FoE Europe - GMOs

Liability for GMOs

Damage caused by GMOs to the environment and human health, or economic loss to farmers whose crops may be contaminated by GMOs; is not adequately addressed by any EU legal framework.

Liability for damage caused by GMOs to the environment and human health is not covered in the revised EU Deliberate Release Directive (2001/18/EC repealing 90/220/EEC). Despite promises made at the time the 2001/18/EC was adopted - that GMOs would be covered in separate legislation - the recently adopted EU Directive on Environmental Liability with regard to the prevention and restoration of environmental damage, fails to address the problem. Although GMOs are mentioned in the Annex of the Liability Directive, the Directive contains so many exemptions, that it would be hard to find a real-life example whereby damage caused by GMOs could be covered. For example: the Directive only applies to areas and species with a special protection status (see below for more details) and therefore not to the vast majority of agricultural areas, which is where most of the damage caused by GMOs can be expected. Friends of the Earth believes that it is ridiculous to exclude most of Europe's biodiversity from the regime and insists that the whole territory of the EU, including agricultural land, should be covered by a future environmental liability regime for GMOs. As far as economic damage caused by GMOs is concerned: there is no specific liability regime in case organic and conventional farmers (or any other operator in the food chain) suffer losses when products are contaminated by GMOs. According to the European Commission the Member States should "examine existing civil liability laws" (Recommendation on co-existence2003/556/EC) in order to find out if these national laws offer sufficient and equal possibilities in case of economic damage resulting from admixture. However, recently published legal advice (1) shows that under existing liability laws it will be increasingly difficult for the affected non-GM farmer or non-GM operator to prove who caused the contamination. The more farmers that grow GM, the more difficult it will be to demonstrate from which field the contamination was blown-in. Also the use of civil liability regimes will lead to legal cases of farmers against farmers, or neighbours against neighbours, which may cause unpleasant tensions in the countryside. Friends of the Earth, therefore believes that a specific regime for economic damage to non-GM operators as a result of GM contamination should be established. This regime should take away the burden to prove who caused the contamination from non-GM farmers and non-GM operators. This could for example be done via an industry-funded compensation funds.

GMOs and the Environmental Liability Directive.

The Environmental Liability Directive fails badly on several different points:

• The definition of biodiversity

• The exemptions provided for industry to escape liability

• The time-frame under which liability may apply

• The way in which prosecution and redress can be carried out

• The lack of provision for insurance or compensation funds.

Biodiversity

The new Directive restricts the definition of biodiversity to only sites and species covered by the EU's Habitats Directive and the Birds Directive, and places and/or species protected under national legislation in EU Member States. This means that the Directive will only apply to about 13% of the EU's territory, and will be irrelevant for the remaining 87%, despite the obvious fact that events may take place in that unprotected countryside that could have damaging or irreversible effects on biodiversity.

Exemptions
The Directive foresees a number of exemptions under which companies can escape liability altogether. For example, liability is precluded for operators in case of:

• "A specific emission or event expressly authorised, and fully in accordance with the conditions of, an authorisation conferred by or given under applicable national laws", and
• "Emissions or activities or any manner of using a product in the course of an activity which the operator demonstrates was not considered to cause environmental damage according to the state of scientific and technical knowledge at the time when the emission release or the activity took place".

These two considerations "Compliance with permit" and "state of the art" is not reconcilable with the main aims of this Directive: the principle of 'the Polluter Pays' and the principle that environmental damage should either be prevented or remedied.

Based on the above, any environmental damage caused by a GMO that has been authorised under EU legislation is clearly exempt from liability. Worse still, a company could escape liability by claiming that even an unauthorised GMO was not "considered harmful according to the state of scientific and technical knowledge at the time ".

The only way a company could be held liable for damage caused by a GMO would be if the GMO in question was not authorised, and the company could not prove that 'best science' did not foresee damaging effects. A GMO user (such as a farmer) could also be held liable if he did not follow the instructions for use of the GMO producer.

Timeframe and retroactivity

The new Directive foresees that competent authorities can "initiate cost recovery proceedings against an operator who has caused damage or imminent threat of damage" during a period of five years. FoE believes that there should be no time limitation under which GMO producers or operators can be made legally and financially responsible for any damage caused. The long-term impacts of GMOs on biodiversity are only just beginning to be understood. If a GMO producer or operator is liable, redress and compensation measures should not be hampered by time restrictions.

Furthermore, the Directive excludes activities that have been carried out before it enters into force. Since it is likely that the Directive will not be transposed in Member States' legislation before 2005 that implies that all GMOs already on the market or which may come onto the market in the interim period are excluded. This is on top of the fact that, under the exemptions described above, they are likely to be exempt from liability anyway.

Prosecution and redress

The Proposal places the responsibility for taking action against those who cause environmental damage, with the national competent authorities in the Member States. Competent authorities are therefore placed in the position of being both 'prosecutor' and 'authoriser' in some cases, since the CA may have been responsible for granting the operator a licence in the first place.

No compulsory rights of direct access to justice are given to affected person and NGOs where there is an imminent threat of damage. The Directive instead foresees that "natural or legal persons having a sufficient interest or alleging the impairment of a right " have the right to initiate legal action against the polluter. Member States are left to decide for themselves the definition of, "sufficient interest" and "impairment of a right".

Insurance/compensation fund

In case of so-called 'orphan damage' when the polluter cannot be identified, or is insolvent and cannot pay for the reparation of damage, the Directive suggests that Member States envisage the possibility of 'safety nets' in order to pay for restoration. Member States are left to decide for themselves how such 'safety nets' are financed, which could clearly lead to an additional burden on tax-payers.

There should be subsidiarity state responsibility under the Directive to ensure that if no operator can be found, the competent authority must be obliged to restore the damage. That might cause more commitment with higher environmental standards in the Member States.

BROKEN PROMISES

When the deliberate release directive was under revision, the Commission argued energetically against liability being included in the new Directive, promising repeatedly that the issue would be covered by the future EU Environmental Liability Directive. Now that the legislation is finally on the table, it is clear that those promises have not been kept; the Commission has undeniably failed to table legislation that goes anywhere near covering liability for damage caused by GMOs.

(1)Legal advice by Charles Pugh, commissioned by the Soil Association

FoE's Position Paper on the Proposal for a Directive of the European Parliament and of the Council on environmental liability.