.2 sentence 1, Article 12.1 and Article 14.1, and in Article 20a GG. The flanking legislative aims set out above also serve important concerns of the public interest and, like consumer protection, for example, are also recognised in European Union law.

In realising these aims, the legislature, precisely against the background of the broad social and scientific debate on the use of genetic engineering and its appropriate government regulation, must be given a broad discretion.

If one puts these constitutionally protected rights and interests which are affected in relation to each other and includes the further flanking legislative aims in the weighing of interests, the weighting made by the legislature is unobjectionable.

The provisions challenged on the precautionary duty, on good professional practice and on the suitability of person and equipment do not unreasonably burden persons involved in the treatment of GMOs (§ 16b.1, 16b.2, 16b.3 and 16b.4 GenTG), nor are the requirements of person and equipment out of proportion to the intended purpose of proper performance of work (§ 16b.4 GenTG).

The legislature also left the authorities and non-constitutional courts enough latitude to ensure that § 16b.1, 16b.2, 16b.3 and 16b.4 GenTG are proportionately applied in the individual case. This relates in particular to the question of what in the individual case constitutes precautionary duty and good professional practice. The requirements on precautionary duty and good professional practice, which are broadly defined here, make it possible for the de facto basic conditions of treatment of GMOs to be appropriately taken into account in the individual case, in particular at the actual cultivation sites, and for the scope of the duties to be restricted to the degree which is necessary in each case to avoid substantial interference with the protected interests of § 1 nos. 1 and 2 GenTG.

The latitude here given to those applying the law remains within reasonable limits. The necessary standards must gradually be developed through administrative and judicial parameters, observing the principle of proportionality. In this process, it must be taken into account that the use of genetic engineering is generally permitted and that the legislature intends it to remain possible. § 16b GenTG requires no precautions which are absolutely certain to exclude risks to the legal interests of § 1 nos. 1 and 2 GenTG and thus may in effect lead to a prohibition of dealing with GMOs that are permitted to be placed on the market. Instead, the spread of these organisms is only to be avoided as far as possible through responsible treatment and, where it is unavoidable, to be reduced to a minimum (BTDrucks 15/3088, pp. 26-27). Under present law, therefore, requirements may only go as far as is necessary and reasonable in the circumstances of the individual case. Within this scope, the persons involved will at present find further standards to assist them in putting the challenged provisions into concrete terms in the Genetic Engineering Plant Breeding Ordinance, the recommendations of the European Union for coexistence measures (see Commission Recommendation of 13 July 2010 on guidelines for the development of national co-existence measures to avoid the unintended presence of GMOs in conventional and organic crops, OJ C 200, p. 1) and the provisions for use laid down in the accompanying product information (§ 16b.5 GenTG). Remaining uncertainties do not create an unreasonable burden for the users of GMOs.

The restrictions associated with § 16b.4 GenTG are legitimated on the facts of the case. They are based on the fact that special theoretical and practical knowledge and an appropriate operational structure are necessary in order to avoid introductions of GMOs into other cultures or to reduce them as far as possible, and that the exercise of the occupation or profession in question would be improper if it did not satisfy such requirements and would entail dangers to the interests protected by § 1 nos. 1 and 2 GenTG.

b) § 16b.1, 16b.2 and 16b.3 GenTG are also compatible with the freedom of scholarship (Article 5.3 sentence 1 GG).

aa) The challenged provisions on the precautionary duty and good professional practice must be measured by the standard of the freedom of scholarship, unless they apply exclusively to treatment for profit or for commercial or comparable purposes. At all events, experimental research at universities is protected by the freedom of scholarship in this regard.

bb) The requirements for the precautionary duty and good professional practice in the treatment of GMOs permitted to be placed on the market encroach upon the freedom granted by Article 5.3 sentence 1 GG to freely determine the formulation of questions and methodology, including the practical conduct of a research project.

cc) The legitimate public interest concerns which justify the encroachment upon Article 12.1 GG, that is, human life and health, occupational freedom and the freedom of property of persons potentially affected (Article 2.2 sentence 1, Article 12.1, Article 14.1 GG) and the protection of natural resources (Article 20a GG) are important values of constitutional status which, for the reasons stated above, also justify an encroachment upon the freedom of scholarship.

c) § 16b.1, 16b.2, 16b.3 and 16b.4 GenTG do not violate Article 2.1 GG.

Article 2.1 GG may be used as a standard of review for the restriction of foreigners of the freedom to engage in business activities and for imposing an obligation on private persons who do not deal with GMOs for profit where these persons are not protected by occupational freedom (Article 12.1 GG). But the encroachment upon the general freedom of action is justified for the reasons set out on Article 12.1 GG (C II 4 a bb above).

Where § 16b.1 sentence 2 GenTG new creates legal consequences for silence, this does not entail an unreasonable burden for the neighbour. Even if the provision is interpreted as a fictitious declaration of intent and an encroachment upon the freedom of contract, it is at all events justified.

