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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.
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