Federal Constitutional Court - Press office -

Press release no. 108/2010 of 24 November 2010

Judgment of 24 November 2010 – 1 BvF 2/05 –

Application for judicial review in the matter of the 
Genetic Engineering Act is unsuccessful


The First Senate of the Federal Constitutional Court today pronounced 
its judgment in the proceedings on an abstract judicial review brought 
by the government of the Land Saxony-Anhalt against provisions of the 
federal Genetic Engineering Act (Gesetz zur Regelung der Gentechnik - 
GenTG) on 

- the definitions “genetically modified organism” and “placing on the 
  market” (§ 3 nos. 3 and 6 GenTG),
- genetically modified organisms location register (below: location 
  register; § 16a GenTG),
- the treatment of products placed on the market (§ 16b GenTG) and 
- claims in the case of interference with use (§ 36a GenTG)

and held that § 3 nos. 3 and 6, § 16a.1 to 16a.5, § 16b.1 to 16b.4 and § 
36a of the Genetic Engineering Act as most recently amended by Article 1 
of the Act to Amend the Genetic Engineering Act, to Amend the Law on 
Implementing EU Genetic Engineering Legislation 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 Neuartige Lebensmittel- und 
Lebensmittelzutatenverordnung) of 1 April 2008 (Federal Law Gazette 
(<Bundesgesetzblatt - BGBl> I p. 499) are compatible with the Basic Law 
(Grundgesetz - GG). 

Information on the application for judicial review is given in Press 
Release no. 29/2010 of 5 May 2010. It can be accessed on the Federal 
Constitutional Court’s website (in German). 

In essence, the decision is based on the following considerations: 

The challenged provisions are procedurally and substantially 
constitutional. 

1. The legislative competence of the Federal legislature is based on 
Article 74.1 no. 26 second alternative of the Basic Law, which gives the 
Federal legislature comprehensive competence to make law on genetic 
engineering, which includes human genetic engineering and animal and 
plant genetic engineering. 

2. Where the challenged provisions encroach upon the fundamental right 
to informational self-determination (Article 2.1 in conjunction with 
Article 1.1 GG), the freedom of science and research (Article 5.3 
sentence 1 GG), occupational freedom (Article 12.1 GG) and the 
fundamental right to property (Article 14.1 GG), this is justified. 

a) In the challenged provisions, the legislature pursues legitimate aims 
of public interest, in the realisation of which it must be accorded a 
broad discretion, particularly against the background of the broad 
social and scientific debate on the use of genetic engineering and 
appropriate government regulation. 

In its possibility of deliberately creating changes in genetic makeup, 
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. 
The legislature has a particular duty of care in view of the fact that 
the state of scientific knowledge has not yet been finally established 
when assessing the long-term consequences of the use of genetic 
engineering. In making law, it must not only balance the 
constitutionally protected interests affected by the use of genetic 
engineering on the one hand and their regulation on the other hand, but 
must similarly comply with the duty contained in Article 20a GG to also 
protect natural resources with responsibility for future generations. 

The intended protection in particular of humans, the environment and the 
property of others against harmful effects of genetically modified 
organisms and providing against such dangers coming into existence (see 
§ 1 no. 1 GenTG), ensuring the coexistence of a variety of agricultural 
forms of production (see § 1 no. 2 GenTG) and the balancing of interests 
between adjoining landowners protects in particular human life, health 
and the environment, and also the fundamental right to property and 
occupational freedom, as interests with constitutional status which 
would otherwise be jeopardised. Other important public interests which 
are also recognised under European law, such as the protection of 
consumers and informing the public, are strengthened. In this respect, 
the creation of transparency with regard to the deliberate release of 
genetically modified organisms into the environment, which is intended 
to follow from the establishment of the location register, makes an 
important contribution to the formation of public opinion and 
constitutes an independent and legitimate purpose of legislation. In 
order to create such transparency, it is permissible to make particular 
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 data generally accessible to 
the public, even if they are of a personal nature. 

b) The provisions challenged are suitable and necessary to achieve these 
objects. They are also appropriate. 

aa) In amending the definitions of “genetically modified organism” and 
“placing on the market” (§ 3 nos. 3 and 6 GenTG), the legislature 
ensured that approved experimental release into the environment and its 
unintended consequences are also subject to the state’s powers of 
supervision and intervention under the Genetic Engineering Act. The fact 
that these are unintended or technically unavoidable events does not 
decrease the risk entailed by the release of genetically modified 
organisms 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. In addition, the legislature would risk not complying with 
its responsibility to protect natural resources. 

bb) The location register contains details on the experimental release 
and cultivation of genetically modified organisms for the whole 
territory of the Federal Republic of Germany, in order to make it 
possible to surveil and monitor any effects of these organisms, in 
particular on humans, on the environment and on conventional and organic 
farming and to inform the public. In dividing the location register (§ 
16a GenTG) 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 persons involved on the other 
hand. It may in particular not be raised as an objection to the 
statutory provisions that the location register increases the likelihood 
of wilful destruction of genetically modified cultures. Even before it 
was introduced, there were repeated obstructions of the release and 
cultivation of genetically modified organisms; these must be dealt with 
by the means of police law and criminal law. 

cc) The challenged provisions on the treatment of products placed on the 
market in § 16b GenTG leave the authorities and non-constitutional 
courts enough latitude to comply proportionately with their 
precautionary duty, with best practice standards and with the 
requirements of suitability of persons and equipment in the individual 
case. This relates in particular to the question of what in the 
individual case constitutes precautionary duty and professional practice 
standards. The requirements, which are broadly defined here, make it 
possible for the de facto basic conditions of treatment of genetically 
modified organisms to be appropriately taken into account and for the 
scope of the duties to be restricted to the degree which is necessary in 
the individual case to avoid substantial interference with the protected 
interests of § 1 nos. 1 and 2 GenTG. 

dd) § 36a GenTG does not create a new type of special liability for the 
use of genetically modified organisms, but supplements and puts into 
concrete terms the existing strict liability of originators of nuisance 
in the private law relating to neighbours (§§ 1004, 906 of the German 
Civil Code); the provision is integrated in the structure of this. This 
supplementation and concretisation of private law relating to neighbours 
achieves an appropriate and well-balanced adjustment of the conflicting 
interests by contributing to an amicable coexistence of conventional, 
organic and genetically modified-crop production and a genuine freedom 
of choice for producers and consumers. 

ee) Taken as a whole, the weighting made by the legislature in each case 
in favour of the aims of public interest pursued is unobjectionable, in 
particular against the background of the fact that the effects of 
genetic engineering have not yet been finally established, and the limit 
of reasonableness is not exceeded for the persons who are addressed by 
the statute - even where they act for the purpose of research. 

3. The principle of equality before the law of Article 3. 1 GG is also 
not violated. Where fact situations are treated unequally, this is based 
on special factual and legal features of the use of genetic engineering 
and is justified by the public interest aims of the legislature. 


This press release is also available in the original german version.