Under § 16b.1 sentence 2 GenTG new, legal consequences are deemed to follow from silence; this removes uncertainties as to the consent to a particular planned cultivation and thus improves reliability in planning and certainty of law in the use of land which has to be notified under § 3 GenTPflEV and under § 16b.1 sentence 4 GenTG. This is related to the legislature's concern that agreement on cultivation planning should be encouraged as a means to ensure coexistence and at the same time the user of genetic engineering should not be burdened more than necessary for the benefit of protected interests. § 16b.1 sentence 2 GenTG new is suitable and necessary to achieve this legitimate aim.

Appropriateness is also guaranteed. When creating categories of persons, the legislature treats those who are to be notified of the cultivation of GMOs as deserving protection. A person who farms conventionally or organically is to be able to rely on potentially interfering cultivation being notified and consulted on. On the other hand, the legislature requires the persons so protected to declare themselves within one month as to their need for protection in response to a concrete enquiry from the user of GMOs. Otherwise it is presumed that there is no need for protection, and therefore the user can carry out the planned cultivation. The user is thus also relieved of the uncertainty of having to consider whether the silence constitutes an implied waiver. This balancing of interests which may conflict with each other is within the legislature's discretion in drafting.

d) Nor do the challenged provisions on the precautionary duty, good professional practice and the suitability of person and equipment violate the principle of equality before the law of Article 3.1 GG.

The unequal treatment of users of genetic engineering who have a precautionary duty in comparison to conventional or organic farmers follows from the particular characteristics of the products which contain or consist of GMOs. In differentiating, the legislature pursues legitimate public interest aims which are so important that they justify not only the encroachment upon Article 12.1 and Article 5.3 sentence 1 GG, but also the unequal treatment.

Where § 16b GenTG distinguishes between those persons who deal with GMOs for profit or in a comparable manner and other users of genetic engineering, this is based firstly on the fact that GMOs are normally used for the purpose of profit to a larger extent than for other purposes and the protected interests are thus endangered to a greater degree. Secondly, the additional requirements in connection with dealing with GMOs for profit are typically also accompanied by greater advantages from the use of genetic engineering. These circumstances justify the unequal treatment.

The unequal treatment of the users of GMOs permitted to be placed on the market, who have a precautionary duty, in comparison to those who release such organisms for experimental purposes, is ultimately related to the fact that the authorisation for release can include the safety measures required by the state of scientific and technological knowledge in the individual case and adjusted for the specific experiment and location (§ 16.1 no. 2 GenTG). In the authorisation for placing on the market, in contrast, it is not usually possible to take appropriate account of concrete conditions of cultivation, since this authorisation is granted for a large number of cultivation sites and with general validity for each Member State. This circumstance justifies the differentiation. 5. § 36a GenTG is compatible with Article 14.1, Article 12.1, Article 5.3 sentence 1 and Article 3.1 GG.

a) In the concept of law relating to neighbours of § 36a GenTG, those potentially liable are the owners or users of the land from which the interference issues, insofar as they determine the type of use causing an interference, and, if the interference comes from an installation, the persons who run the installation and on whose will its removal depends (see BGHZ 155, 99 <102>).

Primarily, therefore, § 36a GenTG affects the users of GMOs in research, agriculture, forestry and gardening. The category of persons liable also includes legal persons under public law, such as for example universities, at all events if the use of the land from which the interference issues is not purely government action but private-law action, and these persons are therefore subject to liability under civil law. It is not necessary to determine finally whether they are also the target group of § 36a GenTG if the use is purely government action. As previous case-law practice shows, the liability of government research institutions is not excluded under private law relating to neighbours (see Stuttgart Higher Regional Court (Oberlandesgericht), judgment of 24 August 1999 Zeitschrift für Umweltrecht — ZUR — 14 U 57/97 -, ZUR 2000, p. 29). As a result, the question as to whether there has been a violation of the freedom of scholarship of universities in particular must be included in the review.

b) § 36a GenTG is compatible with Article 14 GG.

aa) In conjunction with §§ 906, 1004 BGB, which are part of the provisions on the content and limits of property under Article 14.1 sentence 2 GG (see BVerfGE 72, 66 <75-76>), the provision governs the legal relations between neighbours with neighbouring plots.

§ 36a GenTG is not an independent liability provision, but puts into concrete terms and supplements the existing strict liability of originators of nuisance in private law relating to neighbours (§§ 1004, 906 BGB). In the interpretation and application of central concepts of the legislation on law relating to neighbours, § 36a GenTG lays down mandatory rules of interpretation and so ensures that a defensive claim and claim for compensation under the law relating to neighbours exists in the cases in which introductions of GMOs, in particular in the form of unintended cross-pollination, materially interfere with the use of another person's land (§ 36a.1 to 36a.3 GenTG). In addition, private law relating to neighbours is supplemented by a provision which removes difficulties in the proof of causality (§ 36a.4 GenTG).

Not only do these new rules on liability take up § 906 BGB and its elements in the wording of § 36a.1 to 36a.3 GenTG, but they are also integrated into the structure of the liability of originators of nuisance in the law relating to neighbours. As previously, the law is that material impact which is either not customary in the locality, or customary in the locality but can be prevented with reasonable financial effort, need not be accepted. Interference of this kind is unlawful. In general, the persons affected have a defensive claim for forbearance or removal under § 1004.1 BGB. If, on the other hand, a neighbour must tolerate impact, there may be a claim to reasonable money compensation under § 906.2 sentence 2 BGB or by analogy to this provision (claim for compensation under the law relating to neighbours). This is without prejudice to protective precautions under § 23 sentence 1 GenTG and the claim to financial compensation under § 23 sentence 2 GenTG, in particular where a non-contestable release authorisation exists which was granted after a hearing (§ 18.2 GenTG).

Admittedly, there is no provision comparable to § 36a.4 GenTG in the Civil Code. However, the provision may be regarded as the further development of the case-law of the Federal Court of Justice on the joint and several liability of more than one landowner from whose land the interference issues and on the application of § 830.1 sentence 2, § 840 BGB and § 287 ZPO to the claim to compensation under the law relating to neighbours under § 906.2 sentence 2 BGB (see BGHZ 66, 70 <77>; 85, 375 <386-387>; 101, 106 <111 et seq.>).

This interpretation is supported by the parliamentary background materials, which show that § 36a.1 to 36a.3 GenTG were intended to put into concrete terms central elements of the provisions on law relating to neighbours (§§ 906, 1004 BGB) and § 36a.4 GenTG was intended to enact joint and several liability according to § 830.1 sentence 2, § 840.1 BGB (see BTDrucks 15/3088 p. 31).

§ 36a GenTG therefore, by its meaning and purpose, is shown to be a provision on the liability of originators of nuisance under the law relating to neighbours. This does not create a new type of liability in the system of the private law relating to neighbours. §§ 906, 1004 BGB also govern the coexistence of neighbours.

Under the case-law of the Federal Court of Justice, the claim to reasonable compensation by analogy to § 906.2 sentence 2 BGB does not create strict liability (see BGHZ 155, 99 <103-104>). For in contrast to strict liability for a dangerous installation in the relationship between neighbours, the claim for compensation under the law relating to neighbours by analogy to § 906.2 sentence 2 BGB does not concern taking responsibility for damage which arises solely from the lawful presence of an installation or a permitted activity, but liability for nuisance from land use in accordance with its purpose which is unlawful but which has to be tolerated for factual reasons. The case-law of the Federal Court of Justice holds that the compensation is assessed, as in § 906.2 sentence 2 BGB, pursuant to the principles on compensation for expropriation (see Federal Court of Justice (BGH), judgment of 30 May 2003 - V ZR 37/02 -, NJW 2003, p. 2377 <2380> with further references). This obligation to pay compensation under the principles of the law relating to neighbours does not necessarily coincide with a claim to damages; on the contrary: there is scope for an evaluative decision (see BGH, judgment of 30 May 2003 - V ZR 37/02 -, NJW 2003, p. 2377 <2380>).

Competing farmers whose agriculture is either conventional or organic, just like other persons responsible for interference, are also subject to no-fault liability as originators of nuisance in the law relating to neighbours. The reference to public-law limits (§ 906.1 sentences 2 and 3 BGB) is as familiar in the liability of originators of nuisance under the law relating to neighbours as is the presumption of cause to overcome difficulties in proving causality where there is more than one causer (§ 830.1 sentence 2 BGB and § 287 ZPO). The fact that it may be impossible to appropriately calculate and insure against the risks of a use of land does not exclude the liability of an originator of nuisance under the law relating to neighbours. If, therefore, the users of GMOs were exempted from the no-fault liability in the law relating to neighbours, this would ultimately not remove a disadvantage, but would treat them more favourably than other persons responsible for interference.

bb) § 36a GenTG provides whether and subject to what requirements, for the introduction of GMOs, defensive claims under § 1004 BGB and compensation claims under or by analogy with § 906.2 sentence 2 BGB may be asserted against land owners or users of the land from which the interference issues.

Like §§ 906, 1004 BGB, the provision lays down rights and duties of the landowners in general abstract terms and is thus a provision determining the content and limits of ownership under Article 14.1 sentence 2 GG. The provision complies with the constitutional requirements to which such a provision determining content and limits is subject.

(1) The provision is sufficiently specific.

The reference to provisions on the labelling of products which are also promulgated by another legislature, especially the European legislature, and may be amended by it, is unobjectionable.

Under § 36a.1 nos. 2 and 3 GenTG, the obligation to label products as genetically modified (no. 2) or the loss of a possibility of labelling with regard to a particular method of production (no. 3), as the consequence of an introduction of GMOs, are a material interference with ownership within the meaning of § 906 BGB. § 36a.1 nos. 2 and 3 GenTG, therefore, does presuppose the existence of "provisions" or "legal provisions" on labelling, in order to define a fact situation which triggers the defensive claim under § 1004.1 in conjunction with § 906.1, 906.2 sentence 1 BGB or the compensation claim under § 906.2 sentence 2 BGB. However, this is not a reference to the relevant labelling provisions. Neither do these become part of § 36a.1 nos. 2 and 3 GenTG, nor are their area of application, status or quality altered. Instead, the legislature has described a legal situation which is detrimental to the person making the claim and whose consequences are to be attributed to the person against whom the claim is made as the person responsible. A comparable form of drafting with the assistance of a general clause can be found in § 823.2 BGB, which presupposes the existence of protective statutes.

Apart from this, the legislature also made all the material decisions itself. It is the intention of the legislature that the defensive claim under § 1004.1 in conjunction with § 906.1, 906.2 sentence 1 BGB and the compensation claim under § 906.2 sentence 2 BGB are to exist if the person entitled to use a neighbouring plot of land is subjected to a statutory duty of labelling or loses a statutory possibility of labelling which is to his benefit on account of the transfer or other introduction of GMOs. The requirements for labelling may of course change, for example as a result of the lowering or raising of particular threshold values. This is without prejudice to the fundamental decision of the legislature, relevant for liability, that a legal labelling duty or the loss of the possibility of labelling attributable to the originator of the nuisance constitutes a material interference with the use of the neighbouring land. It also includes an aggravation of liability as a result of the reduction of labelling threshold values.

Nor are there objections to § 36a.1 GenTG with regard to the constitutional requirement of certainty insofar as the groups of cases of material interference have not been exhaustively laid down ("including without limitation").

§ 36a.1 GenTG defines and puts into concrete terms the indefinite legal concept contained in § 906 BGB of "material interference" in connection with the introduction of GMOs. Where the legislature has not exhaustively described the cases of material interference ("including without limitation"), this takes account of the large number of conceivable sets of circumstances; at present it may be impossible to envisage the complete range of these.

(2) The legislature also put the interests of those involved and the public interest in a just equilibrium and a well-balanced relationship (see BVerfGE 87, 114 <138>; 95, 48 <58>; 98, 17 <37>; 101, 239 <259>; 102, 1 <17>).

(a) In including § 36a GenTG, the legislature pursues legitimate public-interest aims.

These arise both from the function of the provisions of the law relating to neighbours (in particular § 906 BGB) which are supplemented and put into concrete terms by § 36a GenTG and also from the aims of the Genetic Engineering Act (§ 1 GenTG).

(aa) Like § 906 BGB, § 36a GenTG is intended to achieve the necessary balancing of interests of persons with neighbouring plots of land in the case of particular types of impact issuing from another plot. This provision too protects the landowners affected by impacts in their freedom guaranteed by Article 14.1 GG to use their property according to their own wishes and to decide freely on the use of their property. Like §§ 1004, 906 BGB, § 36a GenTG gives originators of nuisance the factual and financial responsibility for the (material) types of impact issuing from their land. Where the originator has an obligation under § 1004 BGB or under or by analogy with § 906.2 sentence 2 BGB of forbearance, removal or appropriate compensation, the originator — and not uninvolved third parties or the general public — is liable for the costs arising from this. This attribution of liability is made on the reasoning that the originator of nuisance was responsible for the interference, that the originator can best and most effectively remove the interference, and that the originator benefits from the advantages arising from the interfering use of land. Finally, § 36a.4 GenTG, like § 830.1 sentence 2 BGB, has the aim of overcoming a problem of evidence of the person harmed. The latter's claim to compensation is not to fail because it is impossible to determine with complete certainty which of several persons involved whose act may have caused the harm or the interference, was the actual originator (see BGHZ 55, 96 <98>; 101, 106 <111>). The interest of the owner, user or operator of an installation to be made liable only to the extent that he or she has a (contributory) responsibility for the interference is taken into account in the following way: the impact to be attributed to the owner, user or operator must have been suitable in the actual circumstances of the individual case to cause the interference (§ 36a.4 sentence 1 GenTG). Joint and several liability is here based on the point of view, which applies under § 840.1 BGB, that the injured person may not be burdened with the risk to which he or she would be exposed if more than one causer of the damage were only proportionately liable.

(bb) In protecting neighbours, § 36a GenTG also serves to implement coexistence, which was made part of the statutory purpose by the Genetic Engineering Reform Act 2004 (§ 1 no. 2 GenTG) and the European concept of coexistence (Article 26a of Directive 2001/18/EC; see BTDrucks 15/3088, p. 30). Under § 1 no. 2 GenTG, it is the aim of the Act to guarantee that products, in particular food and feed, may be produced and placed on the market both conventionally or organically and with the use of genetic engineering. As set out above, the basis of this objective is Article 12.1 and Article 14.1 GG.

In order to implement this aim, § 36a GenTG is to ensure that a defensive claim and claim for compensation under the law relating to neighbours exists in cases in which introductions of GMOs, in particular in the form of unintended cross-pollination, materially interfere with the use third-party property (see BTDrucks 15/3088, pp. 19 and 30). While the precautionary duty and good professional practice achieve the responsible treatment of GMOs, and material interference made by introductions of these organisms to the legal interests and concerns set out in § 1 nos. 1 and 2 GenTG is to be avoided from the outset, § 36a GenTG serves to guard against interference with property (which occurs despite this) and to compensate associated property loss of neighbouring producers (see BTDrucks 15/3088, p. 30). The freedom of choice of producers is to be preserved and the property in the crops involved to be protected (see BTDrucks 15/3088, p.19). The exercise of one method of production is not to lead to an economic threat to the persons who use another method.

The guarantee of coexistence (§ 1 no. 2 GenTG) is also intended to preserve the freedom of choice of consumers by the provision of a broad, transparently labelled range of products, certainty of law and reliability in planning is to be ensured for all sides, and beyond the discussion of risks an amicable coexistence of the various methods of production and social peace is to be achieved (see BTDrucks 15/3088, pp. 19 and 21).

Finally, § 36a GenTG implements the European concept of coexistence on the national level. This gives additional weight to the purposes pursued in § 36a GenTG. In particular the aim of giving farmers a free choice between conventional or organic cultivation methods or genetically modified crops, on compliance with the rules for labelling and/or varietal purity, and also the aim of giving consumers the free choice between products free of genetic engineering and products produced with genetic engineering, are central concerns on the European level too (see Commission Recommendation of 13 July 2010 on guidelines for the development of national co-existence measures to avoid the unintended presence of GMOs in conventional and organic crops, OJ C 200, p. 1). Insofar as § 36a.1 no. 1 GenTG defines as a material interference the prohibition of placing on the market by reason of the introduction of GMOs without the corresponding authorisation for marketing, this conforms with the prohibition under European law of cultivation and marketing of GMOs which are not permitted to be placed on the market as products or in products (Article 6.9, Article 19.1 of Directive 2001/18/EC).

(cc) § 36a GenTG also promotes the aims of § 1 no. 1 GenTG and thus the protection of important values of constitutional status, such as human life and health, the environment, but also the freedom of property of persons potentially affected (Article 2.2 sentence 1, Article 14.1 and Article 20a GG). § 36a GenTG supports these aims, not only as a preventive instrument to enforce the precautionary duty and good professional practice. Another element which serves to protect the interests set out in § 1 no. 1 GenTG against possible dangers of genetic engineering is the concretisation and supplementation of the provisions of the law relating to neighbours, which gives the neighbour the possibility to avert (particular) introductions. This applies in particular where the organisms are not yet permitted to be placed on the market (§ 36a.1 no. 1 GenTG).

(dd) § 36a GenTG also implements the purpose of creating the legal framework for research into and development, use and promotion of the scientific, technological and economic possibilities of genetic engineering (§ 1 no. 3 GenTG). The release and the cultivation of genetically modified crops are fundamentally accepted. As a rule, neighbours must tolerate interference resulting from introductions of GMOs insofar as statutory tolerance values are not exceeded or the methods of good professional practice are followed. The equal treatment from the point of view of liability of the cultivation of genetically modified plants and traditional cultivation (§ 36a.3 GenTG) is capable of promoting the use of genetically modified crops on a large scale.

(b) In view of the broad latitude which Article 14.1 sentence 2 GG gives the legislature in determining the content and limits of property (see BVerfGE 53, 257 <293>), the concretisation and supplementation of private law relating to neighbours in § 36a GenTG is suitable and necessary to achieve the public interest aims pursued by the Act.

Nor is any equally suitable but less burdensome means apparent which the legislature could have chosen. Approaches to a solution such as the introduction of mediation proceedings and of special cultivation areas for genetically modified crops and for organic products rely on a different concept to overcome the coexistence problems and are not suitable to implement the aims pursued by § 36a GenTG in their entirety in a comparable way.

The possibility discussed in the legislative procedure of a voluntary liability fund of trade and industry was rejected by the seed industry (see Deutscher Bundestag, transcript of the 61st session of the Committee on Food, Agriculture and Consumer Protection (Wortprotokoll der 61. Sitzung des Ausschusses für Ernährung, Landwirtschaft und Verbraucherschutz) of 26 November 2007 - transcript no. 16/61 -, p. 12 question no. 3). The establishment of a liability fund at least partly financed by the state is not an equally suitable means to realise the aims pursued by § 36a GenTG. A liability fund serves other aims. Legally, the users of genetic engineering would be at least in part released from the responsibility for consequences they hold as originators of nuisance, and thus they would be treated more favourably than their competitions in conventional and organic production. From the point of view of the national economy, they would no longer have the incentive to take account of negative external effects of their activities in addition to private or business costs. Harmful effects of the use of land for third parties would be borne by the public by way of the state liability fund, and in this way genetically modified products would be subsidised.

(c) Finally, this supplementation and concretisation of private law relating to neighbours is an appropriate and well-balanced adjustment of the conflicting interests.

(aa) On the one hand, the supplementation and concretisation of private law relating to neighbours by § 36a GenTG creates stricter basic conditions for the use of land for authorised release and authorised cultivation for placing on the market. In particular, without relevance of fault, there are claims under the law relating to neighbours even if introductions of GMOs cannot be prevented by the methods of good professional practice.

(bb) On the other hand, the requirement of mandatory interpretation rules for central elements of the provisions of law relating to neighbours results in more certainty of law and reliability in planning for the users of genetic engineering too. Before § 36a GenTG was introduced, the courts applied §§ 1004, 906 BGB to introductions of DNA by pollen, seeds or in another way, but established case-law had not yet developed. As a result of existing latitude for interpretation, the legal position was unclear, not only for those potentially affected, but also for the users, and therefore the liability risk was difficult to calculate. This situation has now improved. Thus, § 36a.1 nos. 2 and 3 GenTG link the existence of a material interference to threshold values defined in Community law and also in German law, that is, to normative standards which apply to the persons entitled to use who are involved, and for which neighbours can prepare themselves. The equal treatment under liability law of the cultivation of genetically modified plants and traditional cultivation (§ 36a.3 GenTG) enables and encourages wide-scale cultivation of genetically modified plants in particular areas. It is not apparent that the users of genetic engineering have a relatively stricter "special liability" and are unprotected against impacts from neighbouring agriculture. Where material interference under §§ 1004, 906 BGB issues from neighbouring fields which are farmed without the use of genetic engineering, they may also avert this or, where they are obliged to tolerate it, claim appropriate financial compensation. The no-fault liability of originators of nuisance under the law relating to neighbours here also lays down the basic conditions for the practice of an occupation or profession of farmers who work conventionally or organically. With regard to the easing of proof laid down in § 36a.4 GenTG, established case-law of the Federal Court of Justice contains comparable principles under the general provisions of the law relating to neighbours (see BGHZ 101, 106 <108>).

The liable owners and users of land were also the causers of any interference; the removal of the interference depends on their will and they enjoy the advantages arising from the interfering use. The landowner's responsibility for the situation results from the physical control of the property and the advantages, but also burdens, associated with it. Just as under applicable law the advantages of the private use of the property accrue to the owner even if they arise without the owner's involvement, so the owner must in other cases bear the burdens of the property even if the danger was not caused by the owner (see BVerfGE 102, 1 <19>).

(cc) The intended balancing of interests between neighbouring owners and users of land, the securing of the coexistence of various agricultural crops and the protection and taking of precautions against the dangers of genetic engineering protect in particular ownership and occupational freedom, human life, health and the environment as interests of constitutional status which would otherwise be endangered. Other important public interests which are also recognised under European law, such as the protection of consumers, are strengthened. If one includes these constitutionally protected rights in the weighing of the rights and interests which are affected, the weighting made by the legislature is unobjectionable.

c) § 36a GenTG encroaches upon the freedom to practice an occupation or a profession under Article 12.1 GG, but this is constitutionally justified.

aa) The business use for profit of a plot of land from which interference issues falls under the protection of Article 12.1 GG. The fact situations governed by § 36a GenTG relate not exclusively, but typically, to occupation-related conduct protected by Article 12.1 GG. § 36a GenTG lays down the basic legal and economic conditions for individual occupational activity using GMOs and also serves as a preventive instrument for the legislature to promote the development, use and implementation of good professional practice in dealing with these organisms. In this respect, § 36a GenTG differs from § 906 BGB, which covers both occupational and private use of land.

§ 36a GenTG must therefore be measured against Article 12.1 GG as well as against Article 14.1 GG.

bb) § 36a GenTG does not contain a direct encroachment. However, the protection of fundamental rights is not restricted to direct encroachment. Article 12.1 GG also develops its protective effect here vis-à-vis provisions or acts which, although they do not relate directly to an occupation, nevertheless have an objective tendency to regulate an occupation or profession (see BVerfGE 95, 267 <302>; 97, 228 <254>; 111, 191 <213>; established case-law).

The supplementation and concretisation of the private law relating to neighbours in § 36a GenTG is suitable to influence and restrict the free practice of an occupation or profession. This applies in the first instance to the economic consequences of a liability event, which may have substantial effects on individual users of genetic engineering and be of decisive significance for their later occupational activity. In addition, persons who use land for profit are given an incentive to avoid a case of liability by complying with good professional practice (§ 16b GenTG) and to assess the costs incurred by their decisions within the framework of the exercise of their occupation or profession and their participation in the market. This may influence the choice of the means, the scope and the specific organisation of the activity in the same way as the decisions on the nature, quality and price of the goods produced for the market. The supplementation and concretisation of provisions of the law relating to neighbours here typically include the for-profit use of land protected by Article 12.1 GG and create the basic conditions for the practice of an occupation or a profession in this way. The legislature uses liability not only to balance the conflicting interests of neighbouring owners and users of land, but also as a preventive instrument to promote the development, use and implementation of good professional practice in dealing with GMOs and to guarantee the coexistence of different forms of agricultural cultivation.

The situation would be no different if one were to regard § 36a GenTG as a mere concretisation of what would in any case have applied under § 906 BGB and the case-law of the Federal Court of Justice. Admittedly, the general rules of the law relating to neighbours are basic conditions for the practice of an occupation or a profession which happen to apply to this incidentally. But in contrast to § 906 BGB, § 36a GenTG regulates the practice of an occupation or profession as an independent aim, not merely incidentally. In § 36a.1 to 36a.3 GenTG, the legislature gave concrete shape to central elements of liability under the law relating to neighbours under §§ 1004, 906 BGB by introducing mandatory interpretation rules and in this respect deprived the courts of the possibility of interpretation and of applying the law on a case-by-case basis. This occurs specifically in relation to fact situations which are typically based on the occupational or professional use of land. The provision in § 36a.4 GenTG, which serves to overcome difficulties in proving causality, is binding in the area of application of genetic engineering law for all those applying the law, whereas the Civil Code has no provision to this effect in addition to the provisions in § 830.1 sentence 2 BGB and § 287 ZPO, which are applied in case-law by analogy.

cc) The indirect encroachment upon occupational freedom is constitutionally justified.

(1) There are no constitutional objections to § 36a GenTG from the point of view of protection of public confidence, conveyed by an authorisation of placing on the market. In the case of the commercial cultivation of genetically modified plants, the holder of the authorisation is in any case generally likely to be not the farmer who is liable under §§ 1004, 906 BGB, § 36a GenTG, but the producer of the seed permitted to be placed on the market. At all events, the holder of an authorisation may not, by reason of the public-law authorisation, rely with effect for third parties on the authorised use causing no interference or harm.

The authorisation has no effect with regard to civil liability, with the exception of the express bar on defensive claims in § 23 sentence 1 GenTG, it transfers no responsibility for interference to the state and it creates no basis of trust which would prevent later liability. Accordingly, Article 7.7 and Article 19.7 of Regulation (EC) No 1829/2003 provide that the grant of authorisation does not restrict the general civil and criminal liability of the food and feed enterprises with regard to the food or feed in question. Nor is it relevant whether the holder of an authorisation under genetic engineering law was subject to public-law requirements and whether these were satisfied. Such public-law duties are intended to keep the risks of the alteration of genetic material as small as possible in the public interest. However, they do not have the function of exempting an originator of nuisance or damaging party from responsibility under civil law.

(2) § 36a GenTG is a provision governing of the practice of an occupation or profession which is not disproportionate.

For the same reasons for which the provision is to be seen as a permissible provision determining the content and limits of ownership for the use of real property, it also, under the aspect of regulating the exercise of an occupation or a profession, serves legitimate public-interest aims and is suitable, necessary and appropriate to pursue these.

dd) Insofar as the freedom to engage in business activities of persons not covered by the area of protection of Article 12.1 GG can be restricted, this constitutes an encroachment upon the general freedom of action (Article 2.1 GG), which is justified for the same reasons.

d) The freedom of scholarship guaranteed by Article 5.3 sentence 1 GG is also not violated.

aa) The supplementation and concretisation of the private law relating to neighbours in § 36a GenTG is qualified to influence and restrict the free practice of scholarship. The provision lays down the conditions for civil-law responsibility of scholars for consequences and thus changes the basic conditions of free research. The concrete risk of liability, the consequences of a liability event and the expenses incurred for precautionary measures are factors which can be of decisive importance for the decision on the formulation of questions, scope and practical implementation of a research project. Through strict, no-fault liability, research can be guided in such a way that risks are considered at an early stage and experiments are organised and carried out in such a way that introductions of GMOs on other plots of land and associated disadvantages for third parties and the general public are avoided or reduced to a minimum.

bb) This encroachment upon the freedom of scholarship is justified.

In the area of land use for research work with GMOs, a number of fundamental rights and constitutionally protected interests confront each other. For the constitutional foundation of the aims pursued in § 36a GenTG is found in particular in Article 2.2 sentence 1, Article 12.1, Article 14.1 GG and in the state aim of protection of natural resources in Article 20a GG. These are constitutional values which also justify the restriction of the freedom of scholarship.

The legislature endeavoured to find a balance between the conflicting legal positions. This concern is shown not only in the public-interest aims pursued by § 36a GenTG, but also in the grounds of the Federal Government bill on the Genetic Engineering Amendment Act 2008. This states that the provisions of genetic engineering law were to be so drafted that they promoted research into and application of genetic engineering in Germany. But at the same time the protection of human beings and the environment were to remain the highest aim of genetic engineering law, pursuant to the precautionary principle. The freedom of choice of farmers and consumers and the coexistence of the different types of agricultural crops were to continue to be guaranteed (BTDrucks 16/6814, p. 10).

In accordance with these objectives, in addition to the basic acceptance of the release and cultivation of genetically modified crops, in particular alleviations of procedure help the legislature to advance research in the field of "green" genetic engineering. On the other hand, the legislature uses strict civil-law liability to impose limits on research where third-party rights are endangered or interfered with.

The solution chosen by the legislature takes sufficient account of the constitutionally protected legal interests involved and complies with the constitutional requirements.

It is true that § 36a GenTG, in order to protect conflicting legal interests, subjects free scholarship and research to the same strict liability as also applies to the use of GMOs for other purposes. If organisms not permitted to be placed on the market are released for research purposes, introductions at the limit of detection may already result in a material interference and the associated no-fault liability under the law relating to neighbours (§ 36a.1 no. 1 GenTG). If GMOs permitted to be placed on the market are examined and tested, the methods of good professional practice must be observed (§ 16b.2 and 16b.3 GenTG). Under § 36a.2 GenTG, these are held to be financially reasonable. Research is not exempted from liability either where a material interference cannot be prevented in advance by protective measures and good professional practice. In the area of research, the risk of a certain degree of gene transfer, which may possibly be unavoidable in cultivation on open fields, is also borne by the users of the land from which the interference issues. They must therefore take particular care in selecting suitable locations for the experimental introduction of GMOs into the environment. But despite this strict liability, the legislature assumes that it can implement the purpose promoted by § 1 no. 3 GenTG and make a contribution to securing Germany as a research location. Its assumption that it can promote research while at the same time protecting humans and the environment and maintaining coexistence is defensible.

In the weighing of the opposing interests, it must be taken into account in favour of the freedom of scholarship that precisely a scholarship freed from considerations of utility for society and political expedience ultimately serves the state and society best (see BVerfGE 47, 327 <369-370>). Research in the field of "green" genetic engineering, whether it be the research on the potential risks involved, development research or accompanying research, is also of great importance for the public good and as a general rule serves to protect essential concerns such as human health and the environment. The deliberate release of GMOs is in most cases a necessary step on the way to the development of new products which are derived from such organisms or contain them (see Recital no. 23 of Directive 2001/18/EC). By the "step by step" principle, the containment of such organisms may only be reduced step by step and the scale of their release be increased if the evaluation of the previous step in terms of protection of human health and the environment indicates that the next step can be taken (see Recital no. 24 of Directive 2001/18/EC). No GMOs, as or in products, may be considered for placing on the market without first having been subjected to satisfactory field testing at the research and development stage in ecosystems which could be affected by their use (see Recital no. 25 of Directive 2001/18/EC). After placing on the market, there is surveillance and monitoring during marketing. New or additional scientific knowledge of dangers to human health or the environment may authorise a Member State to temporarily restrict or to forbid the use and sale of a GMO as or in a product. Research using GMOs permitted to be placed on the market may serve the coexistence of the various agricultural crops by providing the foundations for the development of good professional practice. Finally, the interaction of the GMO introduced into the environment with a surrounding ecosystem is not a mere unintended incidental consequence, but the essential subject of the examination. This may be the case when in connection with scientific projects basic data on the coexistence of forms of cultivation with or without genetic engineering are to be collected, evaluated and converted into recommendations for practice. But in development research and research on the potential risks involved too, the spread of the GMO in the environment may be a necessary part of an experiment.

For the benefit of the conflicting legal interests of constitutional status — ownership and occupational freedom, human life, health and the environment — the weighing must also take account of the fact that research into GMOs may endanger these interests. In particular the research on the potential risks involved and the development research before approving a GMO for the market may have a high degree of potential risk, since it may still be unclear how this organism functions and what harm it causes to humans, plants, animals and biodiversity. The experimental cultivation of GMOs permitted to be placed on the market may on the one hand encourage the amicable coexistence of the various agricultural crops by obtaining data on coexistence, but on the other hand it may interfere with the conflicting interests (in particular Article 12.1, Article 14.1, Article 20a GG) through cross-pollination or other introductions of these organisms on neighbouring land. It is true for every area of research that it may not be possible to recover organisms once they are deliberately introduced or accidentally released into the environment, and interference with or harm to third-party legal interests or the environment may therefore be irreversible.

If these aspects are included in the consideration, the weighting undertaken by the legislature in § 36a GenTG for the benefit of the conflicting public-interest concerns is unobjectionable. The limit of reasonableness is not exceeded even for the owners or users of land who act for research purposes.

e) § 36a GenTG does not violate the principle of equality before the law.

The general principle of equality (Article 3.1 GG) demands that all people be treated equally before the law. However, this does not prohibit the legislature from all discrimination. Depending on the object of constitutional regulation and the distinguishing elements, the legislature is confronted with different limits, reaching from the mere prohibition of arbitrariness to a strict requirement of proportionality.

In § 36a.1, 36a.2 and 36a.4 GenTG the persons who use a plot of land and employ genetic engineering and therefore fall into the area of application of the provisions which put into concrete terms and supplement the private law relating to neighbours are not given equal treatment to other persons responsible for interference, who are liable under general civil law relating to neighbours. Even if the liability provisions in this way always relate to different groups of persons, the concern is the different treatment of different fact situations, that is, the use of GMOs in contrast to other use of land. The legislature is therefore bound only by the standard of arbitrariness.

The legislature based the discrimination on pragmatic criteria. § 36a.1 nos. 1 to 3 GenTG links the unequal treatment to a legal position which applies to the persons affected who are entitled to use in connection with introductions of GMOs, and to disadvantages arising from this. Comparable duties of authorisation and labelling for genetically modified products which could be triggered by introductions from conventional or organic production do not exist at present. In § 36a.2 GenTG, the unequal treatment is tied to a particular legal situation which applies only to those who deal with GMOs permitted to be placed on the market. § 36a.4 GenTG is based on the desire to legislate for the area of genetic engineering law on the principles developed by case-law for other persons responsible for interference as part of the general liability of originators of nuisance.

In this differentiation, the legislature pursues the legitimate public-interest aims set out above and enshrined in constitutional law. These are so important that they justify not only the encroachment upon Article 12.1, Article 14.1 and Article 5.3 sentence 1 GG, but also the unequal treatment of various groups of persons who are responsible for interference, and all the more the unequal treatment of fact situations